GARFIELD & CASSANO (No.2)

[2019] FCCA 2089

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARFIELD & CASSANO (No.2) [2019] FCCA 2089

Catchwords:
FAMILY LAW – Costs – mother’s application for costs against father in substantive proceedings – father’s application for costs against mother in costs application – no costs awarded.

Legislation:

Family Law Act 1975 (Cth), s.117

Family Law Rules 2004 (Cth), Sch.3

Federal Circuit Court Rules 2001 (Cth), r.21.10

Cases cited:

Higginbotham & Robinson (1991) 14 FamLR 559; (1991) FLC 92-209

Loomis & ML Lawyer [2016] FamCAFC 168

Applicant: MR GARFIELD

Respondent: MS CASSANO

File Number: MLC 6876 of 2013

Judgment of: Judge Mercuri

Hearing date: 31 January 2019

Date of Last Submission: 14 March 2019

Delivered at: Melbourne

Delivered on: 2 August 2019

REPRESENTATION

Counsel for the applicant: None

Solicitors for the applicant: Hargreaves Family Lawyers

Counsel for the respondent: None

Solicitors for the respondent: Ann Wilkinson

ORDERS

1. The mother’s application in a case filed 12 December 2018 be dismissed.

2. There be no order as to costs.

AND THE COURT NOTES THAT:

(A)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Garfield & Cassano (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6876 of 2013

MR GARFIELD

Applicant

And

MS CASSANO

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs filed by the respondent mother in the principal proceedings, but the applicant in the application in a case filed on 12 December 2018.  To avoid confusion, in these reasons I will simply refer to the parties as the mother and the father rather than by reference to the applicant and the respondent.

2. By her application in a case filed on 12 December 2018, the mother seeks her costs of and incidental to the substantive proceedings for the period from 22 July 2018 to 14 November 2018. 

3. By way of background, the substantive proceedings related to an application permitting the mother to relocate with the child of the relationship to the United States of America.  Orders were made granting the mother’s relocation on 14 November 2018 and written reasons for judgment were handed down, also on 14 November 2018.

4. The mother seeks:

   a)orders as set out in her initial application in a case for costs of the substantive proceedings as agreed or, in default of agreement, as tasked in accordance with Schedule 3 of the Family Law Rules 2004; or alternatively

   b)costs pursuant to Rule 21.10 of the Federal Circuit Court Rules 2001 (Cth).

5. In his response to the application in a case filed 29 January 2019, the father sought interim orders that:

   a)the mother provide security for costs;

   b)the mother’s application for costs be dismissed; and

   c)the mother pay the father’s costs of $5,000.

6. The father also sought final orders that:

   a)the mother’s application for costs be dismissed;

   b)the mother pay the father’s costs of $5,000 if dismissed on 31 January 2019 or $7,500 if dismissed after additional submissions are prepared.

7. The mother’s application in a case was listed for directions on 31 January 2019.  At that time, orders were made by consent for, among other things:

   a)the mother’s application for costs to proceed by way of written submissions without any further appearance required; and

   b)the father to file written submissions in support of his ‘response’ within 14 days after receipt of the mother’s written submissions.

8. The father ultimately did not pursue an application for security of costs following the directions hearing.

Factual background

1. The factual background to the substantive dispute is set out in my written reasons for judgment handed down on 14 November 2018.  I do not propose to repeat that.

2. Relevantly for these reasons however, I note that prior to the substantive proceedings, the child was living with the mother and spending six nights per fortnight with the father.

3. The father’s application in the substantive proceedings can be summarised as follows:

   a)if the mother remained living in Australia, the child live with him and spend six nights per fortnight with the mother, half of each school holiday period and special occasions;

   b)if the mother was not living in Australia:

   i)he should have sole parental responsibility for the child;

   ii)the child should live with him; and

   iii)the child spend time with the mother at various times, both in Australia and in any other country to which she relocated provided that it was a Hague convention country; and

   c)consequential orders relating to schooling and the child’s participation in sports.

