Grey and Middleton - [2013] FMCAfam 164

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GREY & MIDDLETON

[2013] FMCAfam 164

FAMILY LAW – Costs – costs sought by Independent Children’s Lawyer – Independent Children’s Lawyer not bound by or subject to s.117(1) – Independent Children’s Lawyer appointed due to allegations raised by father – father failed to file material – father to pay costs of Independent Children’s Lawyer – application for costs against mother is dismissed in circumstances where no justifying circumstance is established, it would not be just and equitable to do so and any order would cause financial hardship.

Family Law Act 1975, ss.4, 4AB, 67ZBB, 68L, 68LA, 117
Federal Magistrates Court Rules 2001

Re JJT and Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812
Bennett & Bennett (1991) FLC 92-191

Applicant:

MS GREY

Respondent:

MR MIDDLETON

File Number:

PAC 3316 of 2008

Judgment of:

Harman FM

Hearing date:

13 February 2013

Date of Last Submission:

13 February 2013

Delivered at:

Parramatta

Delivered on:

13 February 2013

REPRESENTATION

Counsel for the Applicant:

Ms Little

Solicitors for the Applicant:

Mahony Family Lawyers

Counsel for the Respondent:

Mr Duong

Solicitors for the Respondent:

Prime Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Rutkowska as Agent

Solicitors for the Independent Children’s Lawyer:

Stanfords Solicitors

ORDERS

By consent of the parties:
(a)The Application filed 17 October 2012 and Amended Application filed 20 November 2012 are dismissed:
(b)Discharge all and any interim orders made in these proceedings (to the extent it would not otherwise be apparent that same are extinguished with the conclusion of the proceedings);
(c)IT IS NOTED that the extant orders by the Family Court of Australia at Parramatta made on 24 July 2008 are to continue in force and unaltered.
Leave is granted to the Independent Children’s Lawyer to make an application for costs as against each party in the sum of $1,089.90 per person.
The application for costs made by the Independent Children’s Lawyer as regards a contribution by the Applicant, Ms Grey, is dismissed.
The Respondent, Mr Middleton, shall pay as a contribution towards the costs of the Independent Children’s Lawyer and incurred by the Legal Aid Commission of New South Wales in facilitating such representation in the sum of $1,089.90. Such costs to be paid within 28 days of today’s date being by no later than close of business on 13 March 2013.
IT IS NOTED that if costs are not paid in full by close of business on 13 March 2013, that interest will accrue upon such portion as remains outstanding at the rate prescribed by the Rules and, further, the Legal Aid Commission will be entitled to commence recovery proceedings in a Court of competent jurisdiction.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

IT IS NOTED that publication of this judgment under the pseudonym Grey & Middleton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 3316 of 2008

