Garone and Jolivet

[2011] FamCA 321

FAMILY COURT OF AUSTRALIA

GARONE & JOLIVET [2011] FamCA 321

FAMILY LAW - COSTS - Between parties - Circumstances justifying order

Family Law Act 1975 (Cth)

Penfold & Penfold (1980) FLC 90-800

APPLICANT: Ms Garone

RESPONDENT: Mr Jolivet

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 2988 of 2007

DATE DELIVERED: 25 March 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 25 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brown

SOLICITOR FOR THE APPLICANT: Brown The Family Lawyers

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Tiyce

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Parramatta

Orders

1. I order that Mr Jolivet pay the legal costs and disbursements of Ms Garone in respect of proceedings commenced by the father on 25 May 2007 from that day until the conclusion of the hearing before Flohm J on 15 October 2009.

2. I order that those costs be as agreed between the parties or as assessed by a proper assessing officer.

3. I order that the costs be paid:

   (a)       in a time agreed between the parties;  or

   (b)       within nine months of the parties reaching agreement or the issue of a certificate of assessment by the assessing officer hereinbefore referred to.

4. I order that Mr Jolivet pay Ms Garone’s costs of this day as agreed or as assessed by a proper assessing officer.

5. I order that such costs of today be paid either:

   (a)       as agreed between the parties;  or

   (b)       within 12 months of the issue of an assessment of costs by a proper assessing officer. 

IT IS NOTED that publication of this judgment under the pseudonym Garone & Jolivet is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:      PAC 2988 of 2007

Ms Garone

Applicant

And

Mr Jolivet

Respondent

And

Legal Aid NSW Parramatta

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Before me today for hearing is an application for costs brought by Ms Garone against Mr Jolivet.  The costs application arises out of a matter heard by Flohm J.  Her Honour delivered judgment on 29 April 2010. This was her Honour’s last day of sitting. Her Honour made a suite of orders on that day to which I will refer shortly.

2. So far as the cost application was concerned, order 21 of her Honour’s orders made 29 April 2010 reserved the question of the mother’s costs and granted leave to the mother’s solicitor to list the matter before a registrar within 14 days for further directions.  The matter then followed a course before a registrar and was finally listed initially for hearing on 26 November of last year.

3. The matter came before Johnson J on 1 November and on that day his Honour vacated 26 November as the hearing date and made orders that the parties approach the list manager to obtain dates to ventilate the issue.  That resulted in the matter coming before me today.

4. When the matter came before me Mr Jolivet sought to pursue his own application for costs.  He conceded that the application for costs was only really formulated as part of his case summary document which was made available this morning.  In that document, in orders sought 7, he asked that the mother pay costs, including the costs of a McKenzie friend, and that the solicitor for the mother pay not less than 20 per cent of the parties’ combined costs.

5. That second prayer was abandoned very early.  I pointed out to the father that in order for me to in any way entertain his application for costs he would need leave to bring such an application out of time.  After some discussion and submissions Mr Jolivet conceded that he could not succeed in an application for leave and that application was subsequently dismissed.  That left, so far as I was concerned, the issue of the mother’s costs to be determined today and in that regard I then heard submissions from Mr Brown, from Mr Jolivet and, briefly, from Mr Brown in reply. 

Brief Background

1. A brief history of this matter is, in my view, of significance.  The proceedings concern the child, H, who was born in October 2002.  The applicant for costs, Ms Garone, is his mother. The respondent to the cost application, Mr Jolivet, is his father. 

2. Parenting issues concerning the child have existed in this Court for some time.  There were proceedings commenced in 2005.  Those proceedings resulted in orders being made by consent on 1 May 2006 providing that the child was to live primarily with the mother and with the father on alternate weekends and one overnight stay per week.  Following those orders the matter then seemed to simmer, and I use that word advisedly, with numerous reports being made to Department of Community Services by the father or some anonymous person.

3. The father filed a further application in this Court on 27 May 2007.

4. The child was due to be returned to the mother on 29 May 2007. He was not.  The mother, on 30 May 2007, applied for a recovery order.  On 1 June an order was made for the return of the child, and suspension of orders. 

5. On 8 June 2007 further interim orders were made.  The matter then proceeded to a hearing before her Honour.  That hearing occupied, as I understand it from the judgment itself, the following dates:  8 to 10 January 2008;  22 and thereafter 25 to 27 August 2008;  17, 21 and 24 November 2008;  27 and 28 January 2009;  13 to 15 October 2009, and subsequently delivery of her Honour’s judgment on 29 April 2010.

6. The orders that her Honour made were to discharge all previous orders, to grant the mother sole parental responsibility for the child and to order that the father was to spend time during school terms each alternate weekend from Friday to Monday, and for one-half of each mid-year school period. There were orders that might be called consequential orders in respect of the child.

