Felton and Penman
[2017] FCCA 26
•7 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FELTON & PENMAN | [2017] FCCA 26 |
| Catchwords: FAMILY LAW – Costs following parenting proceedings. |
| Legislation: Family Law Act 1975, s.117 Federal Circuit Court Rules 2001, rr.21.02, 21.03 |
| Cases cited: Browne v Green [2002] FamCA 791; (2002) FLC 93-115 Hawkins & Roe [2012] FamCAFC 77 I and I (No.2) (1995) FLC 92-625 |
| Applicant: | MS FELTON |
| Respondent: | MR PENMAN |
| File Number: | WOC 525 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing date: | In Chambers |
| Date of Last Submission: | 7 December 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 7 February 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Helen Volk Lawyers |
| The Respondent is self-represented. |
ORDERS
Within 6 months of the date of these Orders, the Respondent Father pay the Applicant Mother’s costs in the amount of $50,000.00.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Felton & Penman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 525 of 2014
| MS FELTON |
Applicant
And
| MR PENMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the Orders made by the Court in the costs application which followed the reasons for judgment delivered on 14 September 2016 in this matter reported as 2016 [FCCA] 1816.
Background
On 14 September 2016, I delivered reasons for judgment in the substantive dispute between the parents which related to their daughter, X, born (omitted) 2011. Final parenting Orders were made on that day. The Court also made two further Orders relating to costs, orders 10 and 11, in the following terms:
10.Any application for costs is to proceed by way of written submissions not exceeding 500 words, such application to be filed and served within 28 days, together with a Financial Statement, if appropriate.
11.Any response to such application for costs is to proceed by way of written submissions not exceeding 500 words, such application to be filed and served within a further 28 days, together with a Financial Statement.
On 12 October 2016, the Applicant Mother caused to be filed her submissions in relation to costs as well as a financial statement.
The Respondent Father not having filed any material within the timeframe provided, the Court listed the matter to deliver oral reasons for judgment on 16 November 2016. Surprisingly, the Father was in attendance and was given the opportunity to file evidence and make submissions as to costs. Indeed, the directions made on 16 November 2016 were as follows:-
The Respondent file and serve a financial statement, short affidavit limited to the issue of costs and written submissions within 14 days.
The Applicant file and serve her material in reply within 7 days thereafter.
The Independent Children’s Lawyer is excused from these proceedings.
On 30 November 2016, the Father caused to be filed his written submissions as to costs, his affidavit of 30 November 2016, and his financial statement sworn 22 November 2016.
On 7 December 2016, the Mother caused to be filed her submissions as to costs in reply, together with her affidavit of 7 December 2016.
Apart from the reasons for judgment delivered on 14 September 2016, the documents referred to above comprised the material before the Court, for the purposes of the costs application.
The Applicable Law
The Father, very helpfully, referred the Court to the Full Court’s decision in Hawkins & Roe [2012] FamCAFC 77 (8 June 2012). The Full Court’s decision at paragraphs 13-24 contains a very useful statement of the applicable law which the Court will adopt and reproduce below:
RELEVANT LAW
In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Family Law Act 1975 as expressed in
s 117(1), that each party to proceedings shall bear their own costs.In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.
Section 117(2A) of the Act sets out the matters which the Court is to have regard to when considering what order (if any), should be made as to costs under s 117(2).
The section is in the following terms:
Costs
...
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
With respect to the application of the section, in Penfold and Penfold [1980] HCA 4; (1980) 144 CLR 311, the High Court said at 315 and 316:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case".
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
(footnotes omitted)
The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another [2005] FamCA 158; (2005) 33 Fam LR 123 at paragraph 41:
... A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
With reference to the grounds of appeal propounded by the father, the
s 117(2A) matters relevant to these circumstances appear to be (a), (e) and (f). Although not directly referred to by his Honour, in his reasons the judge appears also to have considered (c).In respect of (a), the financial circumstances of the parties, it is as well to recall previous decisions of this Court that a disparity in financial resources between the parties may justify an order for costs in favour of the party with fewer financial resources (Marinko v Marinko (1983) FLC 91-307, Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605). Also relevantly, the apparent inability of a party to pay costs is not a bar to a costs order being made in circumstances where that party’s conduct is determined to warrant an order (Cross v Beaumont [2008] FamCAFC 68; (2008) 39 Fam LR 389).