MS GREY

Applicant

And

MR MIDDLETON

Respondent

REASONS FOR JUDGMENT

The substantive Application regarding the parenting arrangements for the children, [X] born [in] 2002 and [Y] born [in] 2005, having been finalised, an Application for costs is made by the Independent Children’s Lawyer upon the conclusion of these proceedings.
The Independent Children’s Lawyer is seeking an order for contribution by each of the parties in the sum of $1089.90 per party. The Independent Children’s Lawyer, it is clear through a line of established authorities including, but not limited to, Re JJT and Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 has standing to seek an order for costs.
Thus I have no concern, leave having been granted to make such oral application and notice of intention to make such application having been given, that the matter can and should proceed.
The issue of costs is dealt with by section 117 of the Family Law Act 1975 (Cth).
Section 117(1) sets out what is usually referred to as “a general rule” that each party shall bear his or her own costs. In that regard section 117(1) is in the following terms:
each party to proceedings under this Act shall bear his or her own costs.
As is made clear through a line of authorities commencing with the Full Court’s decision in Bennett & Bennett (1991) FLC 92-191, the Independent Children’s Lawyer, whilst having a status akin to that of a party for the purpose of prosecuting proceedings before the Court and discharging their duties and obligations pursuant to sections 68L and 68LA, is not a party to the proceedings and thus the general rule neither applies to nor binds them.
In those circumstances there is no basis for me to proceed, as regards the costs of the Independent Children’s Lawyer, other than in accordance with the generally accepted common law position that “costs follow the cause” and subject to a consideration of the remainder of s.117 (and, in particular, paragraphs (2)-(5) inclusive). Thus the Independent Children’s Lawyer is not subject to nor constrained by the general rule established by s.117(1) and the Court’s jurisdiction to award costs is entirely at large at all times.
Section 117(2) makes clear, lest I am wrong with respect to the above, that an application for costs can be made and an order made by the Court if the Court is satisfied, again as discussed in Re JJT and Ors; Ex Parte Victoria Legal Aid and is clear and apparent from subsection (2), that the dual tests are satisfied, namely that:
a)There are circumstances justifying an order for costs; and
b)It would be just and equitable for such an order to be made.
The High Court in Re JJT and Ors; Ex Parte Victoria Legal Aid has made clear that the expressly reserved discretion to award costs (s.117(2)) can be exercised in favour of a party or non-party (such as an Independent Children’s Lawyer).
In determining each of the above tests the Court must have regard to the matters set out in section 117(2A) being a non-prescriptive list of considerations.
Sections 117(3), (4), and (5) deal specifically with the Independent Children’s Lawyer in any application for costs.
Section 117(3) provides some confidence and comfort with respect to my interpretation of section 117(1) in that it establishes clearly, and to avoid doubt, that the Court may make an order in favour of an Independent Children’s Lawyer with respect to costs. That must imply and import that the Independent Children’s Lawyer has standing to make such an application other than as a party.
Section 117(4) makes clear that in proceedings in which an Independent Children’s Lawyer is appointed, if a party to proceedings has received legal aid or the Court considers that a party would suffer financial hardship if they had to bear a portion of costs, that the Court must not make an order against that party.
Section 117(5) makes clear that the Court must, in determining whether to make an order for costs against a party and in favour of the Independent Children’s Lawyer, disregard the fact that the Independent Children’s Lawyer is funded under a legal aid scheme of a State, Territory or Commonwealth.
I need not and do not have regard to that funding circumstance as there are abundant circumstances that satisfy the dual tests and thus, and to ensure there is no confusion, that is not a matter to which I have regard.
In turning to and dealing with each of the matters which would preclude an order for costs (section 117(4)) I note that neither party is legally aided, or at least the Court is not advised of same and thus section 117(4)(a) cannot apply.
Pursuant to section 117(4)(b) I must be satisfied that there would not be financial hardship suffered by a party if they were ordered to pay costs. That consideration overlaps with the factors considered by reference to s.117(2A) and I propose to address same through a consideration of the those broader matters.
In turning to section 117(2A) and by reference to the evidence of the parties I note the following.

(a) Financial circumstances of the parties.

