Fawcett & Mahajan

[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 submissions and affidavit evidence (which also revealed that the father seeks costs on an indemnity basis), judgment was reserved in September 2020.

5. 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

6. The parties have been involved in highly acrimonious parenting proceedings involving their 15 year old daughter ("the child") since September 2017.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. In around August 2017 the child's enrolment in the school chosen by the mother was suspended.

13. 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".

14. 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.

15. On the first return date, 18 October 2017, orders were made with the consent of the parties providing that the child be enrolled in the nominated high school and that the father be restrained from frustrating or preventing the child's enrolment or attendance at that school.

16. In April 2018 the parties agreed to engage in family therapy with the child with a view to repairing the child's relationship with her father, but in the ensuing 12 months family therapy did not proceed as intended.

17. For the balance of the proceedings, the father continued to seek time with the child which the mother opposed on the basis that the child was adamantly opposed to this occurring. Although interim orders were made with the parties’ consent providing that the child have limited contact with the father as had been recommended by the single expert appointed in the proceedings, there was no occasion on which the child spent time with the father.

18. An order was later made in late 2019 that the child spend time with the father in accordance with her wishes for a short defined period, but this did not bring about any change.

19. The parties further attempted mediation facilitated by the Independent Children's Lawyer ("ICL") appointed to the proceedings in March 2020 which also did not prove fruitful.

20. The dispute was listed for final hearing in June 2020 and on the first day most matters were resolved by agreement between the parties. Final orders were made with their consent providing, in summary, that they equally share parental responsibility for the child, except in relation to education, and that the child live with the mother and spend time and communicate with the father in accordance with her wishes.

21. The outstanding matter, being the exercise of parental responsibility in respect to education, became the subject of the final hearing that resumed on 11 August 2020. At the conclusion of the hearing on that date the parties agreed on final orders that they hold equal shared parental responsibility for the child and that they ensure her continued enrolment at the nominated private school until she completes Year 12. The father then sought costs against the mother which the mother opposed, and both agreed that the application be determined in chambers following receipt of written submissions.

22. In this application, the father seeks that his costs of and incidental to the mother’s application for interim and final orders be paid by the mother on an indemnity basis. Although in his written submissions he enumerates various expenses and outgoings such as legal fees, court hearing costs, costs relating to family dispute resolution and costs for the preparation of the single expert reports to be paid by the mother, no individual or total sum is specified.

23. The mother seeks that the father’s costs application be dismissed. Although throughout the proceedings she sought an order that the father pay her costs of and incidental to her application, it is apparent from her written submissions that she no longer seeks such an order.

24. Both parties also make submissions in relation to the ICL’s costs, but as there is no such application made by the ICL under consideration in these proceedings this issue is not considered.

    THE LAW

25. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to proceedings under the Act shall bear his or her own costs, but that section is subject to subsection (2) which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make an order for costs as it considers just.

26. The High Court in Penfold v Penfold[1] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify making the order. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

    [1] (1980) 144 CLR 311.

27. Section 117(2A) sets out matters to which the Court is to have regard in considering what order, if any, should be made under subsection (2). The matters relevant in this case are considered below.

    The financial position of each of the parties to the proceedings

28. The father contends by reference to a Child Support Agency assessment dated 16 September 2020 that the mother earns $317,960 per annum while he earns an income of $74,055. He asserts that there is therefore a “joint-income differential of 88:12 in favour of the mother” and on this basis “there is no question of comparative impecuniosity on the part of the mother”. He also claims that there is nothing to suggest that the mother is other than competent in continuing to earn a salary at the present or higher level.

29. While the mother concedes that there is a “discrepancy” in income between she and the father, she insists that the amount she earns is significantly less than that claimed by the father, stating that as a result of the “consuming and stressful nature” of proceedings she has reduced her working hours. She also asserts that she has solely met over $100,000 in costs associated with the child’s high school education, being monies spent on tuition fees, books, uniforms, extracurricular activities and other daily expenses relating to the maintenance of the child.

