Granato & Granato
[2021] FedCFamC1F 246
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Granato & Granato [2021] FedCFamC1F 246
File number(s): BRC5179 of 2017 Judgment of: CAREW J Date of judgment: 3 December 2021 Catchwords: FAMILY LAW – COSTS – Where the mother filed an Application in a Proceeding for costs – Where the father filed a cross-application in his Response to an Application in a Proceeding for costs – Where the father’s
cross-application was filed out of time – Where the Court was not persuaded that the mother’s circumstances justified a departure from the general rule that each party bear their own costs – Where the mother failed to differentiate between her costs incurred in Commonwealth family law proceedings and State civil and criminal proceedings – Where the mother largely failed to prove that she has paid her legal costs – Where the mother’s costs application is dismissed – Where the father’s costs application is dismissed.Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Fitzgerald v Fish sub nom PBF v TRF (FLR) (2005) 191 FLR 294
Penfold v Penfold (1980) 144 CLR 311
Gallo v Dawson (1990) 93 ALR 479
Number of paragraphs: 22 The Applicant: Self-represented litigant The Respondent: Self-represented litigant Date of last submissions: Mother’s written submissions filed 1 November 2021;
Father’s written submissions filed 16 November 2021Date of hearing: In Chambers Place: Brisbane ORDER
BRC5179 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GRANATO
Applicant
AND: MR GRANATO
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
3 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application for costs filed by the mother in an Application in a Proceeding on 21 September 2021 be dismissed.
2.The father’s cross-application for costs contained in his Response to an Application in a Proceeding filed on 19 October 2021 be dismissed.
NOTATION:
A.By Order made on 24 September 2021 the application for costs was to be heard in chambers upon the filing of written submissions save if a party requested an oral hearing.
B.The father did request an oral hearing although written submissions were filed and the matter was listed for 30 November 2021.
C.Upon the joint written request of the parties (verified by direct communication) the oral hearing was vacated and determined in chambers.
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 Granato & Granato has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J
On 27 August 2021 I made a final parenting order (“the final order”) pursuant to which X (“the child”) is to continue to live with her mother, Ms Granato (“the mother”). The mother now applies for the father to pay all her legal costs of $150,000.
The final order makes no provision for the father to spend time with the child but nor does it restrain him from doing so in the future. This somewhat unusual circumstance can perhaps be best understood by quoting from my Reasons for Judgment delivered on 27 August 2021 as follows:
142.Despite the father not presenting an unacceptable risk of harm to the child, she refuses to see him and has taken rather extraordinary steps to demonstrate her resistance, thereby placing herself at risk.
143. The process of the mother’s alienation of the child from the father has unfortunately succeeded, to the point where the father’s most recent attempt to speak to the child led to her running hundreds of metres away from him and thereby endangering herself. Third party witnesses and police became involved and the whole incident was no doubt traumatic for the child. One can only imagine the pressure the child is under. She has completely aligned herself with the mother.
144. The mother has no insight into the damage she has caused the child. The child has an enmeshed relationship with her mother and is totally invested in the dispute. I have no doubt the child will suffer long term emotional and psychological damage as a result of her involvement in the parental dispute. The mother’s conduct, in particular, is indefensible and among the worst I have seen in my forty years of involvement in family law.
…
164. I am nevertheless hopeful that once the child realises that she is not going to be removed from her mother’s care, she may agree to see the father. While I place little faith in the mother’s evidence that she would facilitate the child seeing the father in a public place, I hope, for the child’s sake, that the mother is true to her word.
…
170.The order proposed by the ICL in relation to the child spending time with the father, or communicating with him, is directed to the child i.e. that the child spend time and communicate with the father as determined by the child. I do not intend to make that order. The child is of course free to contact her father if she chooses to do so at some future time and, for her sake, I hope she does so. As it seems the father has in the past been permitted by the child’s school see the child at school on occasion, I see no reason why that should not occur in the future if the school permits it.
On 21 September 2021 the mother applied for a costs order of $150,000 against the father “[d]ue to the fact that [the father] lost the final trial”.
Not surprisingly, the application is opposed.
An application for costs may be made within 28 days of a final order being made (r 12.13(3)(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)).[1] The final order in this case was made on 27 August 2021 so the mother’s application is within time.
[1] Formerly r 19.08(2)(b) of the Family Law Rules 2004 (Cth).