In respect of (e), whether any party to the proceedings has been wholly unsuccessful in the proceedings is a well-established consideration. The general rule that costs do not follow the event can be displaced by the result of the litigation as well as its conduct by either party.
Although an appellate court should be very reluctant to interfere with the exercise of discretion in respect of costs (as observed by this Court in Browne v Green [2002] FamCA 791; (2002) FLC 93-115 and Harris and Harris (1991) FLC 92-254), it can and should interfere when the result is “plainly unjust or if the discretion was exercised on wrong principles” (see Robinson v Higginbotham [1991] FamCA 4; (1991) FLC 92-209). It is also accepted that an appellate court will uphold an exercise of discretion to order costs if it is apparent that there are appropriate reasons on which the judge could rely (see In the marriage of Greedy (1982) FLC 91-250).
It was held by Evatt CJ and Gibson J In the marriage of Greedy that “[a]n award of costs ought to bear some relation to the conduct of the proceedings by the parties or to their relative circumstances at the time of the application and hearing of the matter” (at 77,381). It was further said at 77,382:
...There may be situations where refusal to negotiate, to make an offer or to put forward an alternative order may be a factor justifying an order for costs. The failure of a party to take part in negotiations in a genuine manner may contribute to delay and cost and obstruct the proper resolution of a matter.
In the context of offers we would refer to Pennisi v Pennisi (1997) FLC 92-774 where the Full Court said at 84,547:
The husband’s submissions refer to Robinson and Higginbotham [1991] FamCA 4; (1991) FLC 92-209 as authority for the proposition that the fact that an offer just exceeds the award is no bar to an order for costs. Equally, however, it is only one of the factors to be considered under s 117(2A) and it is not the law that an offer of greater or equivalent value to that which results from the Court will lead to an order for costs in favour of the offeror – Harris and Harris (1991) FLC 92-254.
We would also add that just because an offer is marginally less than the amount ordered by a Court does not mean that it is not a factor to be taken into account in determining whether costs should be awarded.
...
We do, however, consider that the closer the offer is to the award when the offer is under the amount awarded by the Court, the more weight that should be given to this factor in considering the question of costs. This principle must not, however, be rigidly applied. Offers must be seen in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances while the offer is live. In the family law jurisdiction, it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer. There are also cases where the contents of the offer are in themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account when considering whether it was reasonable or not to accept an offer, no matter how close to the ultimate result the offer may be.
There are, however, a number of other very useful paragraphs from the Full Court’s decision. At paragraphs 71-72, for example, the Full Court discussed issues about capacity to pay a costs order:
71.We consider the father has established this ground of appeal. It is apparent that his Honour failed to have sufficient regard to the evidence about the father’s financial circumstances. In placing considerable weight on the finding that the father was in a better financial position than the mother and had the capacity to pay a costs order, his Honour fell into error.
72.In coming to this conclusion we would wish to emphasise that it is not necessary to conclude that a party has the capacity to pay a costs order before making any such order. In many cases there may be little evidence about the parties’ financial circumstances or it may be controversial. However if, as it seems here from the reasons of the judge, the father’s financial circumstances were a reason justifying the order, then to conclude that the father could meet this order was an error.
At paragraph 134 the Court makes an important observation about expert evidence:
134.It is pertinent to recall at this junction that the views of report writers are but one piece of evidence in parenting proceedings and the highly discretionary nature of these decisions. Accordingly, it would be unreasonable to expect litigants to “bow out” of proceedings based on the recommendations of family report writers. It is understandable in circumstances such as these that a parent would persist with litigation, armed with some positive recommendations in their favour, notwithstanding later recommendations to a different effect.
Paragraphs 144-147 contain some important observations about costs orders in parenting proceedings:
Costs orders have been made where the Court is satisfied that a party has knowingly made a false allegation or statement in children’s proceedings. It is this kind of serious conduct which more predictably attracts the making of a costs order (Edgar v Halle (No.2) [2010] FamCA 260).
As was said by the Full Court of this Court in Cross & Beaumont, the financial incapacity to pay a costs order is not a barrier, where the conduct of a party may warrant the making of such an order. In that case, the judge had made findings that the father’s approach to the outcome of the proceedings had been unreasonable, and relied on these findings to make a costs order despite the inability of the father to pay. On appeal however, the Full Court held that:
60.... Although his Honour was critical of the way in which the husband presented part of his case, his conduct was not such as to make it immediately obvious why he should be required to pay costs he clearly could not afford. We are of this view notwithstanding the wife also has virtually no assets [...] and a significant liability relating to legal costs.
