Farquar and Farquar (No. 6)

[2008] FamCA 1199

FAMILY COURT OF AUSTRALIA

FARQUAR & FARQUAR (NO. 6) [2008] FamCA 1199

FAMILY LAW – COSTS

APPLICANT: Mr Farquar

RESPONDENT: Ms Farquar

INDEPENDENT CHILDREN’S LAWYER: Margaret Orwin

FILE NUMBER: DNC 431 of 2007

DATE DELIVERED: 7 November 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 7 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Holtham

SOLICITOR FOR THE RESPONDENT: David Story & Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Orwin

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Margaret Orwin Barrister

Orders

1. That the father pay to the wife’s solicitors on behalf of the wife the amount of FIVE HUNDRED AND SIXTY DOLLARS [$560.00] by way of costs thrown away on 4 September 2008 such amount to be paid by 30 June 2009.

2. That further consideration be adjourned to 9:30am (NSW) on Friday 3 April 2009.

3. That leave is granted to all parties and their legal representatives to attend the above hearing by way of telephone.

IT IS NOTED that publication of this judgment under the pseudonym Farquar & Farquar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 431 of 2007

MR FARQUAR

Applicant

And

MS FARQUAR

Respondent

EX TEMPORE REASONS

1. This matter was adjourned to today to hear the application for costs by the mother and also to further clarify when the father’s criminal proceedings will be heard.  A third issue was as to whether the matter might resolve as a result of proposals passing between the parties.  Dealing with the latter issue first, I am told that the matter has not resolved and it is still proceeding, and thus we are awaiting the completion of the criminal proceedings before this matter can resume. 

2. In relation to the second issue I am told by the father that he is next due to appear in the Supreme Court in March.  On that day an attempt will be made to list the matter for trial in that month of March.  That helps us in knowing that obviously we cannot come back to this case until at least March, and possibly April. 

3. Turning to the application for costs, Ms Holtham says there are circumstances justifying an order for costs being made in relation to the events and ultimate adjournment of the trial in September.  She seeks a total of $3,360, comprising $1,680 for one day's preparation and $1,680 for a day's court attendance in effect thrown away.  The calculation of that is an hourly rate of $280 at six hours per day. 

4. The circumstances put to me by Ms Holtham which justify an order for costs are that this matter was set to commence as a trial on 4 September.  When the matter was called on the father was not in attendance.  However, his partner was, and I was informed that the father had had an accident and he had hurt his neck and shoulder and arm in a fall and he had been taken to hospital, and that is why he was not in attendance.  I permitted his partner to speak at the bar table to convey that information to me and there was a medical certificate which she had and a note which had been dictated by the father which explained his predicament in very general terms.

5. I was somewhat concerned by the medical certificate.  I was told that it was thought that the father had suffered a spider bite and the effect of that had caused him to faint and have a fall.  The medical certificate which I was provided by his partner is contained in exhibit H1, and it simply says, "[The father] is continuing treatment for neck pain and is unfit for work from 3 September to 5 September."  That unfortunately did not coincide with what I was being told by his partner as to what was the cause of his absence.

6. Attempts were made to telephone the father, but without success.  His partner agreed at my request to speak to the father and see if he was available to attend the hearing that day, but later in the day by way of telephone.  The matter was stood over to await the result of that and listed again at about 2:00pm or 2:15pm later that day in anticipation of the father being able to attend by telephone.  The father was able to attend at that time by telephone and he indicated that he was in bed, that he could not walk, and that it was thought that he had suffered a spider bite and that he had had a fall and had hurt his shoulder and neck and arm, and he was in severe pain and he was unable to attend court. 

7. I was told that he could not remain on the telephone for very long.  He was expressing that he was in serious difficulties, and for that reason certainly could not attend court physically and was unable to conduct a lengthy telephone conversation.  I recall the question was raised as to whether the trial could proceed with the father attending by telephone, and he indicated that simply was not possible.  I accepted that at face value at the time and indicated to the father that I would be adjourning the case to the next week, but I required him to obtain a medical report as to his alleged injuries and the reasons why he was unable to attend court that day.

8. The matter was adjourned to 9 September 2008 when the father attended by way of telephone.  On that day his partner provided some further documents, which was a photograph which has been marked part of Exhibit H2 of the father lying on his back with his right hand in front of his face showing some redness on his fingers, together with a medical report, so called, or clinical notes from the emergency department of the Royal Darwin Hospital dated 5 September 2008.  These notes told me that the father attended the hospital after collapsing at his home, hitting his neck on a table as he fell.  He attended hospital on 3 September at 9:00am.  The notes continued in summary – the father had been bitten on his right hand two days before, hand was swollen – the father had nausea - He had a cervical spine x-ray, no abnormality was detected – Blood tests were unremarkable – the father was thought to have been bitten by a non-venomous insect or spider - The neck pain was as a result of a musculoskeletal injury, contusions suffered during his collapse – the father was observed for six hours - He was discharged to home with advice to use medication on 3 September 2008. 

