Hamidi and Allaway and Anor (No 2)

[2016] FamCA 624

FAMILY COURT OF AUSTRALIA

HAMIDI & ALLAWAY AND ANOR (NO 2) [2016] FamCA 624

FAMILY LAW – COSTS – where undefended parenting proceedings – where orders made in favour of father – where mother has significant disentitling mental health and other issues – where father seeks costs on indemnity basis – where discussion as to general principles – where mother ordered to pay one half of single expert’s fees – where otherwise father’s application for costs dismissed. 

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Hawkins & Roe [2012] FamCAFC 77
Penfold v Penfold (1980) 144 CLR 311
Kohan & Kohan (1993) FLC 92-340
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 at
Bele & Vaughan (Costs) [2012] FamCAFC 198
Hamidi & Allaway and Anor [2014] FamCA 625
Hamidi & Allaway and Anor [2016] FamCA 447

APPLICANT: Mr Hamidi

FIRST RESPONDENT:

SECOND RESPONDENT:

Ms Allaway

Department of Family and Community Services

FILE NUMBER: PAC 3361 of 2014

DATE DELIVERED: 5 August 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 July 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ryan & Seton Lawyers

Orders

1. That within one month from this date the mother pay to the father, or as he may otherwise direct in writing, the sum of $5,390 and that sum together with interest accrued, if any, be a charge against the mother’s share of the proceeds of sale of the home at P Street, G Town until paid.

2. That otherwise the father’s application for costs be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamidi & Allaway and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3361  of 2014

Mr Hamidi

Applicant

And

Ms Allaway

First Respondent

And

Department of Family and Community Services

Second Respondent

REASONS FOR JUDGMENT

1. The application for determination is the father’s application for costs arising from parenting proceedings that proceeded to hearing ultimately on an undefended basis in the absence of the mother.

Costs

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.

2. That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.

3. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.

4. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relevantly, in these proceedings, relate to the following:

   a)The financial circumstances of each of the parties to the proceedings;

   b)Whether any party has legal aid and the terms of any grant of aid;

   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 answers, 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.

5. The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:

   18. The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “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”. That is not, to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:

   … A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs. (emphasis added)

Indemnity Costs

1. It is usual for the Court to make an order for costs on a party/party basis.

2. Provisions of the Family Law Rules 2004 (Cth) (“the Rules”), particularly r 19.18, provides for the method of calculations of costs. That rule provides as follows:

   (1)  The court may order that a party is entitled to costs:

   (a)  of a specific amount;

   (b)  as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

   (c)  to be calculated in accordance with the method stated in the order; or

   (d)  for part of the case, or part of an amount, assessed in accordance with Schedule 3

3. The rule further provides, in subparagraph (3), that:

   In making an order under subrule (1), the court may consider:

   (a)       the importance, complexity or difficulty of the issues;

   (b)      the reasonableness of each party’s behaviour in the case;

   (c)      the rates ordinarily payable to lawyers in comparable cases;

   (d)      whether a lawyer’s conduct has been improper or unreasonable;

   (e)      the time properly spent on the case, or in complying with pre-action procedures; and

   (f)       expenses properly paid or payable.

4. The Court has jurisdiction in its discretion to make an order for costs on an indemnity basis and the purpose of such an award is to more fully or even wholly repay to a party all, or at least the majority, of their legal costs and disbursements and charges incurred in the proceedings.

5. In Kohan & Kohan (1993) FLC 92-340 at 79,611 the Full Court recognised that there is nothing in the Act which inhibits the making of an order for indemnity costs. However, while acknowledging there is a discretion “in an appropriate case” to make an order for indemnity costs, the Full Court also said:

   … it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties. This impact is a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under s117(2A)(a), or perhaps even more as a relevant matter under paragraph (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.

6. Then at 79,614 the Full Court said:

   The intent of s 117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the Court may make such order as the Court considers just. As we have pointed out, the court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O.38 r. 2, the provisions of O.38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client.

   O.38 r.7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v Wright (No 2) [1983] 2 NSWLR 354; Wentworth v Rogers (No. 5) (1986) 6 NSWLR 534; Hobartville Stud v. Union Insurance Co. (1991) 25 NSWLR 358 at 368 to 370.

