Glenville and Glenville (No. 2)

[2008] FamCA 755

FAMILY COURT OF AUSTRALIA

GLENVILLE & GLENVILLE (NO. 2) [2008] FamCA 755

FAMILY COURT – CHILDREN – Costs – Rice & Asplund – Substantive application dismissed at preliminary stage – Costs awarded against applicant

APPLICANT: MR GLENVILLE

RESPONDENT: MS GLENVILLE

FILE NUMBER: NCC 2976 of 2007

DATE DELIVERED: 25 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 25 July 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Winder, Winder Lawyers, Newcastle, NSW

SOLICITOR FOR THE RESPONDENT: Ms Sullivan, Turner Freeman Lawyers, Newcastle, NSW

Orders

1. That the Father pay the Mother's costs as and from and including all costs incurred from 23 May 2008 to today’s date, such costs as agreed and failing agreement as taxed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: NCC2976 of 2007

MR GLENVILLE

Applicant

And

MS GLENVILLE

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. I have received the further written submissions provided on behalf of each of the parties and I have read and considered those submissions, in addition to the other matters referred to on prior occasions, and for the purposes of this judgment I refer to the transcript of the proceedings on 23 May 2008 and the matters set out therein and my judgment of 8 July 2008, which are relevant to these deliberations.

2. On 23 May 2008, the matter was before me as the first day of the proceedings and each of the parties and their legal representatives were given the opportunity to summarise their cases and identify the issues and the family consultant's report was also read into the record and the family consultant provided evidence.

3. What emerged during the course of that first day of the hearing was the fact that the mother indicated an intention to argue that the Court should consider a preliminary issue of whether the father had advanced a sufficient case to justify a rehearing, as it were, of matters relating to the welfare and placement of the children.  I should indicate, as I have done in earlier judgments, that this matter, in that sense, had its origins in consent orders made on 12 September 2005, which resulted in the two children in question being placed in the care of their mother.

4. On 8 July 2008, I dismissed the father's application and in so doing upheld the grounds argued on behalf of the mother to the effect that the father had failed to disclose a sufficient case to justify a reopening of the matter and a reconsideration of changing the children's care arrangements.  I do not propose to again reiterate the reasons set out, which are clear enough from the record of the appearance on 8 July.

5. In terms of this application for costs which was made at the conclusion of the proceedings on 8 July, I need simply record that, in the May proceedings, the father and his legal representatives were, as it were, clearly put on notice about the perceived difficulties in their case and the process highlighted matters where the father might experience difficulties on the so-called Rice v Asplund threshold question.

6. The matter was adjourned to 8 July and the father was given the opportunity to both reconsider his position in light of the developments on day  one and, importantly, the opportunity to argue his case should he wish to persist with it.

7. The father did proceed with his application.  On 8 July, his application was dismissed.  On that occasion, I expressed the view, which I maintain is an appropriate starting point in cases of this type, and that is to, firstly, acknowledge that, ordinarily, costs orders are not made against parties in children's matters and, ordinarily, each party bears their own costs, and those sentiments are a reflection of the provisions of the Family Law Act relating to costs. At the same time, as I observed on that occasion, I take the view that that broad approach, statutorily highlighted, takes on a different complexion if and when a party brings supplementary proceedings. Section 81 of the Family Law Act identifies the desirability for parties and their children of finality in litigation and the undesirability of parties and their children facing repeated litigation about the same issues. 

8. In that context, it needs to be observed that, of course, circumstances of parties change and there are many exigencies of life and, again, it is not the expectation of the Court, and cannot be in the interests of the parties, that any change can justify a reopening of a case, and that is why authorities such as Rice v Asplund effectively cast an onus upon a party wishing to relitigate, the responsibility of demonstrating a significant change in circumstances, and I found that the father failed that test.

9. I therefore take the view that it is appropriate that the Court adopt a more robust approach to the issue of costs in any supplementary applications and, in this case, I indicated that, given the fact that there had been proceedings finally determined in 2005, given that in this case there was a family report which should have been of assistance to the parties, given that under the new less adversarial processes there is now a first day of hearing which gives everyone the opportunity to have a better understanding of the nature of the respective cases and, in that sense, the value of proceeding and the prospects of success, that, in this matter, the father was effectively given two previous opportunities and he decided to persist, which is, of course, his absolute right.  However, his decision to do so has exposed each of the parties to substantial costs and, as it has turned out, the whole exercise has been found by this Court to be without merit.

10. I am informed through the most recent submissions that, as perhaps the starkest illustration of the dangers of this type of exercise if it is without merit, is demonstrated by the fact that the mother now has to sell her house, the house that accommodates herself and her two children, to meet her legal fees.  That is indeed a heavy price to pay to contest proceedings that have been found to be without merit.  In my view, it is incumbent upon the Court to properly consider whether or not the wife should be saved from at least some of the consequences of this failed exercise.

11. The material discloses that the father is on a disability pension.  Although he owns his own home, he fully supports one of the children of the marriage.  The material also discloses that the father has failed to meet his child support obligations, has not paid any child support for many years and is indebted to the Department substantially.

12. In my view, the father's financial circumstances are obviously a relevant consideration, both in terms of whether or not an order should be made and, perhaps more significantly for the mother, whether they can ever be enforced.  I do take those matters into account, but I also take into account the mother's modest financial circumstances which have now been placed at peril. 

13. Having particular regard to the proceedings on 28 May, the decision and reasons of 8 July and the nature of these supplementary proceedings, I take the view that it is, in all the circumstances, appropriate to make an order for costs, notwithstanding the father's own precarious financial position.  The decision was his, he persisted with it, and on these rehearings I take the view that it is appropriate that he bear primary responsibility for the costs incurred.

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

14. I should indicate for the record that that information would not change my decision on the question of costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: