Graham and Law Firm A and Ors

[2020] FCWA 155

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GRAHAM and LAW FIRM A & ORS [2020] FCWA 155

CORAM: TYSON J

HEARD: 27 JULY 2020

DELIVERED : 17 SEPTEMBER 2020

FILE NO/S: PTW 306 of 2018

BETWEEN: MR GRAHAM

Applicant

AND

LAW FIRM A

First Respondent

AND

LAW FIRM B

Second Respondent

AND

LEGAL AID WA

Third Respondent

Catchwords:

COSTS – Where the father seeks costs in relation to parenting proceedings which were resolved by consent – Claim for costs against Legal Aid and in the alternative, firms of solicitors – Where an Independent Children’s Lawyer was appointed – Where the mother was legally represented pursuant to a grant of Legal Aid – Where the father was legally represented at times and a self-represented litigant at other times – Where the father seeks amounts which are not legal costs – Where there is no evidence of misconduct by the ICL or solicitors for the mother as alleged by the father – Where the circumstances do not warrant a departure from the general principle – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Legal Aid Commission Act 1976 (WA)
Legal Professional Act 2008 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
First Respondent	:	Mr Beckerling
Second Respondent	:	Ms De Maio
Third Respondent	:	Ms Hossen

Solicitors:

Applicant	:	Self-Represented Litigant
First Respondent	:	Law Firm A
Second Respondent	:	Law Firm B
Third Respondent	:	Legal Aid WA

Case(s) referred to in decision(s):

Addison & Leahy [2008] FamCA248

Anison & Anison (2019) FLC 93-908

B & B [2015] FCWA 65

Collins & Collins (1985) FLC 91-603

Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 FLR 123

Greedy & Greedy (1982) FLC 91-250

Hawkins & Roe (2012) 47 Fam LR 526

I & I (No 2) (1995) FLC 92-625

JJT & Ors; ex parte Victoria Legal Aid (1998) FLC 92-812

Knight & Anor v FP Special Assets Ltd & Ors (1992) 174 CLR 178

Kohan and Kohan (1993) FLC 92-340

Lenova & Lenova (Costs) [2011] FamCAFC 141

Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155

Luadaka & Luadaka (1998) FLC 92-830

M v D (1995) FLC 92-584

McAlpin and McAlpin (1993) FLC 92-411

Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation (No 2) [2000] SASC 63

Pagliarella and Pagliarella (No 3) (1994) FLC 92-460

Richmond Pharmacology Ltd v Chester Overseas Ltd and others [2014] EWHC 3418

Worth & Worth (No 2) [2019] FamCAFC 126

Wrensted & Eades (2016) FLC 93-697

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Graham & Law Firm A has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1 The father [Mr Graham] and the mother [Ms Lestari] are parents of [D], who is now three years of age. The parents were unable to agree on the arrangements which were in D’s best interests. The mother and the father each made a number of allegations asserting that D was at risk of harm. As a consequence of those allegations, an Independent Children’s Lawyer was appointed for D.

2 The proceedings were listed for trial in January 2020, with an estimated hearing time of five days. To the parties’ credit, final orders were made by consent on 11 December 2019. The Consent Orders provided that the parents have equal shared parental responsibility and D live in a shared care arrangement.[1]

[1] Final Orders dated 11 December 2019.

3 The issue now for determination is the father’s Form 2 Application filed 30 December 2019 and amended on 28 April 2020, in which he seeks the Legal Aid Commission of Western Australia pay his costs, fixed in the sum of $103,731 or such other sum as determined by the Court. In the alternative, he seeks that [Law Firm A] pay his costs fixed at $62,238 and [Law Firm B] pay his costs fixed at $41,492, or such other sums as determined by the Court.

4 Legal Aid, Law Firm A and Law Firm B oppose the application and seek it be dismissed. The mother did not participate in the proceedings or seek to be heard.

5 These matters are to be determined under the Family Law Act 1975 (Cth). The following require determination:

•Do the circumstances warrant a costs order against a non-party?;

•Are there are circumstances which justify any order as to costs?; and

•If so, what order is just?

WHAT IS THE EVIDENCE RELIED UPON?

6 The father relies his affidavits filed 30 December 2019 and 28 April 2020. [Ms M] relies on her affidavit filed 12 June 2020. [Ms P] relies on her affidavit filed 2 June 2020.

7 I have also had the benefit of written submissions filed by the father on 18 June 2020, Ms P on 5 June 2020, Ms M on 15 June 2020 and on behalf of Legal Aid filed 12 June 2020. They each had an opportunity to make oral submissions on 27 July 2020.

8 The father suggested that Legal Aid should not be heard. Legal Aid were not a party to the proceedings. They were erroneously referred to as the Third Respondent in some orders. Legal Aid have been served. Legal Aid have a right to be heard, and indeed, it is a requirement that they be heard, when orders are sought against them.[2]

BACKGROUND FACTS

[2] Legal Aid Commission Act 1976 (WA) s 45(2).

9 The father was born [in] 1972 in [Country A]. He is 47 years of age. The mother was born [in] 1984 in [Country B]. She is 36 years of age.

10 The parties met in 2016, while the father was in Australia and the mother was in [Country B]. In late 2016 the mother moved to Australia and the parties commenced living together. [In] 2017 they married.

11 D was born [in mid] 2017.

12 In [late] 2017 the father withdrew sponsorship of the mother’s visa, advising the Australian immigration authorities they were no longer in a relationship.

13 [The following month] the mother was granted a visa, to enable her to remain in Australia.

14 [In] November 2017 the parties separated, under the one roof. In December 2017 the mother left the family home. D then lived with the mother.