4. In her response to initiating application filed on 18 April 2018, the mother sought orders for sole parental responsibility of the child with respect to education and health matters, provided that she keep the father informed and seek input from him about such matters.  Importantly, she also sought orders that she be permitted to relocate with the child to City F in the United States of America on or after 22 November 2018 and that the child spend time with the father both in Australia and in the United States at various times during holidays.

5. Ultimately, I made orders in the terms sought by the mother.

Relevant statutory provisions and legal principles

1. It is common ground that the court’s power to order costs in parenting matters is a discretionary one and arises from section 117 of the Family Law Act 1975 (Cth). 

2. The starting point is contained in section 117(1) which relevantly provides:

   Subject to subsection (2)… each party to proceedings under this Act shall bear his or her own costs. 

3. Section 117(2) states:

   If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A)… and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

4. Section 117(2A) then provides:

   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.

Application in a case

1. The mother’s application in a case seeking costs was accompanied by an affidavit filed by the mother’s solicitor, Ms Hargreaves sworn 11 December 2018.  In that affidavit, as well as setting out the procedural history to this matter, Ms Hargreaves attested to the following:

   a)following receipt of the family report prepared by Ms A on the mother’s instructions, Ms Hargreaves sent a proposed consent minute to the father in which the mother set out her proposal for resolution of the parenting proceedings;

   b)she sent this letter of offer dated 13 August 2018 to the father’s lawyers;[1] 

   c)also on 13 August 2018, a copy of the letter of offer was conveyed to the father’s counsel by the mother’s counsel by email.  That email relevantly stated:

   Hi Mr B,

   My instructors are writing to your client as we speak with a settlement offer.  I thought, given that you’re conferring with him this afternoon, that it might be useful to provide a copy to you to have a look at, and to discuss with him, particularly given that he is self-represented.  Please find the letter and proposal attached.

   Please feel free to call me to discuss.

   Best,

   [1] However, it is apparent from the terms of Annexure GH-1, which is a copy of the letter of offer that the letter of offer was sent directly to the father at his personal email address.  At the time the letter of offer was sent, the father at that time was not legally represented.

   Johannes

   d)on 14 August 2018, the father’s newly appointed legal representative sent an email to Ms Hargreaves in which it was said (“14 August email”), among other things:

   Mr Hoult of Counsel has indicated that Mr Schmidt of Counsel has approached him with a Minute of Proposed Consent Orders for discussion.

   Our client is unwilling to consent to any Orders that will see [X] relocate to the United States, despite the recommendations of the Family Report Writer Ms A.  Accordingly it seems likely the Final Hearing will run.[2]

   e)on 15 August 2018, the mother filed an amended response to initiating application and supporting affidavits by the mother, her partner, Mr C and her treating psychologist Dr D; and

   f)on 21 August 2018, the father filed a further amended initiating application in which he particularised the final orders he sought. 

   [2] In any event, the father was represented at the final hearing by Mr Thistleton of counsel, not Mr Hoult of counsel.

2. The father filed two affidavits in support of his response to the application in a case, one sworn by him on 25 January 2019 and an affidavit from Mr E sworn on 23 January 2019.  The second affidavit goes to issues of a business dispute between Mr E and the mother and appears to be directed primarily towards the father’s application for security for costs, which was ultimately not pressed.  Mr E’s evidence does not really go to the matters relevant to the costs application before me.

3. The father deposes the following in his affidavit:

   a)in relation to the letter of offer, he conceded that he received it by email, however says that at the time he was unrepresented, and was “so stressed (he) did not even mentally register what the letter was”[3];

   b)he did not provide a copy of the letter to his lawyers, nor did he mention it to them;

   c)he met with Mr Hoult in his chambers with his solicitors and discussed the upcoming hearing and the family report which had been prepared;

   d)after hearing the concerns expressed by the father about his views of the family report, Mr Hoult said “I guess there is no point showing you the offer from the other side?” to which he responded “no”;[4]

   e)Mr Hoult did not provide him with a copy of the letter of offer;

   f)neither he nor Mr Hoult had shown his lawyer the letter of offer before she sent the 14 August email to the mother’s representative.