There is little evidence available as to the Applicant’s financial circumstances. She has not focused upon financial issues in the proceedings. The parenting matter before the Court arose in circumstances wherein there were existing final orders in force between the parties and the children, or a number of them, had been retained by the father in apparent contravention or disregard of those orders. Thus the proceedings were commenced by the Applicant in seeking the return of the children to her care.
The financial circumstances of the parties was not relevant or germane to the relief sought and thus there can be no criticism of the mother for not having led specific evidence with respect to her financial circumstances.
What is clear and apparent from the mother’s material is that she is employed, (at the commencement of the proceedings, as a “[omitted]”, and by the time of filing her Amended Application employed as a “[omitted]”). It is submitted on the mother’s part and I accept, that her net disposable income or take-home pay is in the vicinity of $500 to $600 per week.
It is indicated that the mother does not presently receive child support. It is unclear whether there is any assessment of child support which creates a registrable or enforceable obligation. In any event, nothing is paid.
There is no evidence filed by the Respondent father in these proceedings. The only evidence with respect to the father’s employment or income arises from that alleged by the Applicant wherein she indicates he is usual occupation is as a “[omitted]”. It is submitted by the father’s attorney on the father’s behalf, the father not being present today, that he is self-employed in that occupation.
The absence of evidence with respect to financial circumstances by the Applicant does not cause me any concern. There is no basis upon which she would have filed such evidence in light of the context of the proceedings as noted above.
The absence of evidence on the father’s part is highly concerning. The father has not filed evidence in the proceedings. That is so notwithstanding the application of the Federal Magistrates Court Rules 2001 which would require, by operation thereof, that a Response and Affidavit material be filed within fourteen days of service of the Application.
It is not clear when service was effected, but on the basis that the proceedings were commenced by Application filed 17 October 2012 and the father appeared on the first return date, 19 October 2012, and indicating on that date that he had been served, there is no reason to doubt that service occurred in accordance with the leave granted by the Registrar who abridged time and directed service on or before 1.00pm on 18 October 2012.
Thus material by way of Response and Affidavit would, by operation of the Rules, have been required to be filed on or about 2 November 2012.
In any event, that was somewhat overtaken through an extension afforded to the father by orders made on 19 October 2012 which required the filing of a “Response and Affidavit sufficient to comply with the Federal Magistrates Court Rules and allow the agitation and determination of interim issues by no later than close of business on 16 November 2012…”
The proceedings were next before the Court on 21 November 2012, the proceedings having been adjourned to that date for possible interim hearing. The father had not filed material and thus the interim hearing could not proceed. An order was then made extending time for the father to file and serve a Response and Affidavit (and notwithstanding that the date for filing had already expired) and thus material was required to be filed by close of business 14 December 2012 “and not otherwise”.
The only portion of that order which would appear to have been paid any real attention by the Respondent was the last portion thereof as, he not having filed material by 14 December 2012, he has not otherwise filed or attempted to file material. He has not sought leave to do so either. He has simply ignored his obligations and the Court’s orders.
That leaves the Court in the invidious position, which need not and does not preclude the matter proceeding and being determined, of having no evidence whatsoever from the father including as to his financial circumstances. I can only infer from his employment that he has income albeit of unknown quantum.

(b) Whether a party is legally aided

Neither party is legally aided.

(c) Conduct of the parties to the proceedings

These proceedings were necessitated by the children’s retention by the father notwithstanding the existence of final orders which had been in place for some years and which had been made by consent.
The father alleged, when he attended before the Court on the first return date of the proceedings, that he had a number of concerns with respect to the children’s suggested harsh physical chastisement. He also alluded to a number of other matters.
It was on the basis of the father’s allegations that an order was made for the appointment of an Independent Children’s Lawyer.
The only reference to the father’s allegations is that contained in a Child Dispute Conference memorandum commissioned by the Court on the first return date. Within that memorandum the father suggested that he held safety concerns with respect to the mother and suggested that the children had disclosed to him that they had been hit to the face and on the head with kitchen implements, that there had been a history of physical abuse and that a number of other matters of concern with respect to the perpetration or suggested perpetration of physical violence upon the children were his motivation in retaining the children.
What is also clear from the memorandum is the father’s concession that no report or approach was made by the father to the police or relevant welfare authorities nor any medical attention or first aid sought for the suggested injuries.
The mother reports in the same memorandum, consistent with her Affidavit material, that there has been a substantial history of family violence perpetrated by the father upon her and a number of domestic violence orders in place at different points in time as well as concerns raised with their mother by the children with respect to excessive alcohol use by the father including in the children’s presence.
The above matters are only relevant for the purpose of examining the issue before the Court regarding costs being the conduct of the parties with respect to the proceedings and which is set out in s.117(2A)(c) as:
…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.
In these proceedings the father has taken no active step to act upon his suggested concerns. As indicated, he has made no approach to any agency, whether medical or government, for the purpose of reporting his concerns or having them investigated let alone documented. He has not sought any medical assistance or documentation with respect to the injuries which he suggests were reported to him and/or observed.
The father has not done anything in these proceedings to advance his cause other than appearing and raising a number of matters from the bar table which does not constitute evidence but which, as a consequence, led to the order appointing an Independent Children’s Lawyer which was consented to by each of the parties. Put bluntly, the father has sat on his hands and been completely idle.
The father has been ordered, on two occasions, to file documents which would set out the evidence relied upon by him including what, on its face and as is reported in the Child Dispute Conference memorandum, are significant allegations of family violence and abuse within the definitions contained in section 4AB and section 4 of the Family Law Act respectively. The allegations if raised in a the father’s evidence would require the filing of a Form 4 and thus notice to the Department of Family and Community Services. None of that has been possible, nor has the Court been able to discharge its obligations pursuant to section 67ZBB purely as a consequence of the Respondent’s failure to do what would reasonably be expected of him in the circumstances as regards actions in which he would engage prior to the proceedings and, secondly, as he has been ordered to attend to as part of these proceedings.
The father’s non-appearance today adds to what would otherwise appear to be his contemptuous disregard of both these proceedings and the Court’s authority.
In those circumstances I am satisfied that the father’s conduct is such as to establish, of itself, a justifying circumstance. As to whether an order for costs is just and equitable I will return to.