In the family law jurisdiction each party generally bears their own costs (s 117(1) Family Law Act 1975 (Cth) (“the Act”)).
However, if the court is of the opinion that there are “circumstances that justify it in doing so, the court may … make such order as to costs … as the court considers just” (s 117(2) of the Act). An applicant for costs bears no “additional or special onus” other than the establishment of “justifying circumstances”.[2]
[2] Penfold v Penfold (1980) 144 CLR 311 at 315.
In considering what costs order (if any) should be made, the court is required to have regard to the matters set out in s 117(2A) of the Act, so far as they are relevant. Those matters 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.
It is sufficient for one factor in s 117(2A) of the Act to be present.[3]
[3] Fitzgerald vFish sub nom PBF v TRF (FLR) (2005) 191 FLR 294 at 301, [41].
Although the mother was represented at the final hearing pursuant to the Commonwealth Government funding scheme which provided legal representation to the mother via Legal Aid Queensland, and therefore incurred no costs of the trial, she has previously retained lawyers in the proceedings. The mandatory ban against cross-examination by a party of a party (s 102NA of the Act) arose as the result of a domestic violence protection order in place for the protection of the father against the mother. Over the last five years, the parties have been involved in litigation in this and other courts, relating to parenting and property matters, enforcement of property orders, defamation, domestic violence and criminal proceedings.
The mother attaches to her affidavit various invoices for legal costs incurred by her dating back to 2017. Relevantly, the matters said by the mother to justify a costs order against the father are as follows:
(a)The father “lost the final trial”;
(b)The father had the “goal of taking my daughter away from me”;
(c)The father owns five houses and one piece of land worth more than $3,000,000 and has his own business and superannuation worth more than $1,000,000 and a car;
(d)The mother spent most of her property settlement of $300,000 on legal costs and is left with a very small rented town house to house herself and the child;
(e)The mother has no job and is in receipt of Centrelink payments; and
(f)The father has an income of more than $150,000 but “hides” it and pays no child support and has outstanding arrears of child support.
By his Response to the application for costs, the father cross-applies for costs of an interim hearing on 19 November 2020 fixed in the sum of $13,500 and partial costs of the trial fixed in the sum of $25,218. He otherwise seeks the dismissal of the mother’s application for costs against him.
The father resists a costs order on the following bases:
(a)On 2 December 2019 the parties resolved their property dispute on a final basis and agreed on a process to resolve the defamation proceedings (in which he was the plaintiff) which included a release from any costs in other courts;
(b)The father was required to bring enforcement proceedings against the mother after the final property order and obtained a Warrant for possession of the property that the father retained pursuant to court order but the mother would not leave;
(c)The mother has failed to separately identify what legal costs were incurred by her in relation to the proceedings settled on 2 December 2019 or the enforcement proceedings or criminal proceedings (an assault case in which she was the defendant);
(d)The mother has failed to prove that she has in fact paid the invoices annexed to her affidavit;
(e)The father suffered cancer and does not enjoy good health;
(f)The father works part-time;
(g)The father owes his family $500,000 in relation to the proceedings including money to pay out the mother’s property settlement;
(h)The father complies with his obligations to pay child support in accordance with the child support assessment;
(i)The father’s income for child support assessment purposes is $29,906 per annum;
(j)The mother has a long history of contravening court orders be they parenting orders, property settlement orders and non-denigration orders (which she continues to flout by the defamatory comments in her affidavit filed in support of her current application);
(k)A number of the applications in which the parties have been involved (and for which the mother now seeks costs) related to the mother’s non-compliance with court orders;
(l)The father was not wholly unsuccessful at trial in that the mother was unsuccessful in her claims that the father posed an unacceptable risk of harm to the child;
(m)The mother received $300,000 on 25 February 2020 pursuant to the property settlement order made by consent on 2 December 2019 and provides no evidence of what she used that money for and, if she did use it to pay legal fees, why she does not have $150,000 or thereabouts remaining.