   [3] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph [7].

   [4] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph [9].

4. The father’s affidavit also states that his costs of defending this application would be “approximately $5,000” although I note that he does not annex any correspondence from his representative to evidence that assertion.[5] 

   [5] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph [17].

5. The father asserts that he believes “the mother to be impecunious”[6] although the only basis for that assertion is the reference to the fact that the mother’s legal fees of $28,000 have not been paid.

   [6] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph [20].

6. Quite astonishingly, however, he goes on to say:

   Further I believe it is likely this costs application has been brought as the Mother has ostensibly failed to pay her legal costs and relocated to the United States.  As a result Hargreaves Family Lawyers are hoping to obtain payment for me as the only potential source of these funds.[7]

   [7] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph [21].

7. This is a very serious allegation as it implies that:

   a)the mother has not and will not meet the costs of her legal representation;

   b)the mother’s lawyers have brought this application without instructions;

   c)in effect, this is an abuse of process by the mother’s lawyers to circumvent some civil claim they might otherwise have to recover their costs as against the mother.

8. There is simply no evidence in the father’s affidavit upon which such serious allegations could properly be made and it does the father no credit to make such allegations.  This is particularly so where the father’s affidavit was prepared with the assistance of his legal representation.

9. The father then goes on to assert that the mother has been in breach of the final orders made by this court.[8]  He points to these alleged breaches as a further basis to resist the mother’s application for costs.

   [8] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraphs [22] to [41].

10. The father also deposes that in light of the final orders made, he has now considered the prospect of having to relocate to the United States so that he can spend time with his son.  He has provided details of the costs associated with any such move.[9] Although he acknowledges the evidence in the substantive proceedings about his weekly earnings and the fact that at the moment he is living rent free, he deposes that he will need the bulk of his earnings over the course of the coming 12 months to save for his move to the United States.[10]

    [9] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph [44].

    [10] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph [45].

11. The father also set out the basis upon which he was seeking that the mother’s application for costs be summarily dismissed.[11]  

    [11] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph [52].

12. As stated, ultimately, when the matter came before me for directions on 31 January 2019, the parties agreed to a consent minute which provided for the costs application to be determined on the basis of written submissions.

Submissions

1. Both parties filed extensive submissions attesting to their respective positions in relation to the issues arising in the costs application.

2. I do not propose to summarise those in any great detail.

Mother’s submissions

1. In essence, the mother’s case is that costs ought to be awarded for the substantive proceedings for the following reasons:

   a)the discrepancy between the financial circumstances of each of the parties which reveal the father has the means to satisfy any order;

   b)in any event, even if the father’s evidence is accepted and he is planning to relocate to the United States, thereby impacting on his financial position, the court has accepted in the past that “financial impecuniosity is not determinative of an application for costs”[12];

   c)the mother made an offer to settle the substantive proceedings prior to the hearing, the father failed to accept that offer and:

   i)this was unreasonable having regard to the terms of the offer itself, being more beneficial than the orders ultimately sought and made at final hearing; and

   ii)the father’s rejection of the offer may have been made against legal advice;

   d)in relation to the question of whether the father acted contrary to legal advice, an adverse inference ought to be drawn from the father’s failure to produce any notes of his discussions with Mr Hoult;

   e)the directions hearing on 31 January 2019 need not have proceeded had the father agreed to consent minutes proposed by the mother’s representative;

   f)much of the father’s affidavit material filed in response to the costs application was inadmissible and therefore, further costs have been thrown away; and

   g)the father was wholly unsuccessful in the substantive proceedings.

   [12] Loomis & ML Lawyer [2016] FamCAFC 168 at [57].