15 On 10 January 2018 the father commenced child-related proceedings, seeking urgent orders.

16 On 15 January 2018 orders were made requesting Legal Aid appoint an ICL. Ms M from Law Firm B was appointed as the ICL and continued in that role until April 2019, when Mrs O from Legal Aid was appointed as the ICL.

17 The mother was legally represented throughout the proceedings by Ms P, pursuant to a grant of legal aid. Ms P was initially working at Law Firm C and subsequently, at Law Firm A.

18 The father was legally represented by Law Firm D[3] and Law Firm E.[4] He was otherwise self-represented in the proceedings.

[3] From around January 2018 to March 2018.

[4] From around May 2018 to May 2019.

19 In January 2018 interim orders were made on a without admission basis for D to spend supervised time with the father.

20 On 14 March 2018 the parties, their solicitors and the ICL attended a Case Assessment Conference. They agreed to increase D’s time with his father from two hours to six hours each Saturday. The Conference note recorded the father agreed to stop sending emails to the refuge where the mother was living, together with any individual or department involved in the decision-making concerning the mother’s visa. The parties agreed to attend dispute resolution at Legal Aid.

21 On 11 April 2018 interim orders were made by consent for D’s time with his father to extend from 10am until 4pm each Saturday, the father was injuncted from initiating communication with the mother’s refuge, migration agent, the Department of Immigration or any other party about the mother’s residency status, visa application or her mental health, without the mother’s prior written consent. Both parties were restrained by injunction from initiating contact with the other parent’s medical practitioner without consent and the father was restrained from consuming alcohol to excess prior to his time with D, or any alcohol during that time. The parties agreed to attend a Dispute Resolution Conference and the proceedings were adjourned until after the parties had done so. The Minute was certified by the father’s then solicitors, Law Firm D.

22 The father’s solicitor then ceased to act.

23 In May 2018 the ICL advised the parties she was cancelling the proposed Legal Aid Dispute Resolution Conference, on the basis she had obtained aid for the appointment of a Single Expert Witness.

24 On 6 June 2018 further interim orders were made by consent extending the time D was to spend with his father.

25 On 18 June 2018 the father filed a Notice of Abuse in which he alleged D had been subjected to serious psychological harm by the mother denying him a relationship with his father, for financial gain. He also accused the mother of injuring D. He asserted the mother perpetrated psychological and physical abuse and exposed D to verbal abuse.

26 On 3 September 2018 the Department of Communities responded. When D was admitted to Hospital, no concerns were noted by hospital staff in relation to D’s admission or presentation. The Department advised, after a preliminary assessment, no further action was required.

27 On 26 July 2018 further interim orders were made by consent. On the application of the ICL, the father was restrained by an injunction from corresponding with the ICL and the mother’s solicitor more than once each week.

28 Throughout the proceedings, subpoena were issued for the production of documents.

29 On 11 October 2018 orders were made by consent appointing Dr [F] as the Single Expert Witness. Dr F filed a report on 14 February 2019.

30 Dr F met with each parent and D. He also conducted home visits. He set out the material he was provided by the ICL, which included an email from the father of 361 pages, including attachments. Dr F observed much of the father’s evidence, which he claimed proved what he was saying, were his own emails, which set out his version of events. Dr F wrote, that “ultimately it is the Court which tests the evidence, and essentially for the purposes of my assessment my main focus is on my direct observations and interviews of the parties”.

31 Dr F spoke with [Ms S], a psychologist whom had been engaged by the parties. Ms S told Dr F the mother came from a different culture and she was struggling after D’s birth. She said the father lacked empathy and was critical of the mother for not doing things his way. Ms S voiced concern that the father lacked emotion and would send reams of emails, to back up his position. Ms S ultimately asked him to stop doing so.

32 Dr F observed the mother was then limiting the father’s time with D, while the father was seeking sole custody of D.

33 The salient aspects of Dr F’ report are summarised below:

•He described D as a cute, super boisterous, fearless, energetic and likeable child. He observed D to be “full-on” in the care of each parent and predicted D was likely to have accidents in the future, given his nature. He did not consider D had been directly affected by his parents’ dispute, but he was spending limited time with the father, due to the high levels of conflict.

•He considered D was happy and comfortable with his mother and also enjoyed time with his father. Dr F considered the father’s proposal to reverse D’s care arrangements was a “big ask” for D and observed children removed from an attachment figure suffer attachment disturbances, which may manifest in behavioural, psychological and emotional long-term harm.

•He recorded the allegations of abuse made by each parent. The father claimed he had been the victim of extreme psychological violence, the mother had deliberately burnt D to build a false case against him and he was the victim of physical abuse by the mother. The mother claimed the father behaved in a controlling and coercive manner towards her during the relationship, which was continuing through him corresponding with numerous agencies, including in an intimidating and threatening manner. Dr F considered the parties’ cultural differences, personalities and differing expectations compounded the difficulties within their relationship.

•He did not find evidence to support the father’s allegation that D had been deliberately injured in his mother’s care. The father alleged the mother had sexually abused D by letting him suckle on her breast. Dr F did not consider that was abusive.

•Since separation, the father’s approach towards the mother had been punitive. In response, the mother had been rigid in allowing the father time with D, which the father perceived as a form of abuse.

•The mother’s psychological testing did not reveal any major mental health concerns. The father’s psychological testing was invalid. The father’s emails indicated he perceived himself as the extreme victim of maltreatment. The father used threats when he did not achieve what he wanted, and blamed others for his actions.