7. The category of cases in which an award of an indemnity costs order may be appropriate are not closed and the Full Court of the Family Court observed in Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 at [31]:

   … It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such order is sought.

8. Strickland J in Bele & Vaughan (Costs) [2012] FamCAFC 198 at [26] to [28] on this issue encapsulated the relevant legal principles as to indemnity costs:

   26.      A useful recent discussion of the question of indemnity costs is to be found in the decision of the Full Court in D & D (Costs) (No 2) (2010) FLC 93-435. There the Full Court reviewed extensively earlier authorities including Limousin v Limousin (Costs) (2008) 38 Fam LR 478 and Kohan and Kohan (1993) FLC 92-340, and also Sheppard J’s decision in Colgate-Palmolive Co & Another v  Cussons Pty Ltd (1993) 118 ALR 248.

   27.      The ordinary rule is that an order for costs is calculated on a party/party basis, and it emerges from the authorities referred to above that to depart from that rule exceptional circumstances need to be demonstrated.

   28.      As to what might constitute an exceptional circumstance, reference can be made to the oft-cited decision of Sheppard J in Colgate-Palmolive Co & Another v Cussons Pty Ltd where his Honour detailed circumstances that might qualify.  Usefully, Holden J in Munday v Bowman (1997) FLC 92-784 at 84,660 drew from the decision of Sheppard J the following examples:

   (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 (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397).

   (b)      Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra)).

   (c)      Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v. Keeprite Australia Pty. Ltd (unreported, Federal Court,
   3 May 1991)).

   (d)      The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)).

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

Discussion

1. As was observed by May and Ainslie-Wallace JJ in Hawkins & Roe (supra):

   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.

2. It also hardly needs to be said that the issues for determination in parenting cases differ substantially from financial matters as to the division of matrimonial property.

3. The father commenced proceedings in July 2014.

4. On 21 July 2014 orders were made, with the mother present, for the subject children to live with him and the children to spend no time with the mother. In her Reasons for Judgment (Hamidi & Allaway and Anor [2014] FamCA 625) Hannam J observed:

   17.      In May 2014 the father says that the Department of Family and Community Services intervened and took E into care. It does not appear to be a matter in dispute that she is currently under the parental responsibility of the Minister but placed with the father. Certainly it appears apparent from the material, which is undisputed, that is material put before the Court annexed to the father’s affidavit that comes from the Department, that the allegations relate to significant risk of harm factors in the mother’s home, including drug taking, neglect and possible mental health factors.

5. On 21 July 2014 the matter was also before a Registrar who noted that there were Children’s Court proceedings pending in relation to the youngest child who had been removed from the mother by the Department of Family and Community Services. The mother was ordered to file a Response to the father’s application within 14 days.

6. The mother failed to file a Response as ordered and failed to appear on 1 September 2014. On that day it was ordered that the Department have leave to intervene in the proceedings.

7. On 3 October 2014 the mother was in attendance and further orders were made by consent in summary as follows:

   a)That the Department and the father have equal shared parental responsibility for the youngest child (aged 15 months); and

   b)That the mother spend supervised time with the child as arranged by the Department.

8. On 11 November 2014 the mother was again in attendance. She was ordered to file her Response that day and in default of her doing so the matter may proceed to undefended hearing.

9. On 2 December 2014 the mother appeared before the Registrar. The matter was stood over.

10. On 15 December 2014 Dr K was appointed Single Expert with the father to pay his fees in the first instance and the ultimate liability for same to be reserved.

11. On 9 November 2015 the matter was listed for release of the Single Expert report. The mother was initially in attendance in person on her own. The report was released to the father, the Independent Children’s Lawyer and the Department. Release of the report to the mother was delayed until she could be accompanied by a support person being her adult son. The matter was stood over to 25 November 2015.

12. On 25 November 2015 the mother appeared with her support person. The report was released and the matter stood down to allow the mother to consider the report. The matter was called on again at about 11.00am. The mother had left the court building and could not be found.

13. The matter was listed for hearing on 26 February 2016 with the mother to be notified that if she did not appear the matter would be determined in her absence. Directions were made for filing of affidavit evidence.