2. The mother’s submissions then addresses the quantum of the costs sought and argues that:

   a)any costs ought to be taxed in accordance with the Family Law Rules 2004 (Cth), or alternatively, if that is not accepted;

   b)costs ought to be ordered in accordance with Rule 21.10 of the Federal Circuit Court Rules 2001 (Cth) in the total sum of $33,027.

Father’s submissions

1. The father’s submissions make the following points:

   a)no costs orders should be made in a parenting matter which involved an international relocation;

   b)there is therefore no proper basis for the costs application itself, or at least for any order for costs to be made; and

   c)the mother has not come to the court ‘with clean hands’ and therefore “an application for costs is not open to her”.[13]

   [13] Father’s submissions filed 28 February 2019 at paragraph [4].

2. The father essentially seeks that:

   a)the mother’s costs application be dismissed;

   b)the mother be ordered to pay the father’s costs of defending the costs application fixed in the sum of $7,500; and

   c)if the mother is ‘impecunious’ as alleged by the father and Mr E and there are no assets owned by the mother within Australia to satisfy any costs order, the mother’s lawyers, Hargreaves Family Lawyers, pay the costs awarded in the father’s favour out of funds they have already received from the mother as fees for the substantive family law proceedings.[14]

   [14] Father’s submissions filed 28 February 2019 at paragraphs [5] to [7].

3. In relation to section 117, the father submits that section 117(2) “requires a finding of justifying circumstances as an essential preliminary to the making of an order (emphasis in original).”[15]

   [15] Father’s submissions filed 28 February 2019 at page 4.

4. As to the factors under section 117, it is submitted on behalf of the father that:

   a)he has struggled to work since these proceedings were on foot;

   b)he suffers from a number of health issues which have further impacted his income earning capacity and are likely to worsen if he were to relocate to a cold climate in the United States to be closer to his son;

   c)the income which the father gave evidence about in the substantive proceedings is irregular and likely to diminish if his injury continues to impact his ability to work;

   d)the mother’s evidence in the substantive proceedings was that if she were permitted to relocate, Mr C would be in a position to financially support her;

   e)the father has given evidence about the costs he would incur if he were to move to the United States;

   f)the father has an outstanding debt arising from the initial family law proceedings whereas the mother was represented by Queens’ Counsel on a pro bono basis in those proceedings;

   g)the father is unable to satisfy any costs order;

   h)having regard to the affidavit of Mr E, the mother “arguably has no equitable interest in any of the assets of the business”[16] and therefore misled the court when she said that she was in the process of selling those assets to meet the legal costs of the substantive proceedings;

   [16] Father’s submissions filed 28 February 2019 at page 6.

   i)Mr C gave evidence in the substantive proceedings that he had paid “what was presumably Counsel’s fees” and therefore the amount of $13,000 being in respect of counsel’s fees ought not be included in the mother’s application for ‘her’ costs;[17]

   [17] Father’s submissions filed 28 February 2019 at page 6.

   j)the mother is, “on the balance of probabilities seeking a costs order as she is impecunious”;[18]

   [18] Father’s submissions filed 28 February 2019 at page 7.

   k)it is further submitted that “the solicitors for the Father (sic)[19] have filed this unusual costs application, in an International Relocation Case, because they have no chance of otherwise receiving their fees”[20] and “There is, on the balance of probabilities, a likelihood the Mother will never pay her solicitors’ fees so they have commenced these proceedings as a desperate attempt to be compensated”[21];

   l)the mother has not complied with the final orders as deposed to by the father;

   m)to the extent that there is a suggestion that the father refused the offer made to settle these proceedings against the advice of his representatives, there is no evidence to support this claim and in any event it was reasonable in the circumstances where the mother was seeking orders to relocate with the child to another country for the father to defend that claim;

   n)it was open to the father to seek to have the matter dismissed summarily on 31 January 2019 and therefore his decision not to consent to orders in advance of that date was not unreasonable;

   o)although the substantive proceedings ultimately focused on the issue of relocation, the initial proceedings commenced by the father “were commenced in circumstances where the Mother decided to take the child overseas without the consent of the Father”;[22]

   p)to the extent that the substantive proceedings related to a relocation application, one party would ultimately either wholly succeed or wholly lose and in those circumstances, limited weight ought to be given to this factor;

   q)in terms of the offer made and rejected by the father, it is submitted that:

   while that offer, in hindsight is better than the devastating Orders handed down on 14 November 2018, the offer still represented a profound loss for the Father.  Consenting to the child relocating to another hemisphere, no matter how it is packaged in terms of holiday time and random child support bargaining, still amounts to a horrific loss for the Father and the paternal family.