•Dr F predicted the dynamics of the case meant it would remain “highly acrimonious” and likely to result in long-term, entrenched conflict, including ongoing proceedings for the next decade or so, “unless either [Ms Lestari] gives [Mr Graham] what he wants, or the Court finds in [Mr Graham’s] favour, or provides a No Contact Order. There is no compromise position in the dynamics in this type of case. Therefore, I am strongly of the view for an Expedited Trial to hear the evidence, and either find facts to support [Mr Graham’s] position or put in place hard, enforceable Orders”.

•He recommended the mother attend therapy and interventions around child safety and managing children, and the father complete Anglicare’s Changing Tracks Program. Dr F did not consider the father was likely to change his behaviour, because he did not perceive any problems in his conduct.

34 Throughout the proceedings, the father raised a number of complaints with Legal Aid:

(a)In February 2018 he asserted the mother was not eligible for Legal Aid. Legal Aid informed the father they would conduct enquiries, but would be unable to disclose the outcome due to confidentiality provisions contained in s 64 of the Legal Aid Commission Act 1976 (WA) (“Legal Aid Commission Act”). Following investigations, Legal Aid concluded the mother was eligible for a grant of aid.

(b)In May 2018 he complained about the conduct of Ms P on behalf of the mother. Legal Aid directed the father to the Legal Practice Complaints Committee.

(c)In January 2019 he made a complaint about the ICL and requested she be removed. Legal Aid investigated the complaint, found the ICL had acted appropriately and refused his request. Legal Aid referred the father to the Family Court and again, to the Legal Practice Complaints Committee.

(d)In March 2019 he made another complaint about the ICL, alleging she had failed to provide three documents to the Single Expert Witness. Legal Aid obtained a response from Ms M and took no further action. They again referred the father to the Court and the Legal Practice Complaints Committee.

35 In March 2019 orders were made giving the father permission to provide to Dr F three supplementary documents. Dr F filed an updating report, having considered the additional material provided by the father. Dr F commented the material did not alter his opinions and recommendations. He otherwise clarified his misunderstanding of the comment made by the father in terms of the amount paid to support D.

36 In May 2019 further orders were made by consent extending D’s time with his father to include overnight visits.

37 The parties attended a Readiness Hearing on 24 May 2019. The case was then listed into a call over, where it was allocated trial dates.

THE LAW

38 The question of costs is governed by s 117 of the Act. Subsection 117(1) of the Act provides that, subject to s 117(2) each party to the proceedings shall bear his or her own costs.

39 Subsection 117(2) provides that if the Court is of the opinion there are circumstances that justify doing so, the Court may, subject to s 117(2A) make such orders as to costs as it considers just. Subsection 117(2A) provides as follows:

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.

40 The discretion to award costs is a “broad” one, and the various enumerated factors are not to be read in any restrictive way.[5] Any one of the factors may be the sole foundation for an order for costs.[6] Nevertheless, the matters enumerated “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs.”[7] Impecuniosity is not of itself a bar to a costs order.[8]

[5] Collins & Collins (1985) FLC 91-603.

[6] Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 FLR 123.

[7] I & I (No 2) (1995) FLC 92-625 at 82,277.

[8] Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].

41 It is unnecessary to spell out detailed reasons for costs decisions. An exercise of discretion to order costs will be upheld if it appears to the appellate court there are reasons upon which the trial judge or magistrate could rely.[9]

[9] B & B [2015] FCWA 65; Greedy & Greedy (1982) FLC 91-250; Luadaka & Luadaka (1998) FLC 92-830.

42 The settled practice is that orders for costs are generally made on a “party and party” basis being calculated in accordance with the scale of costs contained in the Family Law Rules2004 (Cth).

Indemnity Costs

43 Indemnity costs orders are “a very great departure from the normal standard”.[10]

[10] Kohan and Kohan (1993) FLC 92-340, at 79,611.

44 Recently, the Full Court have set out the relevant principles as to the basis on which indemnity costs should be ordered in Worth & Worth (No 2) [2019] FamCAFC 126[11], as follows:

[11] At [9].

The authorities are clear, that for the usual basis to be departed from, exceptional circumstances need to be demonstrated (see, e.g. Limousin & Limousin (Costs) (2007) 38 Fam LR 478). The categories of such circumstances are not closed (Yunghanns & Yunghanns (2000) FLC 93-029), but some examples are provided in the oft-quoted decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate-Palmolive Co”), and usefully, Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84,660, drew from his Honour’s decision the following:

(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.

(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.

(c) Evidence of particular misconduct causing loss of time to the court and to other parties.

(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.

(e) An imprudent refusal of an offer to compromise.

Costs against a non-party

45 The Court has the power to make an order against a third party, in certain circumstances.[12] Those circumstances include, but are not limited to, where:

•The party to the litigation is insolvent or a ‘man of straw’;

•Where the non-party has played an active part in the conduct of the litigation;

•Where the non-party, or some person on whose behalf s/he is acting or by whom s/he has been appointed, has an interest in the subject of the litigation;[13]or

•Where that person plays an active part in the litigation and has an interest in the subject of the litigation.[14]

[12] Knight & Anor v FP Special Assets Ltd & Ors (1992) 174 CLR 178 and Re JJT & Ors; ex parte Victoria Legal Aid (1998) FLC 92-812 and s 117(2) of the Act.

[13] Knight supra.

[14] Pagliarella and Pagliarella (No 3) (1994) FLC 92-460 per Hannon J at 80,756.

46 An order against a non-party is only to be made “if the interests of justice require that it be made”.[15]

[15] Knight supra per Mason CJ and Deane J at p 193, Gaudron J agreed at p 205.

47 The Full Court in M v D (1995) FLC 92-584 found there were three pre-requisites to make an order for costs against a non-party:

(a)A sufficient connection between the non-party and the proceedings to provide a proper basis upon which to award costs against it or, that the non-party must be the “real party” to, or the real instigator of, the litigation;

(b)There must be a causal connection between the non-party and the incurring of costs; and

(c)The interests of justice and reason demand that such an order be made.

