GEMUNU & GUNASEKARA (No.2)
[2019] FCCA 344
•15 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEMUNU & GUNASEKARA (No.2) | [2019] FCCA 344 |
| Catchwords: FAMILY LAW – Costs – application for costs after nine day parenting trial. |
| Legislation: Family Law Act 1975 (Cth), s.117. |
| Cases cited: Gunasekara & Gemunu [2018] FCCA 131 Eades & Wrenstead [2014] FCWA 64 Wrenstead & Eades [2016] FamCAFC 46 |
| Applicant: | MS GEMUNU |
| Respondent: | MR GUNASEKARA |
| File Number: | DGC 2847 of 2016 |
| Judgment of: | Judge Harland |
| Hearing date: | 18 September 2018 |
| Date of Last Submission: | 14 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 15 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Dr O'Brien |
| Solicitors for the Applicant: | D & M LAWYERS |
| Solicitors for the Respondent: | Christopher William Legal |
ORDERS
That the husband pay the wife’s costs fixed in the sum of $41,100, which sum be deducted from the husband’s share from the sale of the properties or final property orders, whichever is earlier.
IT IS NOTED that publication of this judgment under the pseudonym Gemunu & Gunasekara is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 2847 of 2016
| MS GEMUNU |
Applicant
And
| MR GUNASEKARA |
Respondent
REASONS FOR JUDGMENT
Proceedings for with respect to parenting orders were commenced by the father on 13 September 2016. The matter initially proceeded to final hearing on 25 October 2017 for three days. The final hearing was extended for a further six days part heard between 25 October 2017 and 13 December 2017.
In his initiating application the father sought sole parental responsibility of the three children of the marriage. He also sought for the children to live with him and that the mother’s time with the children be supervised.
On 17 January 2018 I made orders in chambers requiring the father to bring the children to the childcare facility at the court on 23 January 2018, as that was the day that I proposed to deliver reasons for judgment, and those orders also required all parties and their legal representatives to attend in person on 23 January 2018. I also noted that the Independent Children’s Lawyer (“ICL”) would explain the orders to the children with the assistance of a family consultant. The father did not comply with that order and did not bring the children to court, despite emailing Chambers stating he would attend with the children.
On 23 January 2018 I made final parenting orders. These reasons should be read with those reasons[1] for background. I ordered that the children live with the mother and for the children initially to spend no time and have no communication with the father for three months, then to have professionally supervised time for a further three months before progressing to unsupervised weekend time and time on other occasions. Due to the father and the children’s non-attendance at court on 23 January 2018 it was necessary to issue a recovery order for the children. The Australian Federal Police recovered the children. The father has not spent time with the children since. He filed an appeal on 20 February 2018, which he later abandoned. Property proceedings remain on foot, which are before another judge given the findings I made in the parenting proceedings.
[1] Gunasekara & Gemunu [2018] FCCA 131
The mother filed an application for costs on 20 February 2018 seeking three amounts inclusive of:
a)the sum of $4,400, with respect to the Contravention proceedings on 7 August 2017;
b)the sum of $1,200, being the costs reserved for the hearing on 4 October 2017; and
c)costs associated with the final hearing in the sum of $35,500.
The sum of the total costs sought by the mother is $41,100.
[7] to [11] of the mother’s submissions set out how the quantum of costs were calculated. She submits that though applying the Federal Circuit Court scale of costs the total is $44,799. The actual amount sought is less than the scale. The mother’s Counsel submits that these are not the total amount of the mother’s costs and I note there are also property proceedings that remain on foot before another judge of this court.
The mother filed an affidavit in support of her application for costs. The affidavit was prepared by the mother’s solicitor. The mother’s application for costs was adjourned by the then Judge Williams on 16 April 2018. When this came before me on 18 September 2018 Dr O’Brien appeared for the mother. She was the Counsel for the mother who appeared at the trial. The mother has had the same solicitor throughout the proceedings. The application and affidavit filed in support were woefully deficient. It did not identify how the costs were quantified. It made no reference to the Federal Circuit Court scale of costs. The mother’s solicitor did not file an affidavit annexing her costs agreement.
There was no way for the father or the Court to know how the mother had calculated the costs that she sought. The mother’s legal representatives had months between the filing of the application and when it came before me. They could have remedied this issue well in advance of 18 September 2018. The Court is entitled to expect that practitioners to prepare these applications properly.
As the father did not attend court on 18 September 2018, I made orders requiring the mother to file and serve any further material she sought to reply on together with written submissions within 28 days. The mother filed written submissions on 12 October 2018. The father was ordered to file any material and written submissions within a further 28 days. He did not do so.
Chambers wrote to the legal practitioners for both parties on 20 December 2018 noting that the father had not filed a response and written submissions. Chambers advised parties that the father could have a further period to file those documents and that they were to be filed on or before 14 January 2019, thereafter which Her Honour would make orders and deliver reasons in due course.
On 10 January 2019 chambers received correspondence from Christopher William Legal who stated they act for the husband but have only been able to get instructions from the father’s power of attorney and not the father directly. The father’s power of attorney instructed them that provided the costs are taken from the sale of the properties or the property settlement, the father would not contest the costs application. I am satisfied that the father is on notice about the application. I note that I am unable to treat this letter as consent to the order the mother seeks.