   No offer, in the circumstances of this case, given the Respondent’s close and loving relationship with the child could have been considered other than one where the child remained in Australia.[23]

   r)there are no other factors which would weigh in favour of the granting of costs in this case.

   [19] I take this to have intended to be a reference to the ‘mother’.

   [20] Father’s submissions filed 28 February 2019 at page 7.

   [21] Father’s submissions filed 28 February 2019 at page 7.

   [22] Father’s submissions filed 28 February 2019 at page 10.

   [23] Father’s submissions filed 28 February 2019 at page 13.

1. I note that whilst the father’s submissions repeatedly take issue with the appropriateness of a costs order being sought in parenting matters generally and particularly in an international relocation case, the court was not referred to any authority which might support this proposition.

Mother’s submissions in reply

1. In summary, the mother’s submissions in reply make the following points:

   a)to the extent that it is argued that section 117 has no, or some reduced application to parenting cases in general or relocation cases in particular is a misapprehension on the part of the father;[24]

   [24] Mother’s submissions in reply filed 14 March 2019 at paragraphs [15] to [19] and the cases referred to therein.

   b)a number of the submissions made on behalf of the father are irrelevant, namely:

   i)untested allegations about the mother’s alleged breach of the final orders; and

   ii)claims that equitable principles which require litigants to come to court with ‘clean hands’ apply to the present application;

   c)a number of submission are baseless, namely that:

   i)the mother dishonestly engaged her solicitors in circumstances where she was unable to pay them;

   ii)the mother’s solicitors are unable to recover their fees;

   iii)the mother has misled the court;

   iv)the mother is impecunious; and

   v)the mother’s solicitors should be liable for part or all of the father’s costs on the basis that they have made the costs application without instructions, were thereby engaged in an abuse of process, have breached their duty to the court and have breached their duties to their client.

2. Counsel for the mother then replies to the father’s submissions relating specifically to section 117.[25] I do not propose to set these out in detail save and except for the reply submission made in relation to section 117(2A)(f), but I have had regard to them.

   [25] These matters are set out in detail at paragraphs [37] to [71] of the mother’s submissions in reply filed 14 March 2019.

3. In relation to the offers of settlement, it is submitted by the mother that the father’s argument that no costs order should be made in reliance on section 117(2A)(f) because the father did not, as a matter of fact, consider the offer made, is flawed. This submission is based on the following:

   a)the father concedes that he received the offer;[26]

   b)the father’s counsel was provided with the offer and therefore this knowledge should be imputed on the father’s lawyers and indeed upon the father;[27]

   c)in any event, whether the father expressly rejected the offer after having considered it, he implicitly rejected it by not accepting it; and he admits that he instructed his solicitors that “he would not settle in any circumstances”[28]; and

   d)the question is not whether or not it was reasonable for the father to reject the offer, the question is whether he properly considered it so as to avoid the costs associated with litigation.

   [26] Mother’s submissions in reply filed 14 March 2019 at paragraph [62].

   [27] Mother’s submissions in reply filed 14 March 2019 at paragraph [66].

   [28] Father’s submissions filed 28 February 2019 at page 12.

4. It is further submitted that the father’s argument that the mother’s costs should be reduced to the extent that the mother’s partner, Mr C has already paid some of those costs, should be rejected.  Counsel for the mother submitted that the costs application is in respect of the mother’s costs in the litigation.  She does not become disentitled to recover those costs even if Mr C paid some of those costs.[29]

   [29] Mother’s submissions in reply filed 14 March 2019 at paragraph [77].