(d) Whether proceedings are necessitated by the failure of a party to comply with previous orders

Clearly these proceedings have been necessitated solely by

Mr Middleton retaining the children in his care contrary to the existing orders made by the Family Court.
Whilst ordinarily one would be loath to criticise a parent who has acted in a manner which they assert is protective, the father has placed no evidence before this Court. He has had more than ample opportunity, nearly four months, to do so let alone a number of orders compelling same.
In those circumstances I accept the mother’s evidence as entirely unchallenged and thus make findings of fact in accordance with her evidence. On that basis there was simply no reason or at least no good reason for the children’s retention.

(e) Whether a party has been wholly unsuccessful

In that regard, it could be suggested that each of the parties has been wholly unsuccessful, as absolutely no change has been effected as a consequence of these proceedings.
However, the Applicant mother did not seek to effect change. She sought to restore arrangements and to effect some minor variation of the existing orders which did not impact upon the substance of their operation.
It is the Respondent who sought to effect substantial change, although he has never placed an Application before the Court which would warrant or entitle the Court’s intervention as an instrument or agent of such change.
In those circumstances, the mother, I am satisfied, could not be described as wholly unsuccessful. The Respondent clearly is.

(f) Whether either party has made an offer in writing

The Court is not advised of any.

(g) Such other matters as the Court considers relevant

The appointment of the Independent Children’s Lawyer was entirely necessitated as a consequence of allegations suggested by the father, in non-admissible fashion, when the proceedings where first before the Court on 19 October 2012, and as then related, albeit not as sworn testimony, to a family consultant, and thus included within that family consultant’s memorandum.
The father has not sought to prosecute those allegations. He has not filed evidence although he has had abundant opportunity to do so. In fact, he has been ordered to do so on not less than two occasions. He has provided no explanation for his failure to comply with those orders.
Thus, as I have indicated, I accept the mother’s evidence it being entirely unchallenged, and thus make findings of fact in accordance with that alleged by her.
On that basis, I am satisfied that the appointment of the Independent Children’s Lawyer has occurred purely as a consequence of the Respondent’s mischief in these proceedings, and I describe it as such, as he has not taken any active step to place evidence before the Court in support of his allegations and thus I reject those allegations.

The father’s suggestion to both the Court and the family consultant as to his basis for retaining the children, in disregard of an order of the Family Court of Australia, is the only reason that the interests of these children have been independently represented in these proceedings.
In those circumstances, I am satisfied not only as to a justifying circumstance for a costs order in favour of the Independent Children’s Lawyer but I am satisfied that an order for costs is just and equitable. Indeed, I am satisfied that an order for costs against the father and in favour of the mother would be justified and just and equitable but no application is made and thus no order will be made.
Whilst I have no specific evidence of the father’s financial circumstances that is entirely as a consequence of inaction by