14. On 26 February 2016 the mother appeared in person. She had filed no affidavit evidence. She was ordered to file any affidavit to be relied on by her by 6 May 2016 and in default of her failing to do so the matter would proceed to undefended hearing. The mother was to file and serve a Minute of her proposed orders as to parental responsibility and the children’s time with her, it being noted that there was no issue as to the children living with the father. Costs were reserved.

15. The matter proceeded to final hearing on an undefended basis on 24 May 2016. The mother was present in court at 10.00am and left the court precincts shortly thereafter.  Reasons for Judgment were delivered and final orders made on 7 June 2016 in the following terms:

    (1)     That the father have sole parental responsibility for the children [D] born … 2001, [B] born … 2003 and [E] born … 2013 (“the children”).

    (2)     That the children reside with the father.

    (3)     That the children spend time with and communicate with the mother as agreed between the mother and father in writing and in default of agreement as follows:

    (a)        As to the child [E] for two hours per month supervised at a Contact Centre with such time as far as possible to be in the company of the older children [D] and [B] provided that when [E] reaches the age of 12, with the father’s agreement there be the option of [E’s] monthly two hour supervised visit with the mother occurring outside of the Contact Centre, and supervised by an adult person acceptable to both parents, who might be one or both of the older children [D] and [B] or failing agreement by a contact supervision service such as [H Centre] and provided that provided that  from age 14 the child be able to attend only each alternate monthly visit at her discretion.

    (b)       As to the older children [D] and [B] for two hours per month supervised by a person agreed by the mother and father and failing agreement by a contact supervision service such as [H Centre] with such time as far as possible to be concurrent with the child [E’s] time with the mother and provided that from age 14 (including [D] currently), each child be able to attend only each alternate monthly visit at their discretion.

    (c)       That the cost of supervision be shared equally by the mother and father.

    (4)     That the mother and father do all things necessary to:

    (a)        contact the [I] Contact Service, … (“the Contact Centre”) within 14 days and arrange an appointment for assessment for suitability for supervision of the time the child E spends with the mother;

    (b)       attend the assessment;

    (c)       comply with any appointments made by the Contact Centre for supervised time;

    (d)       comply with all reasonable policies and rules of the Contact Centre; and

    (e)       comply with all reasonable requests or directions of the staff of the Contact Centre.

    (5)     That if after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the child [E] is to have contact with the mother at times nominated by the Contact Centre and such contact is to occur at the Contact Centre.

    (6)     That the father must deliver the child [E] to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

    (7)     That in the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 3(a) then contact shall occur at the times that are offered by the Contact Centre.

    (8)     That the parties or either of them are to attend and undertake any course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.

    (9)     That the time the child [E] spends under Order 3(a) is to be supervised by the Contact Centre and each of the parents must pay one half of any reasonable fees for the supervision on each occasion of supervision.

    (10) That the mother must not attend the Contact Centre or its vicinity before the time with the child [E] is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child [E] is to end.

    (11) That the period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

    (12) From the age 16, each child be able to spend time with the mother outside of the supervised times, for a maximum of one day per fortnight and not including overnight time, and in a manner determined by the child in collaboration with the mother, including the setting of the time and the presence of other persons such as one or both of the half-siblings with such time only to be initiated by the child, not by the mother, and to be planned in transparent collaboration with the father.

    (13) That the father use his best endeavours to ensure that the childrens’ supervised time with the mother be proximate to and if possible on special days such as Mother’s Day, the mother’s birthday, the children’s birthdays and the Christmas festive period and in the event that it is not possible for the children to spend time with the mother on such special days then the father facilitate the children having telephone contact with the mother on those days.

    (14) That subject to the father’s agreement the children’s older half-brother and half-sister be at liberty to attend on occasions when the children are spending time with the mother in accordance with these orders.

    (15) That the mother and father be restrained from consuming or being under the influence of illicit drugs within 12 hours of caring for or spending time with the child [E].

    (16) That the mother and father be restrained from making critical or derogatory remarks about the other in the presence or hearing of the child [E].

