Gorley & Gorley (No 2)
[2023] FedCFamC1F 770
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gorley & Gorley (No 2) [2023] FedCFamC1F 770
File number: SYC 8819 of 2022 Judgment of: MCGUIRE J Date of judgment: 7 September 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Costs – Review Application – Consideration of s 117(2A) – No order for costs Legislation: Family Law Act (1975) (Cth) s 117 Cases Cited: Gorley & Gorley [2023] FedCFamC1F 523 Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 22 August 2023 Place: Melbourne Solicitor for the Applicant: Barkus Doolan Winning Solicitor for the Respondent: Matthews Folbigg Pty Ltd ORDERS
SYC 8819 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GORLEY
Applicant
AND: MS GORLEY
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
7 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding dated 26 July 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gorley & Gorley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATION
The father in an Application in a Proceeding filed 26 July 2023, and supported by his affidavit of the same date, applies for costs in respect of a Review application brought by the wife and determined by my Reasons and Orders of 29 June 2023. The application encompasses the costs of a Stay application brought by the mother unsuccessfully before a Senior Judicial Registrar.
The father quantifies the costs application in a quantum of $10,670 in respect of the Review application and a further $7,040 for the Stay application described by his counsel as “party/party basis”. Alternatively, he seeks orders according to scale on a quantum of $4,919.41 on the Review application and $3,142 on the Stay application.
The application is opposed by the mother.
There are further substantive parenting proceedings between the parties in respect of three children.
On 31 March 2023 the Senior Judicial Registrar (“SJR”) made orders that the father spend time with the children two hours per week to be professionally supervised on an interim basis after a defended interim hearing.
The Review application was heard before me on 7 June 2023 and in my judgment handed down on 29 June 2023 the Review application was effectively dismissed leaving the interim orders of the SJR on foot.
RELEVANT LAW
Matters of costs are provided for at section 117 of the Family Law Act 1975 (Cth) (“the Act”) where at subsection (1) there is a general provision that each party to a proceeding shall bear his or her own costs. That general provision is, however, subject to a discretion enlivened at section 117(2) where the Court can make an award for costs if there are ‘justifying circumstances’. It is well-established that the term ‘justifying circumstances’ is not to be read as synonymous with extraordinary circumstances. In considering whether there be an award for costs the Court is mandated to consider the factors set out at section 117(2A) of the Act but where the Court retains a broad discretion in respect of costs.
There are also ongoing property proceedings between the parties. Counsel for the father indicated a willingness to await the execution or payment of any award for costs until such property matters are resolved. In those circumstances, and where each of the parties has filed a sworn statement of financial circumstances, it is clear that currently the father is in a superior financial position than the mother who is in receipt of government benefits and child support payments as her primary means of support but where such situation is mitigated by the concession made through the father's Counsel. In any event, it is well-established that impecuniosity is not a bar to an award for costs.
Neither party is legally aided.
There are no matters before me which attract the consideration of the conduct of either of the parties in respect of the proceedings as indicative for an award for costs.
Similarly, this is not a matter where the failure of a party to comply with previous court orders is relevant to the consideration of costs.
This is a matter where it is understandably argued that the mother was wholly unsuccessful in the application before me with her Application for Review of the SJR’s determination being dismissed. Importantly, however, a parent should not be dissuaded from arguing a case in respect of his or her children by reason of the spectre of costs hanging over that parent. It follows, that the consideration here should include an examination of whether or not the argument brought before the Court was unmeritorious and, in my view, not simply and baldly a consideration of “wholly unsuccessful”.
I accept submissions of the Counsel for the father that the mother raised no new issues and adduced no new evidence in the Review application before me that were brought before the SJR. As such, I take the view that given the nature of the Review applications being conducted as a hearing de novo then litigants might well be dissuaded from understanding the Review system to provide them with nothing more than a ‘second grab’ and that costs ramifications may well be a tool towards such dissuasion.
Whether or not the mother's argument was unmeritorious requires me to consider my reasons on the Review application. The mother argued that two children had made disclosures consistent with inappropriate sexual conduct on them by their father. The allegations were not isolated but occurred over a lengthy period of time. The mother says that the verbal allegations were supported by illustrations and that statements had been made to adults other than the mother herself and/or witnessed by adults other than the mother herself. The mother particularised the statements and the dates of those statements in some detail. The mother brought an affidavit from the maternal grandmother corroborating the mother's account and concerns. The mother emphasised that the disclosures of one child to a psychologist had brought about mandatory reporting and closer intervention.
In essence, the mother argued that whilst supervised contact could provide physical protection for the children, it did not protect them from psychological or emotional harm should the father have been the perpetrator of sexual abuse as alleged. Such an argument is not uncommon in these courts and frequently one requiring expert opinion.
The mother had the support of the Independent Children’s Lawyer in her application that there be no time for the children with the father in the interim and pending a full forensic expert report. Indeed, the mother had support from her position from a psychologist who deposed to possible emotional and behavioural dysregulation for the children if brought into contact with a perpetrator of sexual abuse.
In the context of the prima facie merits of the mother’s case brought before me on Review it is not necessary for me to go into detail as to the father’s argument save and except to indicate obviously that his argument was accepted, on the balance of probabilities, over and above that of the mother and the ICL in respect of the children's best interests.
Importantly and in respect of the question before me, at [64] of my reasons appears the following:[1]
64I accept that, prima facie, the statements made by Y and X could reasonably be interpreted by the maternal grandmother and the mother as disclosures of inappropriate sexual conduct or touching by the father.
[1] Gorley & Gorley [2023] FedCFamC1F 523.
In these circumstances, I am not persuaded that the mother's application was unmeritorious but rather was brought with a substantial factual basis and corroborating evidence.
The father's Counsel asserts, not challenged, that between the determination of the SJR and the Review hearing before me the father's Counsel made an open ‘proposal’ inviting the mother to withdraw her application. Again, however, the distinction between parenting and property matters coming before these courts in respect of costs is, in my view, a crucial one and again where a parent should not be dissuaded by the spectre of costs by properly arguing matters of concern in respect of children.
CONCLUSION
Taking into account all of the matters under section 117(2A) of the Act and with some emphasis on the fact that the mother brought an arguable prima facie case for my determination then I am not persuaded that this is a matter that should exercise my discretion in favour of an award for costs. The application will be dismissed.
If it be required that I deal separately with the costs of the Stay application then I am of the view that my findings above in respect of the merits of the mother’s Review application should extend similarly to her application for a Stay, which whilst unsuccessful, was also not unmeritorious and hence costs should not flow.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 7 September 2023
0