Mr Middleton.
Whilst the father may suggest (through his attorney) that he has not had specific advice of an application for costs today (nor the quantum sought) I am satisfied that I can and should proceed with that application.
Immediately upon appointment the Independent Children’s Lawyer, in accordance with the usual conditions of Legal Aid funding, advised both parties of the requirement that an application for costs be made in appropriate circumstances.
Secondly, in accordance with the same protocols, each party was requested to have provide a sum of $1,650 to the Independent Children’s Lawyer, to be held by the Legal Aid Commission on trust, on account of the Independent Children Lawyer’s costs. That is a sum less than the quantum sought.
Lest there be any concern held that the father was on notice that costs were an issue in these proceedings, I note that the Amended Application filed by the Applicant on 20 November 2012 sought, inter alia, an order for costs (no doubt in the expectation that Mr Middleton would do that which he had been ordered to do by 16 November 2012, being to file and serve a Response). The relief sought by the mother is set out in two pleaded paragraphs and in the following terms:
(1) The father’s Response is dismissed.
Certainly the mother can be nothing but unsuccessful in that Application as there is no Response to dismiss. As such the mother’s Application is thus undefended. Further, the relief sought by the mother makes clear that she seeks to affect no change top the existing, final parenting orders.
The second order sought by the mother is:
(2) The Respondent pay the Applicant’s costs in these proceedings.
Thus, the Respondent is fully aware that issues as to costs are live before this Court (although the mother does not ultimately press her Application).
The quantum of costs sought by the Independent Children’s Lawyer is far from excessive. The amount of costs that would flow purely from the two attendances in which the Independent Children’s Lawyer has been involved, and by reference to Schedule 1 of the Federal Magistrates Court Rules, being an indicative rather than prescriptive scale, would exceed $600, even if each of the appearances were treated purely as short mentions. If they were treated on any other basis, or any regard had for preparation, clearly an amount in excess of the $1089.90 sought would have been incurred.
In those circumstances, I am satisfied that it is just and equitable for an order for costs to be made and in the quantum sought. The Independent Children’s Lawyer’s appointment has arisen entirely as a consequence of the mischief affected by Mr Middleton in these proceedings and by his actions which precipitated and gave rise to and necessitated the proceedings.
Mr Middleton has done nothing to prosecute a position before this Court or to even place an Application before this Court at any time.
Whilst I have no knowledge of his specific circumstances I am aware, at least, that he is a self-employed person earning an income, and not making any contribution, at this point in time, to the children’s support by way of child support.
That does not obviate against the fact that he provides care for the children each alternate weekend and for other periods of time. However, the absence of evidence which would otherwise create any concern in my mind, or which could establish that the father would suffer financial hardship, is absent, and absent entirely as a consequence of Mr Middleton’s failure to do that which he has been ordered to do, that is, file material.
The Court cannot make an order against a party if the Court is satisfied that that party would suffer financial hardship. I am so satisfied as regards to the mother’s position. She has evidence before the Court, and it is not a complex exercise to extrapolate that an income of $500 to $600 net per week, and with housing costs and the expenses of maintaining a household and parenting at least two children would wholly expend that amount.
I am satisfied that it would be inappropriate, on the basis of the financial hardship which the Applicant would suffer, for any order for costs to be made against her and having found that such an order would create financial hardship I am precluded by s.117(4) from doing so.
Further, there could not be a justifying circumstance for an order for costs as regards the mother. Her behaviour has been beyond reproach. She has brought an Application which she is not only entitled to bring, but would be expected to bring to enforce an existing order of a Court, and to ensure that those within the community, and in this case

Mr Middleton, treat such orders with the respect they deserve and comply with them.
On that basis alone there could be no suggestion that the Applicant has behaved in any fashion that would justify or warrant any order for costs, as regards the Independent Children’s Lawyer or the Respondent (indeed, the Respondent would have no standing to make an Application of any kind with respect to costs as he has no Application before the Court from which costs could flow).
I am satisfied, as indicated, that justifying circumstances exist as regards Mr Middleton, and that it would be just and equitable.
As to whether there is a financial hardship that Mr Middleton would suffer, I have no evidence to establish same. I am satisfied that it is

Mr Middleton’s obligation to establish that which is required by subsection of section 117(4)(b) and not the obligation of the Applicant for costs, the Independent Children’s Lawyer, to disprove the proposition. There is nothing arising from the drafting of the section which suggests a reason to depart from the requirement that “he/she who alleges must prove”.
Lest I am wrong in that regard, I note that the evidence that is available to the Court and to the Independent Children’s Lawyer could not be suggestive of establishing financial hardship as regards Mr Middleton.
For the above reasons I am satisfied that an order should be made as regards Mr Middleton.
Therefore, I make orders as set out at the commencement of this Judgment.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Harman FM

Associate:

Date: 22 February 2013