Section 117(1) of the Family Law Act provides that each party to proceedings shall bear their own costs. However, in order for the Court to make a costs order in favour of the mother, there must be justifying circumstances as set out in s.117(2A) of the Family Law Act:
(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.
In her written submissions the mother refers to the decision of Eades & Wrenstead [2014] FCWA 64 which is a decision of Walters J. She refers to his discussion of the approach to costs applications with respect to parenting matters and comments that there is nothing in the wording of s.117 that distinguishes parenting cases from financial cases. The Full Court dismissed the appeal against this decision: Wrenstead & Eades [2016] FamCAFC 46.
The financial circumstances of each of the parties to the proceedings
The mother’s financial circumstances are modest. She is supporting the children on Centrelink benefits and some part time work. The father has not been engaging in the property proceedings which presents a further barrier for the mother. As the sale of the properties have been delayed, due to the lack of engagement from the father, the mother has been unable to pay her legal representatives or access any resources from the property pool. The mother does not receive child support from the father. The mother believes he is living overseas and may have re-partnered.
The father has not submitted evidence of his financial circumstances to the court. The mother submits that the father has capacity to pay the costs that she seeks out of his share of the sale of the properties pursuant to final property orders. There are two properties in Australia in the husband’s name as well as a property in B Country.
Whether any party to the proceedings is in receipt of assistance by way of legal aid
Neither party are eligible for legal aid.
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
In her written submissions the mother refers to specific examples of the father’s conduct which caused delay in the proceedings and frustrated the mother’s relationship with the children. I accept those submissions and refer to my primary reasons for judgment.
The mother submits that the father’s refusal to engage with and work with a legal team prolonged and complicated proceedings. The father retained five lawyers throughout the course of the proceedings. All five lawyers were discharged or withdrew, with the most recent lawyer advising the Court that the father had failed to follow the barrister’s advice. This occurred during the part-heard trial.
The father’s conduct presented a pattern of disagreeing with anyone who was not in support of his case. This conduct was also present in the final hearing when the father sought to have the ICL discharged, sought to that I recuse myself from the proceedings and made complaints against the family report writer.
No doubt this conduct caused the extension of the final hearing. I made findings against the father in my primary judgement and will not repeat them here.
It is important to recognise that the father’s conduct was not the sole reason for the lengthy final hearing. Both parties required interpreters which understandably causes delays, the father was unrepresented and the father’s mother passed away during the final hearing and he had to travel to B Country. These delays cannot be attributed to the father’s conduct.
The mother also submits that the father was frustrating the children’s time with her. This conduct can only be relevant to the contravention hearing on 7 August 2017. The same must be said of the submission that the husband has failed to comply with Court orders in relation to making the children available for supervised time with the mother at the contact centre. This failure relates only to the costs accrued from the contravention hearing.
The mother further submits that the husband failed to comply with the Orders dated 7 September 2017 for the parties to attend upon Dr A. Correspondence received from the father, which raised concerns with respect to the family report, necessitated a Mention Hearing in order to ensure that the father would comply with court orders to attend upon Dr A. As such, this failure relates only to the costs accrued for the Mention Hearing on 4 October 2017.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The father has a history of not complying with Court orders.
Orders 13 and 14 of the Orders made on 28 April 2017 required the father to do all acts and things necessary to engage in the intake process with Family Contact Service to enable the children to spend time with the mother as soon as possible. The mother filed a contravention application after numerous attempts to contact the father after he failed to make an application to the Family Contact Service.
The contravention application was adjourned to the final hearing. There continued to be issues caused by the father in relation to making the children available and him refusing to attend his appointment with Dr A.
The mother submits that the father’s failure to comply with previous orders of the Court caused the mother initiate Contravention proceedings which in turn caused her to accrue further legal costs of $4,400. She seeks that sum be recovered through this application.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The father’s application sought sole parental responsibility, that the children live with the father and that time with the mother be supervised. The father was wholly unsuccessful on all grounds sought. The mother’s Counsel refers to parts of the primary decision with respect to the father’s attitude and conduct including his lack of insight, the contradictions in his evidence and the incoherence of his submissions.
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
The mother submits that she made numerous attempts through her solicitors to negotiate matters with the father which he refused to consider. The mother does not provide any detail with respect to these and I do not take this factor into account.
Conclusion
I am satisfied that there are justifying circumstances to depart from the ordinary rule that each party pay their own costs.
With respect to the contravention application I am satisfied that the father should pay the mother’s costs in the amount of $4,400 with respect to that application. I am also satisfied that the father should pay the costs of the attendance on 4 October 2017 in the amount of $1,200, which had been adjourned to that date on the father’s request to enable him to file an application. He failed to file that application and he failed to attend court on that occasion.
I am also satisfied that in the circumstances of this case it is appropriate to order that the husband pay the costs of the trial in the amount sought of $33,500 which I note is significantly below the costs scale. The husband has chosen not to respond to the submissions. The wife is solely responsible for the children’s care in all respects, including financially.
For these reasons I will order that the father pay the costs in the sums sought by the mother which total $41,100.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 15 February 2019
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