HALLEY & HALLEY

[2012] FamCA 299

FAMILY COURT OF AUSTRALIA

HALLEY & HALLEY [2012] FamCA 299

FAMILY LAW - PRACTICE AND PROCEDURE - Section 118 order where applicant filed Notice of Discontinuance after respondent filed response - Indemnity costs appropriate

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT: Ms Halley

RESPONDENT: Mr Halley

FILE NUMBER: MLC 13613 of 2007

DATE DELIVERED: 29 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 February 2012

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT: Kordell Lawyers

Orders

1. On the response of the husband filed 12 December 2011 (the application of the wife having been discontinued), the wife is restrained from pursuing any proceedings under the Family Law Act 1975 (Cth) as against the husband in relation to parenting orders without further leave of the Court.

2. That the wife pay to the husband his costs fixed in the sum of $8514.

3. That the response of the husband filed 12 December 2011 is otherwise dismissed.

4. That the reasons this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Halley & Halley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13613 of 2007

Ms Halley

Applicant

And

Mr Halley

Respondent

REASONS FOR JUDGMENT

1. On 22 November 2011, Ms Halley who, for my convenience, I shall refer to as the wife, filed an application seeking orders of the parenting nature.  The respondent to the application is Mr Halley and again, for my convenience, I shall refer to him as the husband. 

2. The application sought simple orders that the children commence twice weekly supervised contact at a contact centre in Ballarat and that the husband be restrained from relocating the children from the state of Victoria. 

3. Innocuous as that application might appear, this case has a long and tragic history in this court, that application follows on from contested proceedings in 2010, which culminated in a judgment in 2011. 

4. There are three children of the relationship of the husband and the wife.  There were extensive proceedings about those children in the Federal Magistrates’ Court in 2009.  The matter was ultimately transferred to this Court and Mushin J heard a parenting case over four days in August 2010 during which his judgment shows that the mother, who was unrepresented, left the court prior to the conclusion of the proceedings. 

5. His Honour gave reasons for orders on 17 February 2011, the only relevance of those judgments to the application I have before me today is that his Honour noted that it was unfortunate that he had to make findings of credibility, and he did so against the wife in very direct terms maintaining that he felt that the problems were related to the wife’s psychological and emotional health.

6. His Honour went on to give a long set of reasons as to why he was making orders.  He said, for example, that the wife’s parenting of the children was flawed because the children had expressed significant misgivings and were highly ambivalent about the relationship with their mother.  The mother had been physically, psychologically and emotionally abusive to the children and that her own perception of the needs of the children and insight into her own shortcomings, lack any understanding.  He went on to make other statements about the fact that the mother regularly undermined the relationship between the children and the husband. 

7. His Honour then ended those factors by saying that he felt there was no realistic prospect of the wife improving her attitudes and behaviours.  His Honour then went on to say that he thought that the expert evidence had given her a pathway for the future.  He concluded by saying that making an order for the wife to spend time with the children ran a substantial risk for the children which he had found to be abusive and that it had continued unabated. 

8. In the course of his reasons, his Honour noted that he had raised the question of whether an application should be made for an order under s 118 of the Family Law Act 1975 (Cth) (“the Act”) against the wife, precluding her from bringing further proceedings without leave of the court but ultimately, as I read his Honour’s judgment, the decision by the husband on that issue was not pressed.

9. That was the background that gave rise to orders under which his Honour gave the husband sole parental responsibility for the three children and ordered that they live with him. 

10. Most importantly, his Honour said there was to be no face-to-face contact between the mother and the children and she was given very limited telephone contact with them. 

11. In that setting, time has now gone by and the application of 22 November arises. 

12. When she filed her application, the wife also filed an affidavit in support of it.  In simple terms, the wife says that she was a highly skilled and loving parent and that the children had always been a priority in her life.  She then made reference to a child who was born subsequent to the conclusion of the orders and indicated that that child has had significant difficulties.

13. It was the wife’s assertion that the husband did not make any attempts to encourage a relationship between she and the children and that each time she had made an application to the husband for contact, she had been refused.  She went on to say that she had emailed the children each month and there had been some limited discussions over the period of the last 12 months.  She then said that she knew her children missed her as much as she missed them. 

14. I have mentioned the child who was born subsequent to the proceedings who I am told is not a child of these parties.  It was the wife’s statement that the children have a strong desire to meet this child and that getting to know their sister was an important part of bonding with her and accepting her existence.

15. The wife said she had seen school reports and the children were not up to their usual standard at the end of semester 1 in 2011 and she had concerns regarding the mental and emotional stability of the children.  She said she had been and spoken to the Department of Human Services and was told that that was a matter for the court.  She does not set out the details of that discussion with the department any further.  She then said that she had concerns that there was no one in a position to act as an advocate for the children at times where they wanted to communicate with her. 

16. In the second part of her application she sought an injunction against the husband from relocating.  She said that she understood the husband was employed in the resources industry and she feared that her children would be taken out of Australia and relocated to an unknown destination within the United Kingdom.  No basis for that assertion was made. 