1. In the Reasons for Judgment (Hamidi & Allaway and Anor [2016] FamCA 447) the following appears:

   29.      As to the mother’s mental health, [Dr K] says:

   86.     The mother appears to have a psychotic disorder, present at least from May 2014, and evident recurrently since that time including in August 2014, January 2015, and on the day of interviews with myself in August 2015.

   87.     I think it likely that the mother has the DSM 5 diagnosis of Schizophrenia, that is a persisting psychotic disorder.

   88.     I note that the mother’s initial brief hospital admission in May 2014 appeared to be associated with stimulant intoxication, appeared to resolve rapidly, and was diagnosed a drug-induced psychosis.

   89.     But, subsequent relapses into psychotic symptoms in the mother were not clearly linked to stimulant drug use, and persisted for weeks rather than days, suggesting that the mother has developed a psychotic disorder that is existing independently of any intermittent drug use. 

   90.     It is possible that the mother’s stimulant use in May 2014 was in part a result of the onset of psychotic disorder, with associated disinhibition and loss of judgement, rather than the stimulant use causing the psychotic disorder.

   91.     It is not uncommon for a psychotic illness initially diagnosed as drug-induced psychosis to progress to schizophrenia. The impact of this progression in terms of the mother’s prognosis is that whilst ongoing drug use will worsen the mother’s symptoms, abstaining from drug use will not guarantee a recovery.

   92.     It is possible that rather than schizophrenia, the mother may prove over time to have a diagnosis of bipolar disorder with manic episodes with psychotic features, or of schizophreniform disorder (the latter being a mix of schizophrenia and bipolar disorder). The differentiation between these diagnoses tends to become clear over a number of years. The differentiation is not central to the matters before the court, as all are persistent psychotic disorders, which carry significant burden of dysfunction and of risk, particularly in the context of the mother’s associated personality vulnerabilities, discussed below...

   …

   94.     The mother’s psychotic symptoms and associated behaviour as described above, disrupted her capacity to care for the children, in particular [E], and at times placed the children, in particular [E], at acute risk. I note the following:

   94.1. Police on 30th May 2014 describe finding [E] at home alone, in a soiled nappy, crying. There was a smell of urine, associated with many wet nappies on the upstairs bathroom floor. Syringes, blackened foil, and spoons were found in all rooms. There were used cigarettes on the floor. Wires hung down from the ceiling, and there were holes in the wall.

   94.2. CS staff visiting the mother’s home (where the mother had been living with [E] in her care for the prior 2 weeks), described finding buckets around the house, with 10cm of water in them. In the bath was old bathwater, with what appeared to be infant human faeces in it. The home was “in disarray”, with dirty dishes, holes in the walls, and piles of clothing. The staff found a box of syringes in the master bedroom. The mother at that time told CS staff that she posed no risk to the child, and that the syringes were used for her to apply a self-tanning product. She declined to engage in the making of a safety plan…

   …

   102.  The mother’s presentation at interview was consistent with her experiencing a psychotic illness. This was not immediately apparent, and her agitation and reactivity might have been put down to her personality vulnerability and the stressful context.

   103.  But, as the day continued, it became clear that the mother was struggling with delusional thinking…

   …

   118.  At interview, the mother denied any history of significant past or current use of illicit drugs.

   119.  I think it likely that the mother has practiced intermittent benzodiazepine abuse, as a means of attempting to manage her own emotional distress. Such abuse can functionally incapacitate the mother in the short term, through inducing disinhibition, drowsiness or deep sedation. It tends to worsen emotional distress in the medium to long-term, and disrupt the development of healthy coping mechanisms.

   120.  At interview, the mother described using excess benzodiazepines, obtained through a friend and friend’s doctor. 

   121.  The mother said, “I was high strung… physically… I got… like… I was on Valium for a while… I went to my friend’s doctor… he gave her something to sleep… he suggested I try that… just like… and I got some off her… they were blue… she had a large box of it… I don’t have any more… I haven’t been back to him”.

   122.  Intermittent maternal self-regulated use of benzodiazepines would place [E] at significant risk in maternal care, because of the risk of maternal oversedation and hence inadequate monitoring and protection and care of the child.