30. Otherwise, neither party has filed a Financial Statement or evidence as to their current assets and financial resources.

31. In the absence of further evidence relating to each of the party’s financial circumstances, I accept (placing weight in particular on the mother’s deemed income and earning capacity and the fact that she was legally represented for most of the proceedings) that she is in a superior financial position to that of the father. Should she be ordered to pay the father’s costs as sought by him, I am satisfied that she is in a financial position to bear those costs.

    The conduct of the parties to the proceedings in relation to the proceedings

    Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court

    Whether any party to the proceedings has been wholly unsuccessful in the proceedings

32. Each parent maintains allegations against the other about obstructive conduct during the proceedings that has caused both delay and unnecessary financial expense to be incurred. Each also alleges that the proceedings were necessitated by the failure of the other to comply with the 2012 orders.

33. While the father acknowledges in his affidavit that the proceedings came about following two failed attempts at family dispute resolution, he maintains that the mother was generally obstructive to resolving any dispute between them (including in relation to resuming the child’s contact with him pursuant to court orders) and pursued litigation to “inflate [their] disagreement”. He adds in written submissions that the mother’s proposed orders “presented the greatest threat to the child’s school enrolment and the most apparent generator of ongoing conflict between the parties”.

34. In addition to complaints about abuses of court process (including that the mother failed to lodge a Notice of Address for Service with the Court and failed to comply with filing dates), the father contends that the mother continually agitated for sole parental responsibility for the child on “spurious grounds”. He argues that the allegations of family violence made against him so that the presumption of shared parental responsibility would not apply were unfounded, and that the mother otherwise ignored both expert evidence to the contrary and various court orders supporting reconciliation between he and the child. To this end, he asserts, the mother continued to prosecute a case with “no chance of success” and the additional orders she sought including that he be restrained from engaging with the child’s school in any way, unnecessarily prolonged the proceedings.

35. The mother denies the father’s contentions and insists that the proceedings were necessitated by the father’s failure to consent to the child’s attendance at the relevant school and his “intentional blocking” of the child’s enrolment there. She also submits that the proceedings continued to be necessitated as the 2012 orders were no longer workable despite her “ongoing concerted efforts”.

36. In her affidavit evidence, the mother also deposes to a history of hostile attitudes displayed by the father towards her, and other occasions she says he was both neglectful of, and inflexible towards, the child’s needs. She claims that these attitudes continued throughout the proceedings, including that he pressed orders that she be subject to bonds amounting to $100,000 for any failure to comply with orders, and also attempted to destabilise her relationship with the child by asserting in his Notice of Risk filed in support of his Response that she had several mental difficulties. She further argues that the father’s current costs application appears to be “nothing more than an ongoing attempt to cause [her] emotional and financial stress”.

37. While the general tenor of each of the parents’ evidence is that the other alone has engaged in a campaign of counterproductive attitudes and spurious allegations that has hindered the swift resolution of the proceedings, I attach weight to the expert’s evidence in his additional report dated 12 December 2019 that each of the parents have both engaged in “lamentable conduct”. The expert summarised his concerns in this regard, with which I agree and to which I attach significant weight, as follows:

    5. Regrettably it appears [the mother] remains intent on continuing to invest in considerable legal efforts to support her relatively passive efforts to comply with Court Orders, while ostensibly achieving little. It remains self-evident that her actions in putting forward such a spirited defence in the recent court hearing leaves an inescapable conclusion that she does not want [the child] to have contact with her father…

    6. …What is also apparent is [the mother]’s absence of engagement herself in facilitating any pathway to assist [the child] reconcile and subsequently reunite with her father. This includes her resistance, if not abject refusal to engage in mediation with [the father], despite the not insignificant steps that were achieved during the assessment on 30 May, 2019 at my rooms inclusive of both parents expressed apology to [the child] together with their commitment to her that they would do better.

