Gomez and Easton (No 2)

[2017] FamCA 299

FAMILY COURT OF AUSTRALIA

GOMEZ & EASTON (NO 2) [2017] FamCA 299

FAMILY LAW – COSTS – Where the parties filed written submissions – Where the father submits that the mother was wholly unsuccessful – Where the father submits the conduct of the mother warrants an order for costs – Where the application for costs is dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Rule 19.18

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Kohan & Kohan (1993) FLC 92-340
Lenova and Lenova (Costs ) [2011] FamCAFC 141
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT: Mr Gomez

RESPONDENT: Ms Easton

FILE NUMBER: BRC 5038 of 2015

DATE DELIVERED: 12 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: Written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Bunning

SOLICITOR FOR THE APPLICANT: Logan Legal Centre

FOR THE RESPONDENT: Self-represented

Orders

1. The Application in a Case filed 27 February 2017 seeking costs of and incidental to the Initiating Application filed 4 June 2015 is 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 Gomez & Easton (No 2) 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 BRISBANE

FILE NUMBER: BRC 5038 of 2015

Mr Gomez

Applicant

And

Ms Easton

Respondent

REASONS FOR JUDGMENT

1. On 27 January 2017 I delivered judgment in a parenting dispute between Mr Gomez (“the father”) and his former wife, Ms Easton (“the mother”) in relation to the parties’ two young children.  The father was wholly successful in his application and the children now live with him and spend supervised time with the mother.

2. The father now seeks an order that the mother pay his costs on an indemnity basis either fixed at $87,946.87 or taxed. The mother opposes any order for costs.

How costs applications are determined

1. In this jurisdiction parties are generally required to bear their own costs.[1] However, where justifying circumstances exist, s 117(2) of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to make such order for costs as the Court considers just.

   [1] Section 117(1) Family Law Act 1975 (Cth)

2. In the exercise of that discretion regard must be had to the factors set out in s 117(2A) of the Act, so far as they are relevant.

3. Those factors are as follows:

   (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.

4. No one factor has more weight than any other nor is it necessary for more than one factor to be present.[2]

   [2] see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 at 130

5. When considering what specific order to make, Rule 19.18 of the Family Law Rules 2004 (Cth) (“the Rules”) empowers the Court to make an order:

   a)of a specific amount;

   b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

   c)to be calculated in accordance with the method stated in the order; or

   d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

6. In considering what specific order should be made the same Rule provides that the Court may consider any of the following factors:

   a)the importance, complexity or difficulty of the issues;

   b)the reasonableness of each party's behaviour in the case;

   c)the rates ordinarily payable to lawyers in comparable cases;

   d)whether a lawyer's conduct has been improper or unreasonable;

   e)the time properly spent on the case, or in complying with pre-action procedures; and

   f)expenses properly paid or payable.

7. A court will not lightly make an order for costs to be paid on an indemnity basis. There would need to be some circumstance of an exceptional nature to justify that course.[3]

   [3] Kohan & Kohan (1993) FLC 92-340; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; Yunghanns v Yunghanns (2000) FLC 93-029

Father’s submissions

1. In his Application in a Case filed 27 February 2017 the father sought that the mother pay his costs of and incidental to the Initiating Application filed 4 June 2015 fixed in the sum of $77,463.41.  In an Affidavit filed by the father in support of his application on 20 April 2017 the father amended the orders sought by him to be the payment of costs by the mother in the amount of $87,946.87 on an indemnity basis.  The change in quantum is due to the father receiving an invoice from his previous solicitor detailing the outstanding legal fees owed to them.

2. The primary submission by the father is that the mother’s multiple and serious allegations against him, which he submits were without any basis of fact and were never resiled from, warrant a costs order against her in that the “proceedings were necessitated entirely … by the allegations that the Mother made” and her conduct throughout the proceedings justify the Court exercising its discretion to make an order for costs against her.

3. Reference is made to Colgate-Palmolive Co v Cussons Pty Ltd[4] where Sheppard J held that circumstances that may warrant the making an indemnity costs judgment include making of allegations which ought never have been made and evidence of misconduct which has caused loss of time.  The father submits that by making and maintaining serious allegations against him that were ultimately found to be groundless, the mother’s conduct warrants her paying his costs on an indemnity basis. 

   [4] (1993) 118 ALR 248

4. In addressing the s 117(2) factors, the father submits as follows:

   a)In relation to s 117(2)(a) the father earns $50,000 and has the caring responsibilities for the two children while the mother receives a modest weekly insurance compensation payment and has no other income. Neither party is in a strong financial position but the father submits that impecuniosity is “no bar to an Order to be made for Costs”.

   b)In relation to s 117(2)(b) neither party was in receipt of a grant Legal Aid though the father did apply for such but was unsuccessful.

   c)In relation to s 117(2)(c) the primary focus of the father’s submissions is that the mother’s conduct by her numerous allegations against him over the course of the proceedings, change in position on the morning of trial without any valid explanation and clear maintenance of her belief that he presents an unacceptable risk to the children resulted in the protracted proceedings and caused the father to incur significant legal fees.  The father also submits that the mother’s material was voluminous and of little or no relevance to the issues to be determined, which again resulted in the father incurring significant legal fees in that counsel was forced to file objections to much of the mother’s evidence

   d)Section 117(2)(d) has no relevance here as neither party failed to comply with orders.

   e)In relation to s 117(2)(e) the father submits that he was wholly successful.

   f)In relation to s 117(2)(f), no offers were made in writing although it is acknowledged that the wife made an offer two days before the commencement of the trial for him to have alternate weekend unsupervised time.

Mother’s submissions

1. The mother submits that she does not have the financial capacity to pay the legal costs as sought by the father and that an order requiring her to do so would result in financial hardship and potentially bankruptcy. 

2. The mother argues that her allegations against the father were not made maliciously and that up to the trial the experts supported the children remaining in her primary care.

Discussion

1. Neither party is in a strong financial position but the mother’s impecuniosity alone would not defeat a costs order.[5]

   [5]Lenova and Lenova (Costs ) [2011] FamCAFC 141

2. In my reasons for judgment of 27 January 2017 I found that the allegations made by the mother that the father had sexually abused the children were “groundless” and that there is “no evidence at all” to support such a finding as was sought by the mother.  I further found that there was no evidence of family violence or of the father breaking into the mother’s home or him stalking her in any way.  The mother’s allegations that the father posed a risk to the children by his excessive alcohol consumption were also dismissed.  I found that the mother held irrational beliefs about the father and his capacity to parent the children and that such beliefs amounted to her posing an unacceptable risk of emotional and psychological harm to the children were they to continue living with her.

3. However, I also accepted Dr F’s opinion that the mother had developed some sort of psychotic illness with respect to her beliefs that the father presented an unacceptable risk of harm to the children.  I found that the mother did not have “any current capacity to doubt her own beliefs about the father…”.

4. While it is most unfortunate that the father has been put to the expense of these proceedings I do not regard the circumstances of this case to warrant a costs order against the mother.

5. Although I am unable to draw any conclusions about the steps taken by the mother’s solicitors to properly and appropriately challenge the mother about her evidence, my decision should not be taken to absolve solicitors in other cases from their professional responsibility in ensuring that evidence presented is capable of proving the issue in dispute and that they bring to the attention of their clients the possible consequences of proceeding with litigation that has little or no prospect of succeeding.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 12 May 2017.

Associate: 

Date:  12 May 2017