Hackman & Woolley (No 2)
[2023] FedCFamC1F 825
•29 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hackman & Woolley (No 2) [2023] FedCFamC1F 825
File number(s): ADC 19 of 2021 Judgment of: KARI J Date of judgment: 29 September 2023 Catchwords: FAMILY LAW - COSTS – Where the mother seeks the father to pay the costs of the proceedings as from the date upon which she sought orders to relocate the children from South Australia to New South Wales – Where the mother was permitted to relocate with the children – Where the mother asserts that the father was wholly unsuccessful - Where there was a genuine contest between the parents as to whether or not the mother should be permitted to relocate the children – Where the father’s position was not fanciful – Where relocation was not recommended by the report writer – Application dismissed Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, r 12.17
Cases cited: Hackman & Woolley [2023] FedCFamC1F 339
Hawkins v Roe [2012] 47 FamLR 526
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA158
Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 19 September 2023 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Stanley & Co Counsel for the Respondent: Ms Pangallo Solicitor for the Respondent: Swan Family Lawyers ORDERS
ADC 19 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WOOLLEY
Applicant
AND: MR HACKMAN
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
29 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.That the Application in a Proceeding filed 2 June 2023 be dismissed.
2.That the Response to an Application in a Proceeding filed 12 September 2023 be dismissed.
3.That there be no orders as to costs for the said Application and Response.
4.That the proceedings otherwise be dismissed as finalised.
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 Hackman & Woolley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These reasons relate to a costs application filed by the mother arising from parenting proceedings relating to the parties’ two young children.
The parenting proceedings were finalised with orders made on 5 May 2023 (Hackman & Woolley [2023] FedCFamC1F 339).
For the reasons that follow, no costs order shall be made.
BACKGROUND
The parenting proceedings were commenced by the father on 5 January 2021.
The proceedings were in relation to the parties two children, X, who was four at the time of trial and Y who was two at the time of trial.
The central dispute between the parents related to whether the mother be permitted to relocate the children’s principal place of residence from City C in South Australia to City B in New South Wales.
The parents were otherwise in agreement that regardless of which state the mother and the children were to reside, the mother was to have the primary care of the two children. In the event that the mother remained living in City C with the children, the parents again largely agreed the children’s time spending arrangements with the father, and were able to implement periodic increases to the father’s time spending throughout the conduct of the litigation and the final hearing.
The final hearing itself was heard over a period of 13 separate sitting days across a period of almost a year. The reasons for the drawn out final hearing process are not germane to the determination of the costs application.
The effect of the final orders made 5 May 2023 was that:
(a)The mother was to have sole parental responsibility for the children, on the basis that she consult the father;
(b)The children were to live with the mother;
(c)The mother was permitted to relocate the children to City B, NSW just prior to the commencement of the school year in 2024;
(d)So far as the father’s regular time spending with the children was concerned:
(i)Pending the children’s relocation to City B, time spending was to take place three nights and one full day per fortnight, increasing to four nights a fortnight in May 2023; and
(ii)Following the children’s relocation to City B, time spending is to take place in City B on two occasions each school term for a period of four nights, together with school holiday time in South Australia for seven nights in each of the short school holidays, and a period 21 nights over the Christmas school holidays.
THE COSTS APPLICATION
The mother’s application for costs is found in her Application in a Proceeding filed on 2 June 2023 (‘the costs application’).
By that application, the mother seeks the following orders:
1.That the father forthwith pay the costs of the mother calculated in reference to Schedule 3 of the Court Rules as and from 13 September 2021.
2.That the mother be granted leave to file a further affidavit annexing a calculation of her costs pursuant to Schedule 3 of the Court Rules.
3.That the father pay the mother’s costs of an incidental to this Application.
The significance of the calculation of costs from 13 September 2021 is because on that day the mother filed an Amended Response for final orders in which she sought orders permitting her to relocate to City B with the children.
The father filed a Response to the costs application on 12 September 2023, in which he essentially asked the court to dismiss the costs application, and that the mother pay his costs in relation to his application.
The costs application was heard on 19 September 2023. Both parents were represented by counsel at that hearing, as they had been throughout the final hearing; albeit that they each had different counsel for the purposes of the costs application. Each of the parties had filed written submissions for the costs hearing.
The mother’s itemisation of costs pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’), was set out in an affidavit filed by her solicitor on 11 September 2023. The affidavit was the vehicle for providing the court with a report from a costs expert, Mr Q, solicitor, which is undated, but was said to be received by the solicitor for the mother on 1 September 2023. By that report Mr Q assessed costs pursuant to the scale of $133,880, rounded down to $133,000, comprised of:
(a)Solicitors’ fees of $58,000;
(b)Counsel fees of $75,680;
(c)Experts fees of $200.
In addition to that amount, the mother sought the payment of her costs for the making of the costs application, fixed in the amount of $4,000.
THE LEGAL FRAMEWORK
Costs applications in respect of proceedings under the Family Law Act 1975 (Cth) (‘the Act’) are governed by s 117 of the Act, which provides as follows:
117 Costs
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Note 1: For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division 1), see paragraphs 69(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021.
Note 2: For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division 2), see paragraphs 192(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021.
(2A)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.