While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father’s conduct of his case at the trial. Counsel for the mother conceded in oral submissions before us that at no point during the trial did his Honour direct the father to cease repetitive questioning, or to move his questioning more quickly, for example.
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.
All of the extracts above come from the majority judgments of Their Honours, May and Ainslie-Wallace JJ. Thackray J was in dissent but, importantly, agreed with one aspect of the majority judgment. At paragraph 162 his Honour states:
162. I also respectfully agree with May and Ainslie-Wallace JJ that the “general rule” that each party will pay their own costs is not often displaced in parenting cases, and that the nature of such litigation is quite different to a commercial dispute in other courts. However, the statute itself does not differentiate between parenting and financial cases. The discretion given to a trial Judge to determine a costs dispute, even in a parenting case, is a very wide one, and I am not persuaded there is an adequate basis for overturning the order.
The Mother’s application for costs was, indeed, for indemnity costs. In Medlon & Medlon (No.6) (Indemnity Costs) [2015] FamCAFC 157 (13 August 2015), the Full Court observed in relation to indemnity costs at paragraphs 27-28:
27.The Court in Limousin (supra) also referred to the judgment of Shephard J in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 upon which learned Counsel for the Wife relies in support of the present application. Shephard J said in Colgate-Palmolive(supra) (at 256):
“2. The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis ...
This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate Court of Appeal or of the High Court would be required to alter it ...
In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course ...”
28.Reference was made to the later decision of the Full Court of Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029 in which is [sic] was said (at 87,471, par 31):
“It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought.”
28.In Colgate-Palmolive Company v Cussons Pty Limited, Sheppard J provided some examples of circumstances that might warrant the exercise of discretion to award indemnity costs, and usefully, Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84,660, drew from his Honour’s decision the following:
(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 202; [1988] 81 ALR 397.
(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra).
(c) Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)).
(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)).
(e) An imprudent refusal of an offer to compromise.
The claim for indemnity costs can be dealt with briefly. It is this Court’s view that there is nothing about this matter that would warrant the imposition of an indemnity costs order, having regard to the authorities about indemnity costs.
Finally, the Court notes the powers given to it under rules 21.02, and 21.03 of the Federal Circuit Court Rules when making an order for costs:
FEDERAL CIRCUIT COURT RULES 2001 - RULE 21.02
Order for costs
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
FEDERAL CIRCUIT COURT RULES 2001 - RULE 21.03
Determination of maximum costs
(1) The Court may specify the maximum costs that may be recovered on a party and party basis:
(a) by order at the first court date; and
(b) of its own motion or on the application of a party.
(2) However, an amount specified must not include an amount that a party is ordered to pay because the party:
(a) has failed to comply with, or has sought an extension of time for complying with, an order or with any of these Rules; or
(b) has sought leave to amend a document; or
(c) has otherwise caused another party to incur costs that were not necessary for the economic and efficient progress of the proceeding or hearing of the proceeding.
(3) The Court may vary the maximum costs specified if, in the Court's opinion, there are special reasons and it is in the interests of justice to do so.
Observations about the final reasons for judgment
Having regard to the applicable law, there are a number of findings that were made in the reasons for judgment delivered on 14 September 2016 that particularly inform the Court’s decision about costs. Whilst the reasons about judgment speak quite clearly, the following paragraphs are particularly relevant:
·Paragraph 33, where the Court makes a credit finding in favour of the Mother, and against the Father.
·Paragraph 34, where the Court finds:
“The Father’s evidence in cross-examination was thoroughly unconvincing. He was pervasively unresponsive.”
·Paragraph 36, in relation to the Father’s unresponsiveness, and the propensity of his evidence to mislead the Court, in trying to evade an honest answer.
·Paragraph 83, relating to the Father’s actions about the family dog, (omitted). The Court found:
“The Court believes that it is more likely than not that the Father’s denials are disingenuous and that his actions in relation to (omitted) were yet another form of intimidation and harassment of the Mother with total disregard to the impact of this on X.”
·Paragraph 92, in relation to the Father’s evidence about manufacturing and then distributing the posters about X.
·Paragraph 97, relating to the Father’s reasons for distributing the posters, and where the Court states:
“The Father’s assertion that at least part of his motivation for placing the posters was that he had not seen X for at least eight months was a blatant lie.”