    7. Conversely, I am not sure if [the father] has engaged in any further therapy and education for himself to address a number of the issues identified during the assessment regarding his behaviour and actions toward [the child] which significantly contributed to [the child]’s blatant refusal to have any further contact with him. Or to obtain tips and techniques as to how to communicate more sensitively to his daughter without resorting to continual pressure on her to resume staying at his residence…(sic)

    8. It is readily apparent that [the child]’s wishes have been influenced by both her parents…[the mother]’s refusal to interact with [the father] in any constructive manner meant that [the child] has been left to manage this situation herself, which she has done so for the last three years by avoidance. During that time however, [the father]’s seemingly desperate, but still ill-considered efforts to engage with [the child] via threats to jeopardise her school enrolment have only further damaged their already fractured relationship…

38. The expert went on to highlight that “the parental conflict persists and both parents continue in their respective adversarial stances”. He remarked that rather than take any positive steps in line with his suggestions, the father in particular “elects to be critical of the mother” and “continues to seek the Court’s authority to address [the child]’s defiance of his desired goals”, while the mother commits to her “permissive attitude” towards the child’s age-inappropriate behaviour including allowing the child to “ignore a Court’s direction with no consequence at all”.

39. In addition to these concerns, and as the procedural history of this matter indicates, there are certain other behaviours engaged in by both parties that appear to have been unproductive in resolving their dispute. 

40. For example, although the parties consented to orders that they engage in family therapy early in the proceedings, it appears only the father had proactively engaged with the therapist while the mother’s engagement was limited to only one attendance in 12 months and family therapy was thereafter discontinued.

41. The Court record also indicates that when parties were directed to provide copies of all applications and affidavits upon which they relied to the ICL, only the mother complied with such an order, and the father did not.

42. Further, when the parties engaged in mediation facilitated the by Legal Aid Commission in March 2020, although they reached some agreement which appeared to narrow the issues between them, no orders were formulated by them to be forwarded to chambers to be requested to be made with their consent. As a result, the matter ultimately proceeded to final hearing.

43. The Court record also indicates that on various occasions the mother in particular made incessant direct contact with chambers contrary to directions that this not occur. This resulted in orders being made that all communication occur strictly via the ICL and that the parties or their legal representatives not contact chambers directly by email except as may be specifically provided for in orders.

1. There is also at least one court event where the father insisted that he proposed to introduce information disputing expert evidence (relating to the parties’ reported incomes) and suggested that the mother be penalised for contravening orders in circumstances where it was agreed earlier that day that parties would attempt mediation as an alternate way of taking control of the dispute. Further, at that court event the father addressed the Court in relation to a Contravention Application that had recently been filed, despite the Court repeatedly explaining why it was not in a position to hear such an application.

2. In Hawkins & Roe[2] the majority of the Full Court said at [147]:

   Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

   [2] [2012] FamCAFC 77.

3. In my view, both parties acted inconsistently with the recommendations made by the expert and proceeded, it seems, with less regard to the best interests of the child than to their interest in advancing their case against the other parent. Accordingly, I am satisfied that each party made ill-considered efforts that have delayed the proceedings and brought about unnecessary financial expense, so this is a factor that is not particularly weighty in determining the application.

4. Similarly, neither party was wholly unsuccessful or successful in the proceedings, given that the final orders made by consent in June 2020 and later in August 2020 were not wholly in accordance with the orders that each sought.

   Other matters the Court considers relevant

5. 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

6. 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

7. 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]”.

8. 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.

9. 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.

10. 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.

11. Through his application the father seeks that the mother reimburse half of the costs of the expert’s additional report.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. It is not possible on the state of the evidence to make any finding other than that the father paid the sum in question in full at the outset. An order has now been made that the mother reimburse him for half that amount.  

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.

Associate: 

Dated:       16 February 2021