As is readily understood from s 117(1), the starting point when considering any application for costs is proceedings under the Act, is that the parties are to each bear their own costs. However, if the court is of the view that there are circumstances which “justify” the making of an order for costs, with regard to those factors set out in s 117(2A), then and order for costs can be made.
When regard is had to those factors set out in s 117(2A), the court may give such weight as it considers appropriate to any relevant factor.[1] As properly identified by the mother’s counsel, the discretion to make a costs order is broad, and there is nothing that prevents any factor prescribed by s 117(2A) being the sole foundation for the making of a costs order.[2] Equally, nor is there any factor in s 117(2A) that requires the court to make an order for costs.
[1] Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24].
[2] PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA158 at [41]
In addition to the provisions in s 117, the Rules also provide assistance when considering the making of an order for costs. In particular, r 12.17(1) which sets out the method for the calculation of costs:
12.17 Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a) of a specific amount; or
(b)as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
In addition, r 12.17(3) sets out the matters that may be considered in the calculation of costs:
(3)In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c)the rates ordinarily payable to lawyers in comparable proceedings;
(d)whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceeding, or in complying with pre-action procedures;
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
DISCUSSION
The parties’ respective financial circumstances
The parties’ financial circumstances are in stark contrast to one another. The father is presently working on a FIFO basis earning over $190,000 per annum. The mother on the other hand is reliant on social security benefits.
Counsel for the mother argues that the “wealth disparity” of the parties weighs strongly in favour of the making of an order for costs in her favour.
However, as the mother’s counsel properly points out this factor alone is not “independently decisive”.[3]
[3] Mother’s written submissions filed 19 September 2023, paragraph 10.
Conduct of the parties in relation to the proceedings
Counsel for the mother made strong submissions relating to the conduct of the father, and his family, throughout the litigation as another basis to make an order for costs.
As per the mother’s written submissions filed on 19 September 2023, the mother’s position is that:
16. Conduct of the father’s case at trial was the subject of explicit judicial condemnation at [78]-[96], with the damning finding at [95] that “the paternal family had little regard for the mother, and that collectively, they would stop at nothing in their criticism of the mother”.
The court accepts that the reasons bear out strong criticisms of the father and the paternal family, not only so far as the evidence that they gave, but also as to the manner in which the father’s case was run. In particular, comment was made at [74] – [75] as follows:
74.In that context, what was most concerning for the Court was that the paternal family considered it necessary to air every conceivable grievance, concern and confidence they had shared about or with the mother, whether relevant or not, in order to oppose the mother’s relocation, with little thought or care of the impact of doing so upon the mother, and her ability to remain living proximate to the father and the paternal family in South Australia.
75.This approach was all the more concerning and confounding in circumstances where the position of the father was always (at least from the time of Ms P’s appointments in August 2021), that the mother should continue to have the primary care for the children. This position necessarily meant that the father’s case was not ever one that the children were at risk of harm in the mother’s care.
Whether any party has been wholly unsuccessful in the proceedings
The mother contends that the father has been wholly unsuccessful in the proceedings.
In the sense that the father unsuccessfully opposed the mother’s application to relocate the residence of the children to City B, that is correct.
Such other matters as the court considers relevant
That these are parenting proceedings, involving the relocation of children is a factor that weighs heavily. It is hard to comprehend that in proceedings of this nature that the potential for compromise which avoids a final hearing with all its stressors and costs, is one that is easy to reach. This is because in any proceedings where a parent wishes to relocate the residence of the children, invariably regardless of the final outcome, one of the parents will achieve their ultimate outcome; here either the mother would have been permitted to relocate or alternatively the father would have been successful in preventing this from occurring.
Put differently, there was a genuine contest between the parents as to whether or not the mother should be permitted to relocate the children. The father’s position was not fanciful. He genuinely considered it to be in the children’s best interests that they remain living proximate to him and the paternal family.
Moreover, in advancing his position, the father found support in the recommendations made by the family report writer, who in her report did not support the children’s relocation with the mother to City B.[4]
[4] Family Report of Ms P dated 23 August 2023, paragraphs 95–105.
The father’s counsel referred the court to the Full Court decision in Hawkins v Roe [2012] 47 FamLR 526, and in particular the comments at [14] and [146] – [147], as follows:
14.In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.
…
146.While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father’s conduct of his case at the trial. Counsel for the mother conceded in oral submissions before us that at no point during the trial did his Honour direct the father to cease repetitive questioning, or to move his questioning more quickly, for example.
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.
In all of the circumstances of these proceedings, these comments by the Full Court are apposite.
In addition, as readily conceded by the mother’s counsel during the costs application hearing, if the father chooses to take up the opportunity to travel to City B twice a term, as provided for in the orders, there is a cost involved in doing so. While those costs are not clear, I am troubled that the making of any order for costs, particularly in the amount sought by the mother, may act as an inhibitor to the father taking up every opportunity possible to travel to City B to spend time with the children.
Conclusion as to whether a costs order should be made
For all of these reasons I have discussed, I do not consider it appropriate to make an order for costs in relation to the substantive proceedings.
I equally do not consider it is appropriate to make any order for costs in relation to the costs proceedings.
I now make those orders that appear at the commencement of these reasons.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 29 September 2023
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