48 The jurisdiction is unlimited. It remains a matter within the discretion of the Court, with such discretion to be exercised sparingly[16] and with great caution.[17] The Full Court of the Federal Court observed:

…unreasonable conduct must be more than acting on behalf of a client who has little or no prospect of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.[18]

[16] McAlpin and McAlpin (1993) FLC 92-411.

[17] Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155.

[18] Levick supra at [44].

49 The Legal Aid Commission, as a non-party, may be ordered to pay costs, provided the conditions contained in s 45 of the Legal Aid Commission Act are met. Section 45 provides:

(1)Where a court or tribunal, having finally decided a proceeding in favour of an unassisted person, considers that an order for costs should be made against a party who is an assisted person and determines his liability in that regard, the court or tribunal may order that the whole or any part of the costs of the unassisted person be paid to him by the Commission; but such an order shall not be made, —

a. unless the proceeding is such that an order for costs would be made in favour of the unassisted person, if this section were not enacted; and

b. in respect of costs incurred by the unassisted person at first instance, unless the proceeding was initiated by the assisted person at first instance; and

c. in any event, unless the court or tribunal is satisfied that —

i. in all the circumstances of the case, it is just and equitable that the order should be made; and

ii. the unassisted person would suffer undue financial hardship if the order were not made.

Costs against a lawyer

50 Rule 19.10 of the Rules provides that a costs order may be made against a lawyer “for costs thrown away during a case” for a reason, including a lawyer’s failure to comply with the Rules or an order, a failure to comply with pre-action procedures, a lawyer’s improper or unreasonable conduct and undue delay or default by the lawyer.[19]

[19] Rule 19.10(1).

51 The Court may make an order, including that a lawyer not charge for work specified, repay money which the client has already paid towards those costs or any costs the client has been ordered to pay to another party, pay the costs of a party or repay another person’s costs found to be incurred or wasted.[20]

[20] Rule 19.10(2).

52 The father referred the Court to the decision of Richmond Pharmacology Ltd v Chester Overseas Ltd and others [2014] EWHC 3418. It is a decision of the High Court of England and Wales and as such, is not binding.

What is the father’s case?

53 The father seeks costs calculated as follows:[21]

[21] Annexure 5 of the father’s April 2020 affidavit.

Costs Description	Cost
[Law Firm D]	$ 10,230.25
[Law Firm E]	$ 69,806.87
Transcripts for hearings	$ 351.39
Filing fees for Application in a Case and Subpoenas	$ 785.00
Process Server Fees	$ 835.39
Printer and ink purchased for trial affidavit	$ 1,027.76
ATO Interest to 22 April 2020	$ 11,537.16
Flexiloan interest to 7 April 2020	$ 9,157.42
Total:	$ 103,731.24

54 The father has set out at length, a series of complaints and criticisms in support of his application. While I have not referred to each complaint, I have considered all of them. I have carefully read each of his affidavits. I have summarised what I understand to be the father’s complaints and the foundations upon which he says the Court should make a costs order in his favour.

55 The father makes no complaints against Mrs O. The father says within five weeks of Mrs O’s appointment, his time with D progressed to include on an overnight basis.

56 The father considers the Consent Orders ultimately made, matched the “intent and purpose” of his proposals for trial, which is a “clear demonstration” that the case he faced was “vexatious from the start”, which “no legal professional should have ever agreed to pursue such a case”. He says the Consent Orders amounts to “adequate demonstration that the allegations made against myself were not only disproportionately wide and grossly exaggerated, they were utterly false”.

57 The father’s case is that he was the victim of family violence at the hands of the mother, who then deprived him of contact with D, leading to the commencement of proceedings. He asserts Ms P “in full knowledge that there was no case to answer…fabricated a case against me rather than advising her client to share care”, which was the ultimate outcome. He asserts Ms P and Ms M conducted themselves in both an improper and unreasonable manner and both were guilty of misconduct, which caused him to incur unreasonable costs.

58 In support of his claims against Ms P, the father says:

(a)She behaved in “the most unethical, immoral, improper and unreasonable manner”.

(b)She made false representations against him when the matter was in Court on 15 January 2018, including her submission that she had read text messages sent by the father to the mother, and her submission that supervised time was appropriate. He claims absent Ms P’s conduct, which he describes as “an act of evil”, the case would have concluded on that date. He says he agreed to interim orders on that date under duress.

(c)He is critical of what he asserts was Ms P’s failure to “apply forensic judgement” to her client’s case. He asserts the orders sought by the mother were doomed to fail and were “utterly unreasonable”.

(d)He disputes aspects of the mother’s affidavit evidence which he says was false, such as her claim that he:

a.Had never spent prolonged periods of time with D. D had been in his care from 30 to 31 December 2017.

b.Behaved in a controlling manner, when he says it was the mother who behaved in that manner.

c.Was seeking sole care of D, when he had proposed a shared care arrangement.

(e)He complains that the mother:

a.filed an affidavit on 31 January 2018, which he was not served with until seven days later. He considers there was a deliberate delay in service.

b.failed to file and serve her Notice of Abuse and Financial Statement in accordance with the orders.

(f)He is critical of the mother’s rejection of his proposals to increase time with D and her proposed orders.

(g)He says the refuge wrongly provided emails he had sent to Ms P, who produced them at the Case Assessment Conference “in a reprehensible and unprofessional manner”. He complains he was then “interrogated” and deprived of an opportunity to present his side of the story. Following the Conference, the father says the Minute which he consented to was achieved by coercion and included unwarranted injunctions.