5. Finally, it was submitted on behalf of the mother that if the court is not inclined to grant the mother’s application for costs, it should reject the father’s application for his costs associated with the costs application to be met by the mother.  The basis of this submission is largely due to the conduct of the father in relation to the costs application.[30]

   [30] Mother’s submissions in reply filed 14 March 2019 at paragraph [79].

Consideration

1. As noted above, the starting point in a costs application under section 117 is that each party bears their own costs unless the court is of the opinion that there are circumstances which justify the making of an order for costs “as the court considers just”.[31]

   [31] Family Law Act 1975 (Cth), section 117(2).

2. There is no general rule that parenting orders are to be treated differently to any other proceeding under the Family Law Act 1975 (Cth). Similarly, there is no general rule or requirement that relocation cases, or international relocation cases specifically are to be treated in any particular way. Ultimately, the court must have regard to the relevant considerations under section 117 and determine whether the circumstances justify making an order and if so, what order would be just.

3. The relevant considerations to which the court must have regard are set out in section 117(2A).

Financial circumstances of the parties – section 117(2A)(a)

1. I accept the father’s evidence that it is his intention to explore the possibility of a move to the United States to be in a position to spend more time with his son.  Whilst he currently earns a reasonable wage and has rent free accommodation, I accept that may not continue indefinitely.

2. The mother’s evidence in the substantive application is that for the time being, her intention was to be a stay at home mother and that she would be able to do this with the support of her family and in particular, her partner, Mr C. 

3. Ultimately, while this factor is relevant, it is not determinative.

Conduct of the parties in relation to the proceedings – section 117(2A)(c)

1. Having regard to the history of this proceeding, there is nothing demonstrated in the actions of either party which unduly lengthened or delayed the proceedings.  Neither party made unnecessary applications or failed to make proper disclosure or the like. 

2. It is true that the father did file his further amended application in which he sought a change of residence and orders that if the mother relocated to the United States, that he have sole parental responsibility and the child live with him, and that this amendment was made after the parties were provided with a copy of the family report. 

3. The father has given evidence in his affidavit of 31 January 2019 of the various concerns that he had with Ms A’s report.  He was entitled to seek to test her findings and recommendations and it was appropriate that if he was successful in either having her reconsider her recommendations or alternatively, if he was successful in convincing the court that it ought not adopt her recommendations, that he have an alternative proposal for the child to live with him if the mother were to move to the United States.

4. Again, this factor is not determinative of the issue.

Were proceedings necessitated by the failure of a party to comply with previous orders – section 117(2A)(d)

1. Notwithstanding that the substantive proceedings were initially commenced by the father seeking an airport watch list order, the ultimate issues at trial were whether or not the mother ought to be permitted to relocate with the child to the United States of America.  Those matters did not arise as a result of a party not having complied with previous orders.

2. This factor is therefore not relevant to my determination.

Whether any party had been wholly unsuccessful – section 117(2A)(e)

1. It is not in dispute that the father was wholly unsuccessful in his application and the mother was wholly successful in her application.

2. The father’s submissions go to the question of whether or not it was reasonable for him to have persisted in the context of an international relocation case. Whilst that might be relevant to other provisions in section 117(2A), it does not assist in considering this factor.

3. This factor therefore does weigh in favour of the making of a costs order as sought by the mother.

Whether either party to the proceeding has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer – section 117(2A)(f)

1. It is not in dispute that on 13 August 2018, the mother’s solicitor sent a letter of offer to the father, who at that stage was representing himself.  It is also not in dispute that the mother’s counsel sent a copy of that letter of offer to the father’s counsel in anticipation of a meeting that they were to have.

2. The father concedes that he received the letter of offer, although he says that he did not “register what the letter was” or mention it to his solicitor.[32]

   [32] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph 9.