9. The problem for the father is that nowhere in those notes or in any other report provided on that day was there any basis for suggesting that he was unable to attend court on 4 September.  He attended the hospital at 9:00am on 3 September 2008, he was kept under observation and discharged.  It seems to me that he would not have been discharged if he was not in a fit state to travel.  He was discharged home with medication.  As I say, no indication there as to any reason why he could not attend the court on 4 September 2008.  I note that Ms Holtham has alleged, and there has been no challenge to that by the father, that at no stage prior to 10:00am on 4 September 2008 was anybody advised of the father’s alleged indisposition, such that he was unable to attend court that day.

10. I was unable to proceed with the trial on that day because my other matters in the Darwin list were continuing, thus the case needed to be further adjourned.  On the basis that the criminal proceedings still had not been dealt with it was conceded that the matter should be adjourned to await the completion of those proceedings.  However, I made a further order for the father to provide a medical report as to his current health because Ms Holtham indicated that the mother still pursued an application for costs.   

11. The father has filed now two affidavits since then, one on 19 September 2008 and now one on 6 November 2008 purportedly in compliance with my order for a medical report to be provided.  Those affidavits simply annex certificates and results of recent attendances by the father at the Royal Darwin Hospital and the like, but they do not address the issue, namely why he was not able to attend the court on 4 September 2008.  The medical reports that I do have tell me that he has a problem with his neck, shoulder and arm which is being addressed by the hospital.  To repeat, absolutely nothing in any report as to the reasons why the father was unable to attend the court on 4 September 2008.

12. The father has had ample opportunity to provide an appropriate report.  There is evidence as to what his current medical condition is, but that is not the point.

13. Ms Holtham says that they are the circumstances which justify an order for costs.  Her client has been put to the expense of meeting the costs of her solicitor in preparing the case and in attending on 4 September 2008 in those circumstances.  Those costs are costs that are thrown away as a result of the circumstances that I have just outlined.

14. The father opposes the application for costs.  He points to the medical evidence which he has now presented which indicates that he suffers from difficulties in relation to his neck, shoulder and arm, and that is still being investigated.  He tells me that he is still in severe pain, that he has not been able to work since the incident, and he is on Centrelink benefits.  He says that he made every effort to properly advise the court and the other parties of his difficulties on the day.  He sent his partner in, for example.  That is correct, but the problem for the father is that he could have advised the solicitors before 4 September 2008 that he was having difficulties.

15. As I have recorded, the notes from the hospital indicate that he was discharged and sent home on 3 September 2008, yet the father sent someone else along on the morning of the trial, and then later in the day was not able to continue a telephone conversation to enable the matter to proceed.  The father says there are no circumstances justifying an order for costs. 

16. In terms of the financial circumstances of the parties, I am told that the mother operates a personal services business.  Her solicitor is unable to tell me what her income from that business is.  She has a house with her partner which is subject to a mortgage.  There is a dispute as to whether she is actually on the title.  That does not concern me too greatly for this purpose.  She receives absolutely no child support from the father. She is not on legal aid and she has instructed a private solicitor as she is entitled to do. 

17. The father’s financial position is that he has not worked since this incident, he is receiving a Centrelink benefit, he has a house subject to a mortgage, he supports two children and a wife.  He tells me, importantly, that in relation to his criminal proceedings he has a solicitor.  The total costs of that solicitor are expected to be $20,000.  He has paid $5,000 by borrowing that sum from his parents, and thus he owes his parents that money.  He says in effect that he cannot afford to meet any order for costs, even if one was justified.

18. In my view there are circumstances that justify an order for costs, but certainly not to the extent that is sought.  I do not consider that there should be any costs allowed for preparation.  I do not accept that any preparation that was done prior to 4 September is in effect thrown away or wasted.  The costs that I am prepared to allow relate to 4 September 2008.  Equally, I am not prepared to allow the full day's costs of $1680 which is sought by Ms Holtham.  This was a matter which always had the prospect of being adjourned, even on that day, because of the criminal proceedings.  I had requested the parties to confer about this and provide some parameters on which the trial could proceed.

19. I do not need to go into whether that occurred or whether it did not occur, but the fact of the matter is, as became quite apparent, there was no basis that the parties could agree upon to allow the trial to proceed without referring to the incident which is the subject of the criminal proceedings.  That was always my concern.  Ultimately on 9 September 2008 Ms Holtham conceded that and the case was adjourned on that day.  Thus, the amount that I am prepared to allow is simply for attendances on the morning of 4 September and in the afternoon, a total of two hours. 

20. I am prepared to accept the rate that Mr Holtham has suggested of $280 per hour, and the order I propose to make is that costs of $560 be paid by the father to the wife by way of costs thrown away.  I have not overlooked the financial circumstances of the parties, but the most significant issue for me is that the father has chosen to instruct solicitors in his criminal proceedings.  He has been able to make arrangements to meet their costs by borrowing from his parents.  He is going to have to make arrangements to pay the balance of their costs.  Therefore I take that to mean that he can rearrange his finances such that he can meet an order for costs.

I certify that the preceding 20 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 7 November 2008.

Associate