7. It is of significance to compare the orders finally made by Her Honour with the orders sought at various times by the father in the course of these proceedings, for reasons that I trust will become clear when I come to deal with the matters which, by law, I must consider.

8. The father, when he brought his application in May 2007, sought orders, that the child live with him and have supervised time with his mother. The father’s case, as always presented and which he still presents before me this day, is that the child was at risk and these orders were necessary for the child’s protection.

9. At the time of submissions to Flohm J, the father’s position was that the parents should have equal shared parental responsibility and equal time with the child. 

10. That is very different from the actual orders made by her Honour, whereby her Honour conferred sole parental responsibility on the mother and allowed the father time which, on his calculations (on which I accept for the purpose of these reasons) amounts to approximately 28 per cent of the child’s time.

The Parties’ Material

1. A good deal of affidavit material has been filed by each of the parties.  The mother has filed an affidavit and filed and relied upon two statements of financial circumstances, one of 9 August 2010, and one of 10 May 2011. 

2. The father, for his part, in his case outline document, has referred me to a very large number of affidavits, some of which, in my view, have little or no bearing on the matter. He has relied on the affidavit of Ms T of 1 September 2010. He sought to put before me a transcript which I found of no assistance and I will return to discuss this shortly in these reasons for judgment.

3. In addition, the husband filed an affidavit in Court today and he has relied on a statement of his own financial circumstances. 

4. One of the difficulties today for both myself and Mr Jolivet has been what Mr Jolivet has expected and believed today’s proceedings would actually entail.  From reading his practise direction document, and from hearing what he has had to say, it is clear that he has sought to cavil with and, if possible, have reversed the findings that were made by her Honour, which were critical of him. Further, it would seem, that in addition he seeks to have me make findings as to the mother’s veracity and conduct during the trial that would be adverse to her. Certainly such findings concerning the mother would be contrary to the trial Judge’s findings.

5. As I have endeavoured to explain to him, his remedy in this respect does not lie in attacking the matter in that fashion today but rather lies in an appeal to the Full Court of the Family Court.  Mr Jolivet has left me somewhat confused having said he is unable to afford, or was unable to afford, the costs of such an appeal.  He then told me in a document that he had pending before the High Court of Australia an application for a prerogative writ. He now tells me that he has not been able to file that document for some reason.  I make mention of that because it would seem to me that if he was to proceed in any matter in the High Court he must have been in the position to (a) give the matter some consideration and (b) he must have had some expectation of being able to fund such an exercise.

6. In the event, nothing has been done.  Therefore, I am satisfied that I am required as a matter of law to accept the findings of Flohm J expressed in her judgment and unchallenged in any proper sense since the date of those orders.

The Law to be Applied

1. The application is one for costs in the Family Court of Australia. Costs are governed by s 117 of the Family Law Act. The first part of that section provides that the usual course is that each party will bear their own costs in proceedings in this Court.

2. However, it is made clear by s 117(2) that if the Court is of opinion that there are circumstances that justify in doing so, the Court may, subject to subsections (2)(a), (4) and (5) – and I am satisfied that for the purpose of this consideration then paragraphs (4) and (5) have no application – the Court may make such order as to costs and security of costs whether by interlocutory or otherwise as the Court considers just.

3. The High Court of Australia in Penfold’s[1] case considered this section.  They found that the requirement was that circumstances existed that need not be special or exceptional circumstances but which did require the making of an order.  Subsection (2)(a) says this:

   In considering what order, if any, should be made under subsection (2) the Court shall have regard to –

and thereafter are set out paragraphs and subparagraphs identifying issues to which I will return shortly. There is also, as at today’s date, in the Family Law Act, s 117AB(1) which requires:

If proceedings are brought under this Act and the Court is satisfied that a party knowingly made a false allegation or statement, the Court must order that party to pay some or all of the costs of the other party.

i)[1] (1980) FLC 90-800.

1. I will deal with those matters to some extent in reverse.  I apprehend the father is trying to point out the mother’s wrongdoings in an attempt to attract the protection of that section. Unfortunately for him nothing that he has been able to put before me has established that her Honour has found, so that I may act upon it, that the mother has made a false allegation or statement.

2. On the other hand, Mr Brown, in his submissions, has taken me to a number of paragraphs where her Honour has made direct findings that reflect on the husband to the extent that her Honour was satisfied that that particular part identified in her judgment clearly indicates that she was satisfied that the husband had indeed made a statement which is a false allegation or statement.  I will return to and identify some of those matters.