3. The father also concedes that when he met with Mr Hoult of counsel, Mr Hoult said words to the effect of “I guess there is no point showing you the offer from the other side” to which he replied “no”.[33]

   [33] Affidavit of the father sworn 25 and filed 29 January 2019 at paragraph 10.

4. I am satisfied that the mother made an offer to settle the proceedings and that the father, without giving any consideration to the terms of the offer on his part, rejected it.  As noted by Nygh J (with whom Simpson and Smithers JJ agreed) in Higginbotham & Robinson (1991) 14 FamLR 559; (1991) FLC 92-209:

   … when one looks at para (f) it is quite clear that the purpose of that provision is to ensure that offers to settle, if made seriously, are considered seriously, to ensure that the cost of litigation is avoided, the workload of this court is lightened, and one other consideration is certainly that a party with greater wealth is not placed in a position whereby he or she can wear out the other by simple attrition.[34]

   [34] Higginbotham & Robinson (1991) 14 FamLR 559; (1991) FLC 92-209 at [561].

5. I am satisfied that the father was not prepared to accept any offer made which involved a concession to the mother permitting her to relocate.  He therefore refused the offer made to resolve the proceeding. This factor weighs in favour of the granting of an order sought by the mother.

Such other matters as the court considers relevant

1. Whilst it is the case that the father rejected the offer made to resolve the case on the terms set out in the letter of offer made on 13 August 2018, it is also relevant that in a case such as this, the father cannot be criticised for pressing his opposition to the relocation. 

2. He quite rightly points out that he took issue with some of the information contained in the family report and given the devastating consequences to him of an order made permitting the relocation, it was entirely appropriate that he do so and that those issues be fully explored at a final hearing.

3. The discretion in section 117 permits the court to make such order as it considers to be just in the circumstances.

4. I do not accept the submission made on behalf of the father that in parenting cases as a general rule, or in international relocation cases more specifically, it is unusual to make an order for costs. The imposition of any such rule would be an unlawful fetter on the discretion conferred by section 117.

5. There are any number of circumstances where, given the conduct of one of the parties, it may be appropriate for an order for costs to be made in such cases. However, ultimately, having had regard to the factors set out in section 117(2A), the court must determine what, if any, order is just.

6. I have had regard to the fact that the child had, prior to moving to the United States, lived with the father on a six nights per fortnight basis, and consequently that irrespective of the concessions made by the mother for additional holiday time and additional contributions to travel expenses and the like, the orders sought by the mother would represent a significant shift in the status quo.  

7. Having regard to that factor, together with the other factors in section 117 discussed above, on balance, I am not satisfied that any order for costs would be just in the circumstances of this case.

Costs of the application in a case

1. As noted above, if the court were minded not to grant the orders sought by the mother in her application in a case filed 12 December 2018, the father seeks orders that the mother pay his costs of responding to that application and, if she is unable to meet those costs, the mother’s solicitors pay the mother’s costs.

2. I am not satisfied that it is appropriate to make any order as to costs in relation to the application in a case.

3. The relevant factors under section 117 which weighed in favour of the granting of the mother’s application included:

   a)that the mother was wholly successful; and

   b)that an offer was made in writing and communicated to the father which was ultimately in more beneficial terms for him than the final orders made by the court.

4. Moreover, the father’s response to the application:

   a)unnecessarily added to each of the parties’ costs by including a number of assertions which were misconceived, without proper basis and largely irrelevant;

   b)the father’s attempt to have the matter dealt with summarily at a directions hearing resulted in the parties unnecessarily incurring the costs associated with attending that directions hearing; and

   c)included evidence which was irrelevant to the issues before the court, namely the consideration of the factors in section 117, again resulting in the parties unnecessarily incurring the costs associated with preparing and responding to that material.

5. In all of those circumstances, I am satisfied that each party ought to bear their own costs in relation to the mother’s application in a case. 

Conclusion

1. For these reasons, I make the following orders:

   a)the mother’s application in a case be dismissed; and

   b)there be no order as to costs.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:      2 August 2019