(h)He accuses Ms P of advising the mother not to comply with her disclosure obligations.

(i)He says that on 25 May 2018 a revised Minute was signed by all parties, which he was misled into believing dismissed injunctions previously made.

59 In relation to Ms M, the father makes a number of similar allegations to those levelled against Ms P. He says from the time she was appointed, she sought to deny D contact with his family “without a shred of evidence that such was justifiable”; that she acted “consistently against” D’s best interests and “served only to prolong the unjustified separation of a baby from his father”.

60 He complains that Ms M unilaterally cancelled the proposed Legal Aid Alternative Dispute Resolution Conference. He sought to expedite the proceedings to trial, which the Court was not prepared to order, until the parties had attended the Conference.

61 He relies on his complaints to Legal Aid about Ms M, who he says took a “high handed, authoritarian, intimidatory, bullying approach to me” which he says has continued. The father cites by way of example Ms M’s correspondence advising she did not agree to his application for an adjournment and she would be appearing by way of telephone at the hearing.

62 He refers to s 68LA of the Act in terms of the obligations of an ICL to act impartially, to facilitate an agreed resolution in the best interests of the child, and to ensure that matters are properly drawn to the Court’s attention, which he alleges Ms M failed to do.

63 He criticises Ms M for not contacting Ms S. He refers to his correspondence to Ms S, advising her of the agreement reached between the parents and then set out his belief that the mother suffered from borderline personality disorder.

64 The father says following his complaints to Legal Aid, Ms M was “removed from the case and replaced by Ms C”.

65 The father accuses Legal Aid of being negligent in their grant of aid to Ms P on the basis he questions Ms P’s experience and expertise. He refers to his dissatisfaction with Legal Aid’s response to his complaints asserting that his claim “was ultimately upheld”. He sought a review of Legal Aid’s decision to dismiss his first complaint against Ms M, and his view that Ms M’s responses were “woefully inadequate”.

66 He says Legal Aid should not have extended funding to both Ms P and Ms M because the orders they sought were “hopelessly doomed to fail, in direct contravention of their own guidelines”.

67 He accuses Legal Aid and Law Firm B of “colluding to protect each other” and says it is inappropriate for Legal Aid to refer to the requirement of legal professional privilege as a defence for Ms P and Ms M.

68 He complains that his requests for disclosure from Legal Aid, Law Firm B and Law Firm A in relation to the present application have been ignored. He submits that:

(a)Legal Aid “has absolutely no authority to award taxpayer money as grants of Legal Aid to businesses to support them in responding to allegations of misconduct. The fact that the three Respondents have entered into unlawful financial contracts with each other, to write affidavits and submissions against the Applicant is clear evidence that they exhibit the same corrupt collusion as a cartel”.

(b)The other parties “conspired to protect each other” and have obtained an “unfair advantage”, such that their conduct “may even constitute conspiring to pervert the course of justice; although I acknowledge that an assessment of such would be a matter for the Court to determine”.

(c)He wrote to Legal Aid in November 2019 encouraging them to accept liability for misconduct for solicitors they funded and to pay his costs. No response was received.

69 He is critical of Dr F’s reports. He says some of the Expert’s statements about him are “at best misleading and at worst, perjury”. He says Dr F was an “unreliable witness and none of the negative statements he made” should be given any credibility.

What is the case on behalf of Legal Aid?

70 Legal Aid say the circumstances do not warrant any costs order in the father’s favour, on the basis that:

(a)The proceedings were not necessitated by any party’s failure to comply with an order.

(b)Neither party was entirely successful in the proceedings. There were extensive negotiations. With the assistance of the ICL, the proceedings were resolved.

(c)The matter did not proceed to trial and as such, the evidence was untested. However, they refer extensively to the report of the Single Expert Witness and the parties’ competing applications at that time, each for D to live with them.[22]

(d)They refute the father’s allegation that Legal Aid acted inappropriately or in a manner that can be criticised in terms of their appointment and funding of the mother’s legal representation, or the appointment of Ms M as the ICL. They dispute his claims of misconduct against both Ms P and Ms M

(e)They observe the father makes no application for costs against the mother, nor does he make any complaint about Legal Aid’s appointment, funding or actions of Mrs O during her time as the ICL.

(f)Ms P, Ms M and Legal Aid are required to maintain and preserve any legal professional privilege that arises. They are also bound to comply with s 64 of the Legal Aid Commission Act, which prohibits the disclosure of information which is the subject of legal professional privilege.

(g)Legal Aid provided a grant of aid for the mother, which was assigned to Ms P. Ms P was a member of the family law panel, having been assessed as possessing the necessary experience and qualifications.

(h)Legal Aid provided a grant of aid for an ICL to be appointed for D, which was originally assigned to Ms M. At Ms M’s request, the grant was assigned to Mrs O.

[22] Paragraphs 34 to 43 of the submissions filed on behalf of Legal Aid on 12 June 2020.

71 Legal Aid maintain their guidelines were implemented and there is no basis to support a finding that the father’s costs were unnecessarily incurred due to any conduct on behalf of Legal Aid. They refer to s 37 of the Legal Aid Commission Act in terms of assessing eligibility for a grant of legal aid.

72 Legal Aid also rely on the National Commonwealth Legal Aid Guidelines.[23] Legal Aid were satisfied that in accordance with the Guidelines, both the means and merits tests were satisfied. The merits test comprises of three elements: a test of the legal and factual merits (the reasonable prospects of success); the prudent, self-funding litigant test; and the appropriateness of spending limited public funds test. The reasonable prospects of success test is defined in Guideline 4 as follows:

the reasonable prospects of success test is met if, on the information and evidence and material provided to the Commission, it appears that the proposed action, application, defence or response for which legal assistance is sought is more likely than not to succeed.

