Fierro & Fierro (No 6)
[2022] FedCFamC1F 1006
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fierro & Fierro (No 6) [2022] FedCFamC1F 1006
File number(s): SYC 7639 of 2021 Judgment of: BERMAN J Date of judgment: 16 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Where the second respondent and the ICL seek costs in relation to the applicant’s dismissed Initiating Application – Where the Initiating Application was forlorn of hope, likely to represent an abuse of process and was wholly unsuccessful – Consideration of whether the costs should be payable on a party/party basis or on an indemnity basis – Consideration of Prantage & Prantage (2013) FLC 93-544 – Orders. Legislation: Family Law Act 1975 (Cth) ss s 117(2A), 117(2A)(g) Cases cited: Fierro & Fierro(No 4) [2022] FedCFamC1F 687
Fierro & Fierro (No 5) [2002] FedCFamC1F 948
Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage (2013) FLC 93-544
Division: Division 1 First Instance Number of paragraphs: 39 Date of hearing: 13 December 2022 Place: Adelaide via MS Teams Counsel for the Applicant: No appearance by or on behalf of the Applicant Counsel for the First Respondent: Litigant in person Counsel for the Second Respondent: Mr Trezise Solicitor for the Second Respondent: Dobson Mitchell Allport Counsel for the Independent Children's Lawyer: Ms Watson Solicitor for the Independent Children’s Lawyer: Tasmania Legal Aid ORDERS
SYC 7639 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIERRO
Applicant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
16 December 2022
THE COURT ORDERS THAT:
1.Within twenty eight (28) days, Mr Fierro pay the costs of Ms Bien in the sum of THIRTY SIX THOUSAND THREE HUNDRED AND TWENTY FOUR DOLLARS ($36,324) and the costs of the Independent Children’s Lawyer in the sum of FIVE THOUSAND AND EIGHTY ONE DOLLARS ($5,081).
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
Introduction
By Application in a Proceeding sealed 20 October 2022, Ms Bien (“the second respondent”) seeks an order that Mr Fierro (“the applicant”) pay her costs, calculated on an indemnity basis, in the sum of $36,324.
By Application in a Proceeding sealed 24 October 2022, Simone Watson (the Independent Children’s Lawyer) (“ICL”) seeks an order that the applicant pay her costs fixed in the sum of $5,081.
Mr A Fierro (“the first respondent”) is a self-represented litigant and as such, does not seek an order for costs as against the applicant.
Background
The applicant commenced these proceedings on by Initiating Application on 20 October 2021, seeking orders in respect of X born 2008 (“the child”).
The applicant’s Initiating Application was the subject of amendment on 6 February 2022 (the Amended Initiating Application”) which expanded the orders that he sought in respect of the child.
Following a hearing on 19 August 2022, Orders were made on 13 September 2022 which dismissed the applicant’s Initiating Application sealed on 20 October 2021.
The applicant appealed the Order dismissing his Initiating Application. The appeal was unsuccessful and the matter comes back before me for a determination of the Applications for costs of the second respondent and the ICL.
The first and second respondents are the parents of the child. The applicant is the child’s half sibling. He is also the son of the first respondent from a previous marriage.
Final Consent Orders were made on 21 May 2021 (in file number PAC2535 of 2020) that provided for the applicant to be restrained from communicating with the child, otherwise than as agreed in writing or if communication was initiated by the child.
It is not controversial that the child has not sought to communicate and/or spend time with the applicant. It is a reasonable finding that the child has no interest in having any relationship with the applicant.
For reasons that are not easily understood, the applicant has persisted with ongoing litigation in respect of attempting to re-enliven the parenting proceedings. The applicant has been unsuccessful in respect of his endeavours.
I rely upon paragraphs 25 to 45 of my judgment being Fierro & Fierro (No 4) [2022] FedCFamC1F 687 outlining the history of the proceedings.
I am also aware of the judgment of Smith J in Fierro & Fierro(No 5) [2002] FedCFamC1F 948 wherein his Honour dismissed the Contempt Applications of 17 and 15 February 2022 and the Contravention Application of 16 March 2022.
Consequent upon the disposal of the applicant’s appeal, the Applications for Costs were listed before me on 13 December 2022. The applicant did not appear. I am satisfied that he has had proper notice of the Applications for Costs and the date and time of the remote hearing upon which those Applications were to be heard and determined.
The first respondent appeared as a self-represented litigant, the second respondent was represented by counsel and the ICL appeared on her own account.