·Paragraphs 108 and 109, dealing with the Father’s expressions of remorse and contrition in relation to the family violence that he perpetrated. These were found to be disingenuous.
·Paragraph 112, where the Court did not accept the Father’s evidence that he did not know that the Mother was working at the (employer omitted) in question.
·Paragraph 153, relating to the Father’s attendance at (employer omitted) where the Court found that his evidence:
“…was unresponsive, elusive and evasive, almost to a pathological degree. “
The Mother’s submissions and evidence
The Mother’s case in support of costs, as may be perceived from her submission filed 12 October 2016 and 7 December 2016, is that the Father should pay costs because of:
a)Her financial circumstances.
b)The Father’s conduct throughout the proceedings.
c)The Father being wholly unsuccessful.
These are, of course, paragraphs (a), (c) and (e) of s. 117(2A). Implicit in the Mother’s submissions, is that the considerations referred to in subsection (2A), if accepted by the Court, justify the Court in departing from the general rule that each party should pay, and bear their own costs. Indeed, if the Court does accept that there are grounds under subsection (2A) to order costs, it must follow (as it does) that the Court finds that the general principle should not apply.
In summary, the Mother’s case is that she has been put to very significant costs in proceedings in which she was wholly successful as to her alternate proposal. The Father was wholly unsuccessful in his proposal in circumstances where the Mother is in a financially strained position, particularly as a result of the proceedings; and, finally, where the Father’s conduct resulted in the proceedings being much longer than they needed to be.
The Father’s case opposing costs
The Father argued that s.117(1) should apply, and each party bear their own costs. He strongly contended, and indeed the Court agrees, there was no basis for indemnity costs.
He says that his financial circumstances are not that disparate to the Mother’s and that, indeed, based on his evidence about his assets and income, he would not be in a position to meet a costs order.
The Father argues that as a self-represented litigant, any aspects of his conduct in the proceeding merely reflected the problem that the Court itself identified in the final reasons for judgment - a subjectivity which affects most self-represented litigants. Moreover, he pointed to his own admissions, as well as the evidence about his mental health issues. He thus submits that he conducted himself during the proceedings as best he could and that, indeed, any adverse findings about his evidence are explained by the inherent features of his mental health issues, and consistent with a personality disorder.
Finally, the Father contends that he was not wholly unsuccessful in circumstances where the Mother’s main proposal was for there to be no time, and in circumstances where the expert’s evidence as contained in the report was ample justification for him bringing the application, and pursuing it.
Moreover, the Father argued that as a matter of discretion, no order for costs should be made given the complexity of the matter and the need to make a finding, particularly about the allegations of family violence, and other conduct made by the Mother.
Discussion
This is a case where the evidence about the Mother and Father’s financial circumstances remains controversial. It is not in the public interest to permit the testing of the evidence that each adduces about their financial circumstances. This litigation must be brought to an end. Whilst the Court is sceptical about the evidence that the Father gives about his financial circumstances (understandably, given its previous findings in relation to him), it is not in a position to either accept or reject his evidence. What is abundantly clear from all the authorities, however, is that lack of financial capacity to meet a costs order is not a reason for not making an order in circumstances where one should otherwise be made.
In terms of whether the Father was wholly unsuccessful in these proceedings, on 7 December 2015, the minute of order sought by the Father provided for equal shared parental responsibility, and that X “live with the Mother until the child reaches an appropriate age, level of maturity and/or independent expression of will that should the child express a want to live with the Respondent Father that the Mother will encourage, support and facilitate the child living with the Father.” (Order 7). In relation to the spends time with proposal, in order 9, the Father proposed that until X turned 7 time be each alternate weekend from 9 am Saturday overnight to 10 am Sunday, and thereafter “each weekend from 10 am Saturday, to 6 pm Saturday” (the Court assumes he meant Sunday).
In his final written submissions received 17 June 2016, and not withstanding six days of evidence, the Father submitted: “I am seeking the orders as submitted in my minutes of order.”
The Order that was made, of course, provides for recognition contact, ie, that he spend time with X for two hours, four times each year, supervised by CatholicCare or any other agreed professional supervised contact centre.
The Court finds that the Father was wholly unsuccessful in the proceedings.