3. Mr Brown submitted on behalf of the applicant wife that the first of the matters to which I would give consideration, not in the sense of it falling first in the section, but because it was a matter of more significance than other matters was the conduct of the parties.

4. Particularly, he refers to the conduct of the husband, and it would be remembered subsection (c) provided that I must:

   ...have regard to the conduct of the parties 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, admission of fact, production of documents and similar matters.

5. As I understand it, Mr Brown does not base his submissions on a failure to comply with pleadings, particulars, etc. as set out in the section. He relies upon the way the husband conducted the proceedings.  Proceedings which I must indicate occupied some 17 days of the Court’s time which, to me, and I say this with the greatest of respect to everyone involved, seems an extraordinary amount of time for a case such as this.  It is, as I understand it, the wife’s case that she had no alternative but to become embroiled in the case that had been commenced by the father.  I am satisfied that this is so.  The father’s application, as I have said, was initially that the child live with him and the mother have only supervised time with the child.

6. Certainly, the wife, then, filed her own application which was for a recovery order which was granted. The father then proceeded to have these proceedings continue until her Honour delivered judgment. As I have said, an extraordinary amount of time and energy was expended. But in addition to the length of the proceedings Mr Brown has taken me with some particularity to a number of findings of her Honour. What I intend to do is examine those findings briefly but look at them, as it were, together but individually, to have regard to s 117(2)(c) as to conduct, whilst having regard at all times to s 117AB in relation to the question of any false allegation or statement.

7. The first of such matters identified on behalf of the wife is the finding made by her Honour that the father had been dishonest with the Court in relation to a number of factual matters.  Those statements appear in paragraphs 14 and 17 of the judgment and are of some generality but nonetheless of real significance.  Clearly, that is a finding that her Honour found that statements and allegations made by the father were untrue.  Her Honour further referred to the little similarity contained between what H was alleged to have said and what was reported to child welfare authorities as appearing in paragraph 20 of the judgment.

8. Her Honour, at paragraph 21, found she did not believe a statement that was made in relation to the child’s uncle requiring him or making him indulge in drug use.  Then central to the allegations were her Honour’s findings that she did not accept the evidence of the father that he was approached by an anonymous, unidentified person who made statements to him as to the mother mistreating the child. Her Honour found that entirely implausible and dealt with that issue, which, as I say, I find very significant in relation to this matter, at paragraphs 31 and 32 of the judgment.

9. At paragraph 34 her Honour found that the father made false allegations of sexual abuse.  If one were looking to bring within the wording of the relevant subsection, which is “knowingly made a false allegation or statement in the proceedings”, her Honour’s finding of a false allegation of sexual abuse falls absolutely and squarely within that definition.

10. It is pointed out to me her Honour made a finding of hypocrisy on the part of the father.  To my mind that does not really affect the issue of what his evidence was as against a test of truth but nonetheless reflects the husband’s attitude. 

11. Her Honour found that the husband had completely invented an alleged exculpatory letter from a Ms V who later gave evidence against him.  The reference to that is to be found in the judgment at paragraph 30.  Her Honour found at paragraph 37 that the father was a most unreliable witness whose evidence could not be accepted. It is put to me in submission by Mr Brown that the father brought these proceedings in bad faith saying that they were necessary because the mother had done, or allowed to be done, certain things. 

12. I have already made mention of the way her Honour dealt with the statement by the father that he had brought to his notice by a woman in a car park, observations by that person that she had seen the mother mistreating the child.  As I have said, her Honour did not accept that evidence.

13. Her Honour, in the latter part of her judgment, found that the father was waging a deliberate campaign to destabilise the mother (paragraph 95), that the father was waging a cruel and heartless campaign (paragraph 97), that the father made complaints to Department of Community Services so that the authorities would raise a complaint against the mother, or with her, and she would be significantly distressed by that (paragraph 95). 

14. Her Honour found, and I find this significant, the father wanted to remind the mother on a frequent basis that he had control of her life (paragraph 96).  And her Honour found, at paragraph 98, the father sought to destroy the mother’s emotional and mental health even at the expense of his son’s wellbeing. 

15. I am conscious that Mr Jolivet is distressed by these findings, particularly as I recite them as part of my judgment.  However, they are the findings made by her Honour and they are the findings that are not the subject, nor have they been the subject of any attempted, let alone successful, challenge.

16. I find that a combination of these matters when looked at in terms of subsection (c) and s 117AB indicate to me that these proceedings were unnecessary, that they ought not to have been brought by the father, and that there was very little, if any, merit in bringing those proceedings. 

