Golla and Rau (No 2)

[2015] FamCA 592

FAMILY COURT OF AUSTRALIA

GOLLA & RAU (NO 2) [2015] FamCA 592

FAMILY LAW – Adjournment of trial.  Non-compliance with directions; costs.

Family Law Act 1975 (Cth)

APPLICANT: Mr Golla

RESPONDENT: Ms Rau

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11592 of 2009

DATE DELIVERED: 9 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goldsworthy

SOLICITOR FOR THE APPLICANT: Gpz Legal Pty

COUNSEL FOR THE RESPONDENT: Ms McCreadie

SOLICITOR FOR THE RESPONDENT: Perry Weston Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

Orders

1. The husband is therefore ordered to pay the sum of $4735 costs thrown away to the wife. 

2. He is further ordered to pay the costs of further attendances and further reports of Dr A if Dr A considers that the further material provided to him needs further work.

3. By 4 pm on 11 September, the husband pay the $4735.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Golla & Rau (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11592 of 2009

Mr Golla

Applicant

And

Ms Rau

Respondent

REASONS FOR JUDGMENT

1. Before me is an application for final orders in a parenting proceeding, which all parties concede cannot start today.  As a consequence of all of that, I now have an application for costs by the respondent wife.  The costs she seeks are those thrown away, totalling $4735, and in respect of the quantum, the husband’s counsel does not dispute that if I am to make an order for costs, the claims would not be inappropriate.

2. The second part of the costs application is that the single expert, Dr A, may need to see the parties again and may, indeed, charge the parties a further amount for his work, and the wife seeks that the husband be responsible for any such bill.

3. In relation to the costs of the wife, the starting point is section 117 of the Family Law Act 1975 (“the Act”), which provides that in proceedings in this Court, each party shall bear their own costs unless there are circumstances that justify a departure from that principle. Before a Court can make an order, even if there are such justifiable circumstances, the Court has to take into account the matters set out in section 117(2A) of the Act. Here, the circumstances seem to me to clearly indicate that an order for costs should be made.

4. This case was listed in January with an extraordinarily long lead-in time, much longer than I would normally make as a result entirely of my absence from the registry over the last few months.  The timetable was very clear, and the husband had the responsibility as the applicant, for the carriage of the filing of the original material.  The husband failed to comply with the timetable but indicated that he was going to do so,  He did not file material until May, by which stage, the wife’s material had already been filed and she had complied with all of the terms of the orders. 

5. The problem was compounded by the fact that Dr A’s report was not prepared and released to the parties and will not now be released until some time towards the end of July.  Whether Dr A now wants to see further material is unknown. 

6. It seems to me that the costs thrown away for all of the items mentioned by counsel for the wife are quite appropriate.  It is quite likely, in my view, that a trial affidavit will have to be redrawn.  Whilst the same material might be used, that doesn’t overcome the fact that a new affidavit will need to be filed and not just an affidavit in reply.  That depends very much upon what material the husband relies upon. 

7. It has not escaped my notice that the husband’s affidavit, even if it was permitted to be relied upon, has significant issues of admissibility and counsel for the wife has indicated objections will be taken upon.  On that basis, I think I can fairly conclude that the wife will need to redraw her trial affidavit, and consequently, all of the other attendances, including the attendances on the Court, have now effectively been thrown away. 

8. On that basis, whilst it is true that everybody had to be here today, the wife’s application was that the Court should proceed on an undefended basis.  As I indicated, that would be a difficult ask, but that was the appropriate application, in my view, bearing in mind the way in which the husband’s preparation for this trial had proceeded. 

9. In fairness to the husband, his explanation is that he relied upon his lawyers, and his lawyer’s own affidavit concedes that he had difficulty because of pressure of work and understanding what had to be done.  But that does not obviate the problem, because the wife still has to face the fact that she is going to be billed, and has been billed, by her lawyers for the work that they have done. 

10. Costs are not a punishment for someone who does not comply with the Rules. They are intended to compensate the party who has had to go through the process and comply with the Court orders. To that extent, it is hard to criticise what the wife is saying or what she has done. On that basis, I am satisfied that there is a justifiable circumstance to depart from the provisions of section 117 of the Act.

11. It is not disputed for the purposes of section 117(2A) of the Act, the husband has the capacity to pay whatever costs order is made. The wife’s position is that she is on Centrelink benefits. All of her money has been spent, and she is now borrowing for the purposes of these proceedings from relatives. That is an appalling situation. It is most unfortunate that money has been taken from the mouths of these children so that this issue can be sorted out.

12. There are other matters as well.  Another question that the Court has to take into account is the issue of the compliance with orders.  My remarks earlier indicate that the husband cannot be said to have complied appropriately.  There are Legal Aid considerations here, but not in respect of the wife, so in that sense, Legal Aid is not a relevant issue.  In my view, this is an appropriate case to make an order in relation to those items thrown away.

13. The second question is the question of Dr A’s report.  No one knows at this stage what Dr A will do.  He may very well have a very clear picture from the wife’s trial affidavit, but I am unsure as to whether or not he will need to do an addendum to any report, if the report, in fact, has been prepared in the first place, in relation to what the wife says about what the husband is asserting. 

14. On that basis, it seems to me that I should leave that issue, but on this basis.  If, indeed, Dr A confirms that he has had to do further work as a result of further material being provided to him, then that is directly a result of the husband’s failure to comply with the orders that I made on 12 January. 

15. What I propose to do is to make an order in respect of the husband paying Dr A’s extra fees, but he can make an application if, indeed, it turns out that Dr A did not have to do any extra work, for that particular part of the order to be set aside on the return date of the trial.  At this stage, I propose to keep the case for myself, probably in very, very late December, if I can, and I will make trial orders accordingly.

    ORDERS DELIVERED

16. I will not make the same order in respect of Dr A, because Dr A may not have prepared a bill by that stage.  But I will make a similar order and expect that that is to be paid to Dr A.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 July 2015.

Associate:

Date:  24 July 2015