Fawcett & Mahajan

Case [2021] FamCA 53

FAMILY COURT OF AUSTRALIA

Fawcett & Mahajan [2021] FamCA 53

File number(s): SYC 3294 of 2012
Judgment of: HANNAM J
Date of judgment: 16 February 2021
Catchwords: FAMILY LAW – COSTS – Where the father seeks that mother pay his costs on an indemnity basis – Where consideration of applicable principles – Where circumstances do not justify a departure from the usual rule that each party bears their own costs – Where as part of his costs application father seeks reimbursement of funds paid for additional expert report – Where order made that father be reimbursed for half of the cost of the additional expert report – Where father’s costs application otherwise dismissed  
Legislation:

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 r 15.47

Cases cited:

Hawkins & Roe [2012] FamCAFC 77

Penfold v Penfold (1980) 144 CLR 311
Number of paragraphs: 60
Date of hearing: By way of written submissions
Place: Parramatta
Counsel for the Applicant The Applicant appeared in person
Counsel for the Respondent The Respondent appeared in person

ORDERS

SYC 3294 of 2012
BETWEEN:

MR FAWCETT
Applicant
AND: MS MAHAJAN
Respondent

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

THE COURT ORDERS THAT:

1.The mother reimburse the father for half of the funds paid for the preparation of the expert addendum report dated 12 December 2019.  

2.The father’s application for costs is otherwise dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fawcett & Mahajan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION

  1. These Reasons concern an application for costs made by a respondent father in proceedings initiated by the mother relating to the future parenting arrangement for their only child now aged 15 (“the child”).

  2. The proceedings which have been particularly protracted and acrimonious had involved many court events and attempts through interim orders to settle the dispute. This was substantially resolved on 30 June 2020 when the parties reached final agreement about the child’s time with the father and orders were made with the parties' consent.

  3. The issues of parental responsibility and the child's education, being the only remaining matters in dispute, were resolved by orders made with the parties’ consent on 11 August 2020. At that court event after the orders were made, the father made an oral application that the mother pay his costs of the proceedings which the mother opposed.

  4. The parties agreed that the father's application for costs could be dealt with in chambers after submissions had been filed. Following receipt of both party’s written…

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Fawcett & Mahajan [2021] FamCA 53
Case
[2021] FamCA 53
Decision Date

CaseChat Overview and Summary

In the matter of *Fawcett & Mahajan*, Mr Fawcett (the applicant father) sought an order that Ms Mahajan (the respondent mother) pay his costs on an indemnity basis, and also sought reimbursement for half the cost of an additional expert report. The proceedings concerned highly acrimonious parenting disputes regarding the parties' teenage daughter.

The primary legal issue before Hannam J was whether exceptional circumstances existed to justify a departure from the usual rule that each party bears their own costs, and specifically, whether the mother should be ordered to pay the father's costs on an indemnity basis. A secondary issue concerned the father's application for reimbursement of half the cost of an additional expert report.

Hannam J determined that the circumstances of the case did not justify a departure from the usual rule that each party bears their own costs, and therefore dismissed the father's application for indemnity costs. Regarding the expert report, the court applied Rule 15.47(1) of the Family Law Rules 2004, which establishes that parties are equally liable for the reasonable fees of a single expert witness unless otherwise ordered. As the addendum report was necessary for the proceedings and the mother offered no reason why the usual rule should not apply, the court ordered that the mother reimburse the father for half of the cost of the expert's additional report.

Orders

Orders of the court

SYC 3294 of 2012

BETWEEN:

MR FAWCETT

Applicant

AND:

MS MAHAJAN

Respondent

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

THE COURT ORDERS THAT:

1. The mother reimburse the father for half of the funds paid for the preparation of the expert addendum report dated 12 December 2019.