17. I turn, then, to consider whether either party has been wholly unsuccessful          (s 117(2A)(e)).  The father, clearly, in the light of his originating application, that is, child to live with him and have supervised time with the mother, has been completely unsuccessful. In the end result, the orders of her Honour provide that he has less time with the child than he had pursuant to the consent orders of 1 May 2006. Further, he has lost any share of parental responsibility as a result of her Honour conferring sole parental responsibility upon the mother.

18. Even when looked at against his amended or altered situation at the time submissions were made to her Honour he was at that stage seeking equal shared time and, as I have said, on his figures I accept that which he has achieved is 28 per cent of time with his child. 

19. The question was posed, what could the mother have done to avoid accumulating the costs that she did.  The only answer that I can see is that she could have declined to take part in the proceedings which would have, in all probability, resulted in the father obtaining orders as sought by him.  In real and practical terms the mother had absolutely no alternative but to contest the proceedings as she did. Those proceedings, as I have already said, occupied 17 hearing days. 

20. A good deal has put before me as to the financial circumstances of each of the parties (s 117(2A)(a)). This is not a property or maintenance matter.  I am not required to fix with precision the relative financial positions of the parties as though I were involved in a property or maintenance dispute.  The Full Court has made it clear that an overview of the parties’ financial situations is what is appropriate in these circumstances rather than any dollar-for-dollar exercise.  The mother has filed, as I have said, two statements of financial circumstances.  They are significantly different as to the amount of their income.  In her first she shows a weekly income of $3,500, in her second, of $138 a week.

21. It is submitted to me, and for the purpose of this matter I accept, that the mother is a person who has always enjoyed paid employment and would in all probability return to paid employment sooner rather than later with a significantly high level of income from that employment.

1. The father’s situation, as I apprehend it, is that his income is $2,797. This is somewhat less than the mother’s income as disclosed in her first Form 13 but significantly greater than the mother’s current situation as asserted by her.

2. The father tells me he has a person living with him and that person would seem to make some modest contribution to the expenses of the household.  The person to whom I refer is Ms T who provides some $328 a week.

3. The husband pays mortgages. He points out that he pays mortgages where the wife has to pay rent and his mortgages are higher.  In my view, I can take into account that the mortgage he is paying goes in some way towards the realisation of a capital item that the mother does not have.

4. The mother has the responsibility for the child of the parties for very much the greater part of the child’s time. The husband pays something between $50 and $60 a week for child support. The mother has other children in her care. Whilst I am satisfied that neither party is particularly well-off, I am satisfied that the father at the present time is certainly in a preferred position to that of the mother.

5. Mr Jolivet says he is, as it were, standing with one foot in bankruptcy. I understand his financial position may be difficult. 

6. I also understand that the mother has significant debts that have arisen as a result of this litigation.

7. There are a significant number of cases that indicate that impecuniosity is not a defence to an application for order for costs, although it may well resound in the quantum of costs and it may certainly have significance in respect of an application for enforcement. 

8. Costs are not punishment. Costs are compensatory. Costs are to put a party in a position as close as possible to where they might have been had the proceedings not been brought and that, to my mind, is something I must bear in mind here with some real awareness having regard to the factual circumstances that surround this case. 

9. The other matters that I am required to take into account are whether the proceedings were necessitated by the failure of a party to comply with a previous order (s 117(2A)(d)).  Mr Brown sought to make something of that. To my mind and with great respect it is not of particular relevance here. 

10. The final matter applicable to this case is such other matters as the Court considers relevant and no issues are raised under this heading (s 117(2A)(g)).

Conclusion

1. This is, to my mind, an object reminder of what can occur when litigation becomes all-consuming in its effect upon a party involved in litigation. That litigation often, as in this case, continues for an inordinate length of time and occupies wholly unnecessary amounts of Court time. 

2. I am satisfied that the conduct of the husband alone would justify an order for costs. However when I take into account the requirements of s 117AB(1), I am satisfied that the costs order as against the husband is entirely inescapable.

3. I have given consideration to whether such a cost order should be for the whole of the costs, or whether there should be some reduction so as to provide for a payment of a proportion only of the total amount of costs.

4. I have come to the conclusion that in this case to reduce the costs the wife is to receive would be an injustice to her.  I have come to the conclusion that the only result open to me is to make an order that Mr Jolivet pay the costs of Mw Garone.  That will mean, in the orders that I will make momentarily, that the amount he will pay will be the entirety of the amount which is either agreed between the parties or failing agreement as assessed by a proper person.  I propose to order that the father have nine months or such other time as the parties can agree to pay that amount.    

5. A further application is made for the costs of today.  I am satisfied, having regard to the reasons I have set out in relation to costs of the suit, that it is appropriate in all the circumstances that the mother have her costs of today. 

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 25 March 2011.

Associate:

Date:  6 May 2011