Goldman and Goldman

[2020] FamCA 275

FAMILY COURT OF AUSTRALIA

GOLDMAN & GOLDMAN [2020] FamCA 275

FAMILY LAW – COSTS – Application by the father for costs of a parenting and property trial – whether circumstances justify making an order for costs on an indemnity basis or party/party basis – where the conduct of the mother was unreasonable – where the mother failed to comply with orders – where the mother was wholly unsuccessful – where the Court was not satisfied that an order should be made on an indemnity basis – costs application granted in respect of certain court events on a party/party basis

Family Law Act 1975 (Cth) s 117

Goldman & Goldman [2017] FamC A678

Goldman & Goldman [2017] FamC A551

APPLICANT: Mr Goldman

RESPONDENT: Ms Goldman

FILE NUMBER: SYC 3001 of 2015

DATE DELIVERED: 24 April 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 14 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Humphreys Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Brezniarek

SOLICITOR FOR THE RESPONDENT: Raihani Lawyers

Orders

1. That the Respondent mother shall pay to the Applicant father his costs incidental to the following Court events on a party/party basis in a sum agreed or as assessed:

   (a)The trial conducted from 27-28 February; 1-3 and 10 March 2017 calculated from 23 February 2017;

   (b)The Application of the mother to re-open the evidence heard on 23 June 2017.

2. The Application in a Case filed in Sydney on 21 July 2017 and the Response to the Application in a Case filed in Newcastle on 22 August 2017 are both otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Goldman & Goldman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 3001 of 2015

Mr Goldman

Applicant

And

Ms Goldman

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an Application in a Case filed 21 July 2017 for costs of a parenting and property trial conducted in Sydney in February/March 2017. The orders sought are for costs on an indemnity, or if not, party/party basis.

2. The application for costs was filed by Mr Goldman (“the father”) 21 July 2017.

3. The application is opposed by the respondent Ms Goldman (“the mother”).

4. Judgment in this matter was delivered on 23 June 2017 (“June 2017 orders”).

5. There was an Appeal by the father and a Cross-Appeal by the mother, later discontinued.

History of the Costs Application

1. The first affidavit of the father in support of the application for costs was brief, three paragraphs.

2. The father referred to “undue delays” and “unnecessary attendances at Court” as the basis for seeking costs.

3. He asked for time to obtain a transcript to enable provision of details of “delays and offers in this matter”.

4. On 24 August 2017 the Application in a Case (costs) came before this Court. Counsel for the father sought an adjournment of the costs application until the Appeal of the father had been dealt with.

5. Each party had been given a date for settling the Index to the Appeal and Cross-Appeal in September 2017.

6. The Application was adjourned to a date to be advised (pending outcome of Appeal).

7. The Appeal of the father had been heard and determined by April 2018.

8. The father was unsuccessful with his Appeal. He was ordered to pay the costs of the mother on a party/party basis and the costs of the Independent Children’s Lawyer in a fixed sum.

9. The costs application before me was adjourned by consent to 18 June 2018 and on that date further adjourned to 9 July 2018.

10. There was an Application in a Case for enforcement of final orders filed and amended which was listed for 3 October 2018.

11. At that time this costs application was noted by a registrar as outstanding.

12. On 3 October 2018 the enforcement dispute was resolved and orders made accordingly for the property to be sold in accordance with orders.

13. Thereafter the parties were ready to deal with this costs application.

14. On 15 March 2019 the costs application was listed before me. The father had filed voluminous material, an affidavit of 256 closely typed paragraphs with two quarto folders of annexures. The mother had filed an affidavit of reasonable proportions.

15. Directions were made for solicitors for the father to identify relevant matters by producing a one page guide to relevant paragraphs and annexures in the father’s affidavit.

16. The hearing was adjourned to 16 May 2019.

Submissions May 2019

1. On 16 May 2019 material was identified as set out below. The one page guide was provided but was in fact a densely typed document referring to countless paragraphs in the affidavit.

2. It was apparent that the animosity of the trial had not reduced but had been aggravated by subsequent Court events namely the appeals and enforcement proceedings.

3. The Court was left with the time consuming task of sifting through such material.

4. The father presses for the whole of his costs to be met by the mother.

5. The mother asks the Court to dismiss the application of the father and to order costs against him for having brought it.

6. The material of the mother largely contains attempts by her to distance herself from decisions taken during the course of the proceedings and to blame previous solicitors for the outcome of proceedings which has been largely unfavourable to her.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant father

   (a)Application in a Case filed 24/08/2017;

   (b)Affidavit of the father filed 21 July 2017;

   (c)Affidavit of the father filed 31/01/2019;

   (d)Affidavit of the father filed 15/03/2019;

   The Respondent mother

   (e)Response to an Application in a Case filed 22/08/2017;

   (f)Affidavit of the mother filed 13/03/2019;

   (g)Financial Statement of the mother filed 13/03/2019.

The Law

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) states:

   Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) 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.

   (2A)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.

2. The father relies on s 117(2A)(c),(d) and (e) for the circumstances which justify a departure from the principle:

   ·(c) Conduct;

   ·(d) Failure to comply with orders;

   ·(e) Whether a party was wholly unsuccessful.

Analysis

(c) Conduct

1. I do consider that the conduct of the mother during the proceedings should be taken into account. There were multiple unsuccessful applications for adjournment.