The second respondent relied upon her Affidavits sealed 10 October 2022 and 8 December 2022.
The second respondent details the applicant’s conduct in the proceedings at paragraphs 12 to 21 of her affidavit of 10 October 2022.
The conduct of the applicant, as evidenced by large volumes of documents and affidavit material that does not contain any probative evidence but is redolent with scandalous allegations, raised a consideration as to whether his intent is vexatious rather than holding a genuine interest in the child.
I accept the evidence of the second respondent as set out in paragraph 15 of her affidavit of 10 October 2022. This would provide a foundation for a finding that the applicant has engaged in threatening and abuse behaviour.
I am satisfied that the applicant’s proceedings are motivated by an internecine conflict with the first and second respondents. The applicant appears motivated to use the proceedings to cause financial hardship to the respondents and, by way of collateral damage, the ICL. To the extent that the child is aware of the ongoing conduct of the applicant in pursuing relentless litigation, it is likely that the concerns raised by the ICL of an adverse outcome for the child, are well founded.
Whilst it may have been open to categorise the proceedings promoted by the applicant as an abuse of process, consequent upon a finding that without there being a proper focus to the proceedings, the emotional harm likely to be experienced by the child was not in her best interests and as such, the Amended Initiating Application was dismissed.
Costs of the second respondent and the ICL
The second respondent seeks costs calculated on an indemnity basis in the sum of $36,324. The ICL seeks costs in the sum of $5,081.
I have indicated that I consider the manner in which the applicant has conducted the litigation to amount to an abuse of process but in any event, to have been motivated by an intention to create financial and emotional hardship for the respondents.
In considering what orders should be made, if any, in respect of the second respondent and the ICL’s costs, s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) sets out that the Court shall have regard to the following:-
(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.
Accordingly, I have a wide discretion in favour of matters relating to a potential costs order.
Should an order be made in favour of the second respondent and the ICL?
The ICL relies upon her affidavit sealed 24 October 2022. The affidavit annexes correspondence forwarded to the applicant dated 16 June 2022 emphasising the child’s instructions to the ICL that she is aware she is able to contact the applicant if she chooses to do so but that at this stage, she has no reason to speak with the applicant and would prefer not to engage with him.
I accept the observations of the ICL that the child impresses as mature and that considerable weight should be given to the views expressed by her.
The applicant chose to ignore the correspondence forwarded by the ICL.
For her part, the ICL submits that the applicant has been wholly unsuccessful in the proceedings, that her letter of 16 June 2022 should be considered as an offer in writing to the applicant and finally that the applicant’s conduct, in terms of his threatening behaviour and the unrelenting pursuit of applications without merit, should invite an order for costs. I find there is merit in the submissions of the ICL and those of the second respondent.
I am satisfied that the costs of the ICL have been calculated on a party/party basis and are reasonable in all the circumstances.
The second respondent relies upon a similar submission that the applicant has been wholly unsuccessful and the proceedings should never have been commenced.
Moreover, the abusive and threatening conduct of the applicant is a matter that the Court can bring to account under s 117(2A)(g) being a relevant consideration.
Accordingly, I propose to order that the applicant pay the costs of the second respondent and the ICL.
Consideration of party/party costs or indemnity costs
The question that remains is whether the costs of the ICL and the second respondent should be payable on a party/party basis or on an indemnity basis.
The discussion of the Full Court in Prantage & Prantage (2013) FLC 93-544 (“Prantage”), is of assistance in determining whether and in what circumstances, an order for indemnity costs should be made.
In Prantage (supra), the Full Court referred extensively to the decision of Kohan & Kohan (1993) FLC 92-340 (“Kohan”). At [77] of Prantage (supra), it was noted that, whilst there was nothing in the Act which in any way “inhibits” a consideration of indemnity costs, the following is said in Kohan (supra) at 79,605:-
…it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale, and what its likely impact will be on the financial position of each of the parties.
This impact was a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under sec 117(2A)(a), or perhaps even more as a relevant matter under (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.
Whilst I do not consider that the matters before the Court were of significant complexity, the applicant’s Amended Initiating Application was forlorn of hope and likely to represent an abuse of process given that its intention was to cause financial harm to the second respondent and, by way of collateral damage, the ICL.
That consideration is sufficient to impose an order for indemnity costs. I am satisfied that the quantum of costs as has been properly calculated.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 16 December 2022