17. The application having been filed, it was served because on 12 December 2011 the husband filed a response. Apart from seeking a dismissal of the application of the wife, he sought not only an order under s 118, but also an order for indemnity costs. He also sought an order for security of costs that now becomes unnecessary.

18. I have presumed that the wife received the response document and read it.  On 7 February 2012, the wife filed a Notice of Discontinuance of the whole of the application she had filed. 

19. It is important to recognise that the document the wife filed had been one that she had prepared herself.  On the very face of the document there is a notation that reads:

    Filing this notice does not prevent any other party from continuing with their case and obtaining orders, including for costs.

20. I am entitled to presume that the wife was aware (by virtue of the husband’s response) of the prospect that the husband might continue and seek the orders that he actually set out in the response.

21. The matter has been called today and there has been no appearance by or on behalf of the wife.  The husband who is now in Perth, for employment purposes, has gone to the trouble of having a solicitor not only prepare material for him but engage counsel at his expense. 

22. I have an affidavit filed on 28 February by the husband’s solicitor in which is set out the costs that have been incurred together with a copy of the cost agreement and a reference to the s 118 application.

23. Section 118 of the Act is there for a purpose. It is to stop vexatious or abusive applications that would unnecessarily involve parties in proceedings. It is not a denial of access to justice, because the very provision enables the court to control whether or not a respondent to such an application should be brought in to participate in proceedings having regard to what the applicant seeks. It is an opportunity for the applicant to explain to the court that there is a justiciable issue.

24. In this case, had a s 118 order been made in 2011, the wife would possibly have had to face the prospect that she would have to overcome the rule in the decision of Rice and Asplund (1979) FLC 90-725.

25. It seems to me that having regard to the costs that the husband has incurred, the findings of Mushin J, the evidence that the wife was intending to present to the court on this occasion, the husband’s response and the sudden abandonment of the application in February 2012, I can find that this is a vexatious application and one that if allowed to continue, would be an abuse of the process.

26. This is a clear example of a case where in future, the wife should obtain the permission of the court based upon grounds justifying that there is an action to be heard. 

27. Accordingly, I think there are sufficient circumstances to make an order under s 118 of the Act. It has been drawn to my attention that on 27 February 2012 the solicitor for the husband wrote to the wife indicating that there would be an affidavit filed in relation to what is, unashamedly, the costs application. That makes clear that the husband would be pursuing his costs application for the hearing on 29 February. There is no reference in the letter to the fact that he was also continuing to proceed with the application under s 118 of the Act.

28. Counsel for the husband quite properly points out that, in her view, it is a matter for the court and s 118 makes clear that it is an application that can be moved at the court’s own motion. In my view, this is a case where it having been raised in 2010 and 2011 before Mushin J and having regard to what I have just said, this is a case where even if the husband was not pursuing it, the court should make an order.

29. I turn then to the question of the costs.

30. Section 117 of the Act provides that in proceedings each party shall bear their own costs unless there are circumstances that justify a departure from that principle and if the court is contemplating such a departure, it must take into account the matters set out in s 117(2A) of the Act.

31. The first step, therefore, is to look at whether or not there are circumstances that justify a departure from the principle.  Having regard to all of the matters that I have set out above, and in particular, the fact that the wife would have needed to show that there has been some significant change of circumstances to justify a revisiting of the parenting issues because of the findings of Mushin J, there is a circumstance that justifies the departure from the principle that each party pays their own costs.

32. Section 117(2A) requires the court to take into account the financial circumstances of all parties. I am not aware of the husband’s current financial circumstances are and I do not think that it matters because the focus should be on the question of the wife’s circumstances more so than those of the husband.

33. The husband receives minimal child support and on the basis of that assessment the wife’s income was shown at about $16,000.  The husband has incurred something in the vicinity of $8514 which is that sum set out in the affidavit of his solicitor but also counsel’s fees for attendance here today.

34. The other matters in s 117(2A) include a consideration of whether or not someone has complied with court orders. There is no suggestion here that the wife has not complied with orders. The Notice of Discontinuance acknowledged an awareness that the husband might seek, at least, his costs in relation to the proceedings.

35. The wife has been wholly unsuccessful having regard to the notice to which I have referred.  Because of the very clear indication in the husband’s response, I can presume that the wife has been wholly unsuccessful.

36. In those circumstances there is a justification for an order for costs. 

37. The provisions of the Family Law Rules 2004 and in particular the third schedule provide that if a court is to make an order for costs then the schedule should normally be that which applies. The exception to that rule as in all cases, is that a court is entitled to depart from that principle and make an order for indemnity costs if it thinks that the circumstances are appropriate. The categories of cases in relation to which indemnity costs will be ordered are not closed. Each case must be determined on its own circumstances.

38. This is a case where on the material provided by the wife there was no merit having regard to what Mushin J had said in his reasons for judgment.  The wife would have had to on any view, at least have reconsidered her position and faced significant opposition from the husband.  This is a case that was doomed to fail and in those circumstances it is a case where an order for costs should be made so that the husband is not out of pocket for something that was completely beyond his control. 

39. In those circumstances I shall make an order for indemnity costs and I fix those in the sum of $8514. 

I certify that the preceding Thirty Nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 February 2012.

Associate: 

Date:  17 April 2012