The Court’s conclusion in this regard is not changed by virtue of the Father’s submissions that his claim was not without merit, particularly in circumstances where the expert, Dr R, originally even postulated an option in which X would live with her father, and was initially of the view that there was no unacceptable risk of abuse to her. At the very highest, this argument might explain why the Father persisted in the proceedings up until the time that Dr R gave evidence on day 4 of the hearing being 15 December 2015. What happened in Dr R’s cross-examination is that when the facts (as compared to the history given by the Father) were presented, Dr R rapidly retracted his initial recommendations. With great respect to the Father, he cannot rely on the existence of an expert report that supported the merits of his case when the report was based, wholly or in part, on a fundamentally erroneous history presented by the Father.
It was abundantly clear to the Court during Dr R’s cross-examination that he had not fully appreciated the nature and extent of the family violence perpetrated by the Father, the enormous deficits in his insight and attitude as a parent and the falsity of his contrition. Let it be clearly stated: the Father at all times knew the truth. He did not present the truth to Dr R. He cannot now rely on Dr R’s report in defence of an application for costs by asserting that it gave him hope as to the merits of his claim.
The Mother’s claim that an order for costs should also be made on the basis of the Father’s conduct is also made out. The extracts from the reasons for judgment set out above amply demonstrate the Court’s finding about the false statements he gave in evidence. His pervasively unresponsive manner in cross-examination caused the proceedings to be extended unnecessarily. The conduct complained of by the Mother is not necessarily, or exclusively, attributable to the fact that the Father represented himself. In many ways, that is an irrelevant or barely relevant consideration in this regard. The Court’s experience is that many a represented litigant is found to be wanting in terms of their conduct of the litigation, so self-represented litigants do not enjoy an exclusive franchise in this regard.
It is not just that the Father’s misleading and evasive evidence caused the proceedings to take far longer than it should have. He rarely attended Court on time. Yes, as he points out, there was one occasion in which Counsel for the Mother attended late, but that does not detract from the Court’s previous finding. His cross-examination of the Mother, and then of Dr R, was prolix and mostly unnecessarily. Precious Court time, an increasingly limited public resource, as well as significant legal costs of the Mother and, indeed, the public purse in the form of the Independent Children’s Lawyer, was expended in entertaining the Father’s case which, as it turns out, was all but meritless.
There are other aspects of the Father’s conduct that have not been specifically alluded to by the Mother, but which are apparent from the Court’s reasons for judgment. For example, his highly selective interpretation of Court orders, especially injunctions for personal protection made against him. Moreover, the reasons for judgment also point to “such other matters as the Court considers relevant” in relation to costs. The Father’s family violence perpetrated in this matter was reprehensible. The production and distribution of the posters relating to X throughout his local area was an abominable thing to do. The Father’s continued harassment of the Mother at her place of work during the course of this proceeding was very significant. These matters, and many others referred to in the reasons for judgment, provide some further context as to the need to make an order for costs, having regard to the Father’s conduct.
Conclusion as to Costs
It follows from the Court’s reasoning above, that an order for costs, though not on an indemnity basis is plainly warranted.
How to Assess Costs?
Rule 21.02(2) gives the Court considerable leeway in terms of making an order for costs. One common method is to refer the matter for taxation, or assessment, but the difficulty in adopting that method in this case is that it almost certainly condemns the Mother to further litigation with the Father as part of the costs process. Another alternative would be for the Court itself to undertake a costs assessment applying the relevant schedule, to the Federal Circuit Court Rules 2001 (‘the Rules’) which assesses costs partly on an event basis, and partly on a time basis. This was a six-day hearing in proceedings that commenced in 2014 and thus, an assessment of costs conducted by the Court would take a disproportionate amount of time, and take the Court’s attention away from many other equally deserving cases.
The option that the Court proposes is that set out in paragraph (a) of r. 21.02(2), ie, setting the amount of the costs. By doing so, the Court makes an order which amounts, in effect, to a judgment that the Mother can then seek to enforce.
This was a six-day hearing which most certainly required Counsel. The Mother’s financial statement indicates that her total legal fees incurred, whether paid or payable, amounts to about $95,000. Indemnity costs have been ruled out, for reasons set out above. A rule of thumb application of schedule 1 to the Rules gives the impression that an assessment conducted strictly in accordance with that schedule would probably yield a result of about $50,000, including Counsel’s fees which would be quite properly treated as a disbursement. Indeed, this is probably a very conservative rule of thumb assessment. In the circumstances, the Court believes that pursuant to r.21.02(2), it will set the amount of costs at $50,000, and pursuant to r.21.02(d) allow six months to pay.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 7 February 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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