[23] Annexure A to the submissions filed on behalf of Legal Aid on 12 June 2020.

73 Legal Aid acted reasonably in funding the mother’s legal representation, in addition to the ICL.

74 In relation to the father’s three complaints to Legal Aid:

•The father’s first complaint was made in February 2018.[24] He alleged the mother was ineligible for Legal Aid on the basis she may have property in Country B. He suspected she was defrauding Legal Aid and requested an investigation. Legal Aid conducted a review and assessed the mother was eligible for a grant of aid.

•The father’s second complaint in May 2018[25] related to alleged misconduct by Ms P. Legal Aid referred the father to the Legal Profession Complaints Committee. The father indicated he had already filed a complaint with the Legal Practice Board.

•The father’s third complaint in January 2019[26] alleged misconduct by Ms M. Legal Aid investigated and had no concerns about Ms M’s conduct. They again referred the father to the Legal Profession Complaints Committee and to the Family Court.

What is the case on behalf of Law Firm A?

[24] Correspondence from Mr Graham dated 18 February 2018 - Annexure B to the submissions filed on behalf of Legal Aid on 12 June 2020.

[25] Correspondence from Mr Graham - Annexure C to the submissions filed on behalf of Legal Aid on 12 June 2020.

[26] Correspondence from Mr Graham - Annexure D to the submissions filed on behalf of Legal Aid on 12 June 2020.

75 Ms P received a grant of aid to act for the mother on 12 January 2018 and provided a copy of the grant.[27]

[27] Email from legal aid to Ms P dated 12 January 2018 - Annexure A to the Affidavit of Ms P filed 2 June 2020.

76 Ms P has responded to a number of the father’s complaints, but confirms she cannot depose as to either her advice to the mother, nor the mother’s instructions, which are the subject of legal professional privilege which has not been waived.

77 Ms P appeared on behalf of the mother at the hearing on 15 January 2018, and made submissions that the father had behaved in a controlling manner, consistent with the definition of family violence. That submission was based upon the father’s filed documents, Ms P’s review of some text messages received by the mother from the father, her instructions, together with a spreadsheet prepared by the father purporting to divide up the household tasks between the parties. The spreadsheet[28] included time limits as to when the mother was permitted to feed and care for D. It provided the father have 100% financial control.

[28] Annexure B to the Affidavit of Ms P filed 2 June 2020.

78 It was not in dispute that D was in the father’s care from around 30 to 31 December 2017. The mother’s case was that she did not consent to those arrangements, nor consider they were age appropriate given that she was D’s primary carer, who was then around six months of age.

79 The father’s complaint about a delay in being served with the mother’s affidavit is explained by Ms P. The Court did not return the sealed copies until 6 February 2018. She then made arrangements to serve the father.

80 In March 2018 the refuge provided to Ms P, a volume of emails sent by the father to them, as well as the mother’s medical practice and those assisting the mother in relation to her visa. They informed Ms P the emails were upsetting the mother and queried whether a request could be made to the father’s lawyer for him to cease the communications. These matters were discussed at the Case Assessment Conference, which led to the agreement, as recorded, for the father to desist.

81 Ms P supported the application of the ICL and also sought to limit the father’s communications with her offices, on the basis he was sending correspondence on an almost daily basis. Despite the order limiting the father to not sending more than one communication a week, he did not comply.

82 Ms P denies the father’s allegations that she sought to, or did mislead him. She denies his allegations of misconduct, collusion or fabrication the mother’s case.

What is the case on behalf of Law Firm B?

83 The father made two complaints to Legal Aid about Ms M.

84 On 31 January 2019 Ms M responded to the first complaint.[29] She denied his complaints about her conduct at the Case Assessment Conference, noting the Family Court Consultant conducted the Conference and the father was legally represented. The Conference memorandum recorded the agreement reached on that date. She disputed the father’s suggestion there were “unlawful injunctions” or any “unlawful coercion” on the part of Ms P towards him.

[29] Letter from Law Firm B to Legal Aid dated 31 January 2019- pages 14 – 16, Annexure A to the Affidavit of Ms M filed 12 June 2020.

85 Ms M explained the basis upon which she was not supportive of the father’ proposal for shared care or increased time, given the conflicting evidence. She denied the father’s allegation she had interfered with the Expert’s assessment or that she had refused to notify the Expert of any injuries suffered by D. She queried the father’s complaint that she had not supported the mother’s duty of disclosure.

86 Ms M informed Legal Aid she had filed an Application in a Case seeking to limit the father’s communications, advising she had received from the father 141 emails between 24 April and 17 July 2018, a number of which were aggressive, including personal threats against the ICL. The Court granted the injunction on 26 July 2018.

87 On 27 February 2019 Legal Aid acknowledged receipt of Ms M’s response and confirmed the father had been advised that Ms M appeared to be meeting her obligations as the ICL. The father was informed of the option to make an application to the Court, if he had ongoing concerns.

88 On 19 March 2019 Legal Aid informed Ms M the father had complained she had failed to provide a complete set of Court documents to Dr F and specifically, she had failed to provide the father’s Form 4 filed 18 June 2018, his affidavit filed 27 June 2018, and the minute of consent orders dated 15 January 2018.[30]

[30] Letter from Legal Aid to Law Firm B dated 19 March 2019 enclosing Mr Graham’s complaint, pages 28 - 29, Annexure A to the Affidavit of Ms M filed 12 June 2020.