2. The father’s application for costs is otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party bear their own costs, and if so, whether these circumstances are exceptional to justify that a costs order be made against the mother on an indemnity basis. BACKGROUND The parties have been involved in highly acrimonious parenting proceedings involving their 15 year old daughter ("the child") since September 2017. In 2012, following the breakdown of their five year marriage, the parties had initially agreed upon final parenting orders ("the 2012 orders”) providing, in summary, that they hold equal shared parental responsibility for the child and that the child live with the mother and spend time with the father each alternate weekend and half of each school holiday. In the years that followed, it had been the mother's case that while the 2012 orders were generally followed, the father was increasingly hostile towards her, and at times the child, which resulted in the child becoming averse to spending time with him pursuant to court orders. It is common ground between the parties that by early 2017 when the child was aged about 11 the child's relationship with the father had deteriorated significantly, though it is the father’s case that this was due to the mother’s actions in seeking to prevent the child having a relationship with him, while the mother maintained that despite encouraging the child to spend time with the father the child remained emotionally distressed and was extremely reluctant about any contact with him. Notwithstanding several family counselling sessions and some attempts to engage in mediation, it also became apparent that by mid-2017 the parties had no capacity to engage in cooperative decision-making in relation to the child. One issue they could not agree upon related to the child's schooling. In circumstances which are in dispute, the mother enrolled the child in a private high school which she says was a school "preferred by the child". After receiving written confirmation from this school relating to the child’s enrolment, the father threatened legal action against the school and alleged that the mother had shown flagrant disregard of the 2012 orders that stipulated that the parties exercise equal shared parental responsibility in relation to such matters. In around August 2017 the child's enrolment in the school chosen by the mother was suspended. According to the mother, later that month some text messages were exchanged between the child and the father in which the child insisted that she remain in the nominated school and complained that the father's conduct in obstructing her from doing so was "blackmail". As the parties could not reach agreement, and as a result of the child's distress about the uncertainty of her school arrangements, the mother commenced proceedings in September 2017 seeking interim relief in relation to the child's enrolment and final orders that the child’s time with the father under the 2012 orders be varied. The father in response sought orders largely in the terms of the 2012 orders, and also sought orders that the mother be penalised for any contravention of court orders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In his application, the father seeks to be reimbursed for half of the expenses in obtaining a particular report for the purposes of resolving the dispute. This is a discrete issue to which I will return. CONCLUSION Having regard to the foregoing matters, I am of the view that there is insufficient justification to depart from the usual rule that each party bears their own costs. As I do not consider there are circumstances that justify a departure from this rule, I do not need to consider the father’s submissions with respect to indemnity costs. Accordingly, the father’s application that the mother pay his costs is dismissed, except so far as it relates to an application that the mother share the expenses of an expert report which was obtained in the proceedings. Reimbursement of funds paid for an additional expert report The father seeks as part of his application that the mother pay costs associated with “the commissioning and provision of an addendum report by [the expert]”. At the case management court event on 29 November 2019, the ICL sought an additional report by the expert in circumstances where the father sought enforcement of the order that the child spend time with him which was opposed by the mother. The father agreed to fund half the cost of the addendum report which was estimated to be about $600. At the time, the mother informed the Court that she did not have the funds to meet this further report. It was ordered on the basis that if the father agreed to fund the entirety of the report in advance, he was given leave to make an application at a later date to be reimbursed for half of the cost of the report. By the end of the court event that day, the father indicated that he was prepared to pay the expert’s additional report in full, and understood that he was to seek reimbursement at a later date. Through his application the father seeks that the mother reimburse half of the costs of the expert’s additional report. Rule 15.47(1) of the Family Law Rules 2004 provides that the parties are equally liable to pay a single expert witness's reasonable fees and expenses incurred in preparing a report, unless otherwise ordered by the Court. In written submissions made on her behalf, the mother puts forward no reason why the usual rule should not apply. The addendum report was required for the purposes of the proceedings and the father was prepared to pay for the report in full to ensure that it was prepared. There is no reason why the usual rule not apply and accordingly, I order that the mother reimburse the father for half of the cost of the expert’s additional report. The focus of the mother’s submissions as to this issue as I understand it, is that she has already paid the full fee for the expert’s report “by herself”, though in her affidavit she deposes to paying half these costs. The father’s case is that he has incurred the relevant costs which is supported by a letter from the ICL sent to the expert. The dispute between the parties as to this matter relates to compliance between them with what appears to have been an agreement at the time that the costs of the report be shared, which is now embodied in an order of the Court.

Ratio Decidendi

Legal Principle Established

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