CONCLUSION ON THE MOTHER’S APPLICATION FOR COSTS
I am not persuaded that the mother should be awarded costs as sought or at all for the following reasons:
(a)I am not satisfied that any of the matters relied upon by the mother are circumstances justifying a departure from the general rule that each party should bear their own costs;
(b)The mother has failed to differentiate between costs incurred by her in relation to different parts of the proceedings e.g. enforcement proceedings successfully brought against her or proceedings in other courts for which a release against costs was ordered by consent on 2 December 2019;
(c)The mother has largely failed to prove that she has paid (rather than incurred) the legal costs to which the various invoices annexed to her affidavit relate;
(d)The father was not wholly unsuccessful in the proceedings either at trial or generally and, in particular, the very serious allegations made against the father by the mother were not made out at trial.
Accordingly, the mother’s application for costs will be dismissed.
THE FATHER’S CROSS-APPLICATION FOR COSTS
The father’s Response filed on 19 October 2021 contains a cross-application for costs against the mother. As already noted a party may apply for costs within 28 days of the final order. The father’s cross-application was not filed within the time limit specified by the Rules.
The costs applied for by the father relate firstly to the interim hearing on 19 November 2020 which related to his interim application seeking to enforce the order made requiring the child’s continued attendance at her school. The mother changed the child’s school contrary to the order and then suspended the father’s time with the child after vandalising the house he was to retain as part of the property order.[4] The father’s interim application initially sought a change of residence for the child but he capitulated on the day of the hearing and abandoned his application for a change of residence. However, he was successful in obtaining an order that the child spend five nights per fortnight with him and that she return to her school. Despite the order, when the father attended at the child’s school to collect her she ran away. The father seeks part of his fees associated with that hearing, namely $8,500 out of $10,777 paid to his solicitor and $5,000 out of $8,882.50 paid to his barrister. Secondly, the father seeks reimbursement from the mother for one day of trial preparation and two days of the trial relating to her unsuccessful allegations against him involving sexual abuse of a child and domestic violence. He argues that conservatively one day of his legal representatives’ preparation related to these issues and two days of cross-examination and he divides those fees into $10,368 for his solicitor and $14,850 for his barrister.
[4] Reasons for Judgment delivered 27 August 2021 at [132].
The father argues that the mother should not be “rewarded in any way for her terrible conduct” which included alienating him from his daughter, contravening numerous orders, vandalising his house, refusing to participate in court ordered psychiatric assessment, video recording the child to make rehearsed statements against him, acting defiantly such as to make it impossible for experts to come up with a way forward which could reunite him with the child.
CONCLUSION ON THE FATHER’S CROSS-APPLICATION FOR COSTS
Unless the father is granted an extension of time to make his application for costs nunc pro tunc his application must fail. The father makes no application for an extension of time despite the time limit being pointed out by the mother in her written submissions (which are largely a repeat of her affidavit).
The father provides no evidence to explain the delay in making his application for costs which would be a relevant consideration in the exercise of the discretion to extend time.[5] The submissions do not address the issue of an extension of time.
[5] Gallo v Dawson (1990) 93 ALR 479.
Even if an extension of time to file his cross-application were granted I would not make an order for costs against the mother in relation to the trial for the following reasons:
(a)The trial was concerned with competing parenting applications;
(b)The very nature of parenting proceedings i.e. determining what is in the best interests of a child, do not often lend themselves to an award of costs but costs can certainly be awarded in an appropriate case;
(c)While I was very critical of the mother in my Reasons for Judgment (27 August 2021) I made the following findings against the father:
145. … the father is not without fault. [Ms T] opined in her report dated 5 April 2018 that, “[t]he child has been actively involved, by the parents, in the conflict between them” (emphasis added). I agree.
146. Unfortunately, despite it being pointed out to the father in [Ms T’s] report dated 5 April 2018, that his attempts to defend himself against the child’s repetition of the mother’s allegations were themselves abusive, he has not tempered his reactive responses to the child.
147. The father really shows no sign of changing. … There did not seem to be any recognition by the father that such comments place the child in an invidious position and add to the pressure she is already enduring.
(d)Whatever the mother may have left from her $300,000 property settlement (and I note that her property settlement was paid to the trust account of her solicitor at the time and therefore assume that at least part of the funds were utilised to pay legal fees) the father did not take issue with the mother’s submissions that he owned a number of properties and I note that pursuant to the final property order made on 2 December 2019 the father was to retain five real properties. He is therefore in a far stronger financial position than the mother;
(e)The father’s current child support assessment is a very modest $50.83 per month and the mother is otherwise responsible for the financial needs of the child.
The father’s cross-application for costs against the mother will be dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 3 December 2021
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