89 Ms M responded[31] that she did not receive sealed copies of the father’s documents and was unable to provide copies to Dr F. Ms M informed the father’s solicitor in the same terms.[32]

[31] Letter from Law Firm B to Legal Aid dated 27 March 2019, page 30, Annexure A to the Affidavit of Ms M.

[32] Letter from Law Firm B to Law Firm E dated 21 March 2019, page 31, Annexure A to the Affidavit of Ms M.

90 The Director responded on 11 April 2019 confirming she had provided Ms M’s response to the father and informed him that she was satisfied with the contents. The Director confirmed she had informed the father that she would not be making any further comments in relation to the issues and the matter had been transferred to Mrs O.[33]

[33] Letter from Legal Aid to Law Firm B dated 11 April 2019, page 32, Annexure A to the Affidavit of Ms M filed 12 June 2020.

91 Ms M was not removed as the ICL. Ms M wrote to the Director of Legal Aid, asking that the matter be transferred to a Legal Aid ICL, following publication of the Single Expert Witnesses report, on the basis that she considered the father’s attitude towards her was not conducive to the matter proceeding satisfactorily.[34]

[34] Letters from Law Firm B to Legal Aid dated 15 March 2019, page 34, Annexure B and dated 27 March 2019, page 30, Annexure A to the Affidavit of Ms M filed 12 June 2020.

92 Ms M considered the Legal Aid Dispute Resolution Conference was more appropriately held after receipt of Dr F’s report.

Discussions

The financial circumstances of the parties

93 The father is [an IT specialist] and consultant. He says his legal costs have caused him “great financial hardship”.[35] He asserts he has been unable to pay taxes owing to the Australian Taxation Office, and there is a risk bankruptcy proceedings will be initiated against him.[36] In his letter to the Court dated 30 December 2019[37] he says his debt to the ATO is approximately $100,000. He states he has been in and out of arrears in regard to his mortgage repayments[38] and will be made homeless in the event he is declared bankrupt.[39] There is no evidence about the value of the father’s assets, liabilities, superannuation entitlements, financial resources nor income.

[35] Affidavit of Mr Graham filed 30 December 2019, paragraph 9.

[36] Affidavit of Mr Graham filed 30 December 2019, paragraph 9.

[37] Which is not evidence.

[38] Affidavit of Mr Graham filed 28 April 2020, paragraph 8.

[39] Affidavit of Mr Graham filed 30 December 2019, paragraph 12.

94 The financial circumstances of Legal Aid are not in question. It is not in dispute they are in a stronger financial position than individual litigants in the matter. Legal Aid’s resources are limited. They are governed by a budget. There are policy considerations that public funds should not be wasted, especially in circumstances where Legal Aid fund legal services to those who cannot otherwise afford them, in matters which meet their criteria for aid.

95 There is no evidence as to the financial circumstances of the two law firms.

The conduct of the parties in relation to the proceedings

96 I have already summarised each party’s case in relation to conduct. The father has made a number of assertions, based upon his suspicions and beliefs. His beliefs, suspicions and assertions are evidence only of his state of mind. They do not advance his case, and nor do they amount to evidence.

97 The father has not established that either Ms P or Ms M’s conduct constituted an abuse of the Court process, or conduct which was malicious, dishonest or unreasonable.

98 There is no evidence to suggest either Ms P or Ms M conducted the proceedings for any improper purpose, or that either failed to discharge their duty to the Court.

99 The father has not established that Law Firm A, Law Firm B or Legal Aid have unnecessarily added to his costs.

100 I am not satisfied the father’s complaints as to Ms P’s conduct have any merit. She has explained the delay in service, her production of the father’s emails at the Conference and the basis upon which injunctions were made by consent.

101 Similarly, I am not satisfied his complaints against Ms M’s conduct have any merit. She was not removed as the ICL. No application was ever made for her to be removed by the father, despite his complaints. She has provided an explanation for the fact documents were not provided to Dr F.

102 The father’s complaints about the failure of all the parties to provide documents by way of disclosure, ignores both the legislative requirements and the legal professional privilege requirements, to which I have identified.

103 The Court does not know what advice Ms P provided to the mother, which is protected by legal professional privilege. In the absence of a waiver of privilege, solicitors are entitled to the benefit of the doubt.[40]

[40] Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation(No 2) [2000] SASC 63 at [31].

104 I am not satisfied on the current evidence that Ms M failed in her duties as the ICL. There is no evidence to support a finding that she unreasonably lengthened the proceedings. While there were delays in provision of the Expert’s report, as articulated in the report of Dr F, none of those delays are attributable to Ms M. Many of the father’s complaints appear directed to the fact he perceives Ms M was not supportive of his case. That misunderstands the role and responsibilities of the ICL.

105 I accept the father was unhappy with Ms M’s decision to cancel the proposed Conference, which was arranged after the orders on 11 April 2018. There was nothing unreasonable about her decision to delay the Conference, upon obtaining funding to appoint a Single Expert Witness.

106 The chronology demonstrates that Dr F was appointed by consent in October 2018 and his report produced in February 2019. I acknowledge the father considered any delay in the proceedings was not in D’s best interest, given the limited time D was spending with him. However, I do not accept the delay or steps taken by the ICL were unreasonable or inappropriate. Given the highly conflictual evidence of the parties, the competing applications and the needs of a young child, the appointment of a Single Expert Witness was appropriate and warranted.

107 The ICL hoped, with the benefit of a Single Expert Witness report, the parties might be in a better position to conduct negotiations. I do not accept the ICL caused undue delay in the circumstances.