2. On 23 February 2017 and again on the first day of trial there were applications by the mother to adjourn the proceedings on the basis of there being an ongoing JIRT investigation into allegations raised about the father’s behaviour with the children.[1]

   [1]Goldman & Goldman [2017] FamCA 678, paras 255-257.

3. The second application did cause a delay in what was always going to be a long and complex trial.

4. On the day judgment was to be delivered there was also an application by the mother to re-open the evidence and to adjourn the delivery of judgment.

5. The evidence was that the mother herself had made inquiries with the Department of Public Prosecutions (“the DPP”) by telephone, she then prepared an affidavit asserting that an officer at the DPP with whom she spoke said:

   JIRT only gave us their report a few days ago, Detective II considers there is enough evidence against [the father] to prosecute. We are in the processing stage.

6. Despite the unlikeliness of any officer within the DPP giving such information on the telephone, the Court was moved to hear oral evidence by the Acting Director of the DPP. There was also an affidavit from the officer who had had a telephone conversation with the mother. The outcome was this:[2]

   [8.]So whereas the mother had asserted that she was told that a detective considered there was enough evidence to prosecute the father, the unchallenged evidence of Ms LL is that the mother, at paragraph 6 of Ms LL’s affidavit, had said that she had spoken to her own solicitor who had told her that she needed to have something in writing from the DPP that there are ‘sufficient charges for [the father] to be prosecuted’.

   [2]Goldman & Goldman [2017] FamCA 551, para 8.

7. I came to the conclusion that the mother had misrepresented the conversation in order to delay the delivery of judgment. This persistent resistance to allow the trial process to go ahead is a matter of conduct which I take into account adversely about the mother.

(d) Comply with orders

1. I did find that the mother had, on occasions, lied during her evidence and had also obstructed the children spending time with their father and ultimately discouraged the relationship between the children and the father entirely.

2. This was a failure to comply with orders.

3. The mother made no concessions with the consequence that a very large number of subpoena were issued to corroborate what the father had to say about such matters.

4. The mother stated that she had not read the material produced in response to subpoena which was voluminous and largely about her own children. She did not look at it at all and could offer no reason why she had made that decision.[3]

   [3]Goldman & Goldman [2017] FamCA 678, paras 286.

5. Had the mother taken the opportunity to read the material she may have much more readily understood that whatever her own view was, the third party evidence tended to support the father’s version of post-separation events.

6. I take that matter into account.

7. The mother also wrongly alleged that the father had failed to make proper disclosure on the financial aspect whilst not making full disclosure herself.[4]

   [4] Affidavit of the father filed 30/01/2019, paras 35-50.

(e) Whether a party was wholly unsuccessful

1. The next matter that I consider relevant is offers made by the father. An offer[5] was made on 1 April 2015 as follows:

   ·That the parties divide the matrimonial assets in a ratio of 60/40 in favour of the mother; and

   ·In respect of the children, that the parties share parental responsibility, live with the mother and spend time with the father as agreed.

   [5] Affidavit of the father filed 30/01/2019, Annexure I

2. There was a further offer on 27 April 2016.

3. The mother’s counter offers were very much more favourable to herself both in respect of money and children.

4. Ultimately, there was a change of residence for the children with sole parental responsibility to the father and a division of matrimonial property 52.5 per cent in favour of the wife and 47.5 per cent in favour of the husband.

5. In her material, the mother submitted that both parties made offers to settle, none of which were accepted. Such a statement ignores the significance of offers. The father’s offers were much more advantageous to the mother than the outcome of the trial.

6. It is a significant issue when both parties argue that they are limited in their resources and cannot afford to litigate.

7. The husband refers to hearings in the Federal Circuit Court on 28 January 2016, 30 March 2016 and 1 August 2016. To the extent that costs are sought in respect of those Court events I declined to determine that issue although conduct and offers prior to trial have generally been taken into account.

8. In her material the mother clearly has not owned her conduct of the case. I consider that there is sufficient justification to depart from the general principle of each party paying their own costs for the reasons set out above.

9. An order is made in favour of the father from 23 February 2017 to the conclusion of the trial and for the short hearing on 23 June 2017.

10. The basis for the costs to be paid should be party/party. Despite the matters raised above I do not accept that the circumstances were so exceptional that an order for indemnity costs should be made.

11. Both the mother and the father made counter allegations of mental illness for the other party which is why a child and family psychiatrist was ordered to prepare a Single Expert Report for trial.

12. It is undoubtedly the conduct of the parties, and most particularly, the mother was difficult and combative. The conduct of the mother around disclosures of abuse was manipulative and obsessive however it is unclear to what extent there was mental illness and personality disorder involved in that conduct. It was more the case of a dysfunctional relationship on display.

13. Accordingly, the costs order will be made for a sum as agreed or assessed.

Conclusion

1. The  parties agreed to stand this costs application over until after the appeals and again until after the enforcement hearing. Almost three years have now passed since the trial.

2. During that period and during the conduct of the appeal and the preparation of the enforcement trial which resulted in a negotiated outcome, ill feeling and poor conduct was re-inflamed leading to the preparation for this costs application as if it were a further trial.

3. Such an outcome has been time consuming for the Court and frustrating for the parties as they waited for the delivery of the judgment.

4. It is regrettable in retrospect that this costs application was not dealt with when it arose naturally after the delivery of orders and reasons in June 2017.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 April 2020.

Associate: 

Date:  24 April 2020