108 It has been observed that in this jurisdiction, there are frequently difficulties assessing the merits of a party’s claim. The merits of a claim may, and sometimes do change, over the course of proceedings, with the introduction of additional evidence, including expert evidence and subpoenaed material. An assessment of the merits of a claim and specifically, whether the orders sought are in a child’s best interests, does not occur until a trial, which affords the Court an opportunity to see the parties and the witnesses be cross-examined. It is only at a trial, that a judicial officer can make findings of fact where the evidence is in dispute.

109 No trial took place. The parties agreed to resolve matters. The fact an agreement was reached, does not support the father’s assertion the mother’s proposed orders were doomed to fail.

110 To the extent the father asserts Legal Aid should not have funded the mother or the ICL, these are not matters for the Court to determine. Legal Aid were satisfied the guidelines were applied and met.

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

111 I was not directed by any party to any offer in writing.

Whether any of the parties were in receipt of Legal Aid

112 As identified, both the mother and the ICL were funded by Legal Aid.

Were the proceedings necessitated by the failure of any party to comply with previous orders of the Court

113 The proceedings were not necessitated by any parties’ failure to comply with an order.

Whether either party has been wholly unsuccessful in the proceedings

114 The father suggests the mother was unsuccessful in terms of seeking D live with her, and he was successful in seeking a shared care arrangement.

115 In the father’s Initiating Application he did not particularise the final orders he sought. On an interim basis, he sought D live with him. On 21 May 2019 the father filed a minute, in which he sought D live with each parent on a complex fortnightly arrangement, and an order for equal shared parental responsibility.

116 I have already referred to the Consent Orders. While they included orders for equal shared parental responsibility and shared care, they were not identical to the father’s proposals. For example, the Consent Orders did not include arrangements for make-up time, limitations upon each parent’s ability to enrol D in extra-curricular activities, orders for D’s passport to be held at the Family Court Registry, or the requirement of a $15,000 bond paid by either parent, if they sought to travel with D to a non-Hague convention country.

117 It is well established that a party being largely successful, is not the same as being wholly successful.[41]

[41] Anison & Anison (2019) FLC 93-908.

118 In the circumstances, where there was no determination by the Court of each party’s application, but a resolution achieved, neither party was wholly unsuccessful in the sense that the other party’s application was dismissed and found to lack merit.

Any other matter

119 There are no other relevant matters.

CONCLUSIONS

120 Awards of costs are compensatory and not punitive. The primary rule in this jurisdiction is that each party bears their own costs.

121 The father’s claim for costs includes interest he owes to the Australian Taxation Office, interest on another loan, together with printer ink, with a combined total of $21,722.34. To meet his legal costs, he elected not to pay tax to the ATO, and accumulated debts on his mortgages.

122 Section 3 of the Legal Profession Act 2008 (WA) defines legal costs as amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest.

123 The father’s claim for printing and interest does not fall within the definition of legal costs, and is incompetent.

124 The father seeks costs on an indemnity basis. Where such an application is made, and the costs incurred arise under a costs agreement, the terms of the agreement must be disclosed to the Court.[42]

[42] Rule 19.08(3) of the Rules and Addison & Lahey [2008] FamCA 248 at [95].

125 The Explanatory Guide to the Rules provides a definition of indemnity basis, as follows

“an entitlement to costs, including costs under a costs agreement, for all costs incurred, other than costs that are unreasonable in amount or that have been incurred unreasonably”.[43]

[43] CCH Australian Family Law Handbook at page 7,454.

126 The father’s failure to adduce the costs agreements entered into between himself and his legal representatives is fatal to his application for indemnity costs.

127 I have carefully considered the father’s application, with great caution, and without sympathy or favour.[44]

[44] Limousin MLF 10522 of 1996 at 28.

128 The substantive proceedings related to the best interests of D. Each parent was entitled to put forward their proposals, in terms of what they considered were in his best interests. The proceedings were of great importance to each parent.

129 There is nothing in s 117 of the Act that prevents or prohibits the making of an order in such a parenting case, where appropriate. In Hawkins & Roe (2012) 47 Fam LR 526 the majority said at [147]:

Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

130 The Full Court in Wrensted & Eades (2016) FLC 93-697 referred to the above-mentioned passage in Hawkins (supra) and considered it should not be read as indicating a requirement for certain features to be present before a costs order can be made. The Full Court emphasised the wide discretion contained in s 117(2), including the lack of distinction between parenting and property cases, rendering it inappropriate to place any fetter upon the exercise of that discretion.

131 After careful consideration, I am not satisfied the circumstances warrant a departure from the primary rule. In my view, nothing which the father has raised properly or relevantly satisfies the principles to support an order for costs against Legal Aid, Law Firm A or Law Firm B.

132 Throughout the substantive proceedings, no orders were made reserving the costs of any party. While I make that observation, I proceed on the basis that does not detract from the power of the Court to make a costs order.

133 In my view, the father’s complaints against Legal Aid, Law Firm A and Law Firm B reflect his subjective views only and dissatisfaction with the process. I am not satisfied there is evidence to support the father’s complaints. He has not established:

•a sufficient connection between Legal Aid, or either firm and the proceedings to ground an award for costs.

•any abuse of the court process, including evidence of false allegations.

•a causal connection between those parties and his costs.

•the interests of justice demand a costs order in his favour.

134 As I have observed, the proceedings were resolved by consent. None of the evidence was tested by way of cross-examination. Contrary to the submissions of the father, it is not open to the Court to make findings of fact where the evidence was in dispute and where none of the parties, nor any of the witnesses, attended the trial for the purposes of cross-examination.

135 I propose to dismiss the father’s application. It was foreshadowed there may be claims for costs against the father, if his claim failed.

136 I intend to require the father to file and serve a financial statement within 21 days and then hear from the parties whether such applications are pressed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

17 SEPTEMBER 2020