   123.  I think it likely that the mother has engaged in intermittent stimulant abuse, at least since May 2014. It is possible that the mother has developed an ongoing stimulant dependence, with regular heavy daily use, but I think this unlikely and think it more likely that the mother’s stimulant abuse has been an exacerbating factor for the mother’s psychotic disorder (and one that markedly increases risk of sudden and absolute functional decompensations), but not the driver of that disorder.

   124.  With regard to stimulant drugs, the mother denied any use prior to the father leaving her for his current partner. After that, “I tried… I did try… Ice… it was left in my home, and my son went away…I have no memory of what happened… I was in the house with my daughter… the neighbours were coming, asking, can they buy the house… coming into the house”, and “I went over to the pub, and spoke to the guys and girls in the alleyway… I don’t even remember how I got home…when Alan was away, I talked to a guy and girl, and they came over”.

   125.  I asked again about the mother having “tried” Ice. The mother said, “well I thought that after I went into hospital… I was found running on a road… but I don’t use it… I do drink ‘Red Bull’ [a caffeine drink]”.

   126.  When the mother was seen with the children, she said to them, “On one occasion, I became weak… I succumbed to using a drug… because I felt that there was no way out… and then I went in hospital, and [E] came to you… but I don’t take drugs… that was weak of me”…

   30.         [Dr K] was of the opinion:

   133.          It is my impression that the mother has longstanding significant personality dysfunction, with borderline and histrionic (DSM 5 “cluster B”) personality traits...

   And:

   139.  In terms of histrionic personality style, the mother can show excessive emotionality and attention-seeking…

   And:

   141.  The mother has shown an overall personality immaturity expressed as a coercive hostile dependence upon others, which has been perpetuated in the long term by the ambivalent accommodation of others (including the father, the two half-siblings, and the older 2 subject children) to the mother’s needs…

   And:

   154.  I have described above two pathologies in the mother: firstly, the psychotic illness schizophrenia, and secondly personality dysfunction. At one extreme, it is possible that the mother has been burdened with a longstanding undiagnosed psychotic and/or mood disorder and that her apparent personality dysfunction has arisen from the symptoms of that disorder, including the symptoms of paranoid ideation and instability of thought and mood. At another extreme, it is possible that the mother’s main difficulty has been that of a severe personality disorder, and that her psychotic illness is a more recent addition, coming on only since mid-2014 and perhaps precipitated by dysfunctional coping mechanisms including stimulant drug use.

   155.  The truth will lie between these two extremes. My impression is closer to the latter, i.e. that the mother has had a longstanding personality disorder with associated genetic predisposition to mood instability and persecutory ideation, then has decompensated into a frank psychotic illness with the triple stress of the pregnancy and birth of [E], the separation from the father and his repartnering, and the father’s withdrawal of financial and material support from her.

   156.  The prognosis for symptomatic and functional recovery for the mother is poor.

   157.  If the mother had the personality strength that allowed her to take responsibility for her own circumstances and to constructively engage in treatment and rehabilitation, then her prognosis might improve. But, she has not shown such personality strength to date, and I feel is unlikely to do so.

2. It is clear that the mother has struggled with these proceedings by reason of her mental health, a circumstance known to the father, and her lack of engagement can be seen in that context.

3. Service of the present application for costs has been affected at the mother’s address for service.

The Relevant Factors

1. The mother’s financial circumstances are such that whilst she is a bankrupt she will, after clearing her debts on sale of real property at G Town, expect there to be a surplus to her of about $80,000. The other half of the proceeds of sale will be paid to the father. The mother will have the capacity to meet an order for costs.

2. Neither party is in receipt of legal aid.

3. The mother has caused inconvenience and expense by reason of her failure to comply with orders as to filing and on occasions absenting herself from court events. The mother failed to attend upon the Single Expert occasioning additional fees being paid by the father of $1,980 on top of the report fees paid by him of $8,800.

4. The mother was in general terms wholly unsuccessful in terms of orders that she initially sought. Yet, late in the proceedings she conceded that the children should live with the father.

5. Otherwise these proceedings have been overshadowed by the mother’s unfortunate mental health and drug abuse issues, perhaps clouding her acceptance as to the reality of what would inevitably be the outcome. 

6. The father paid the single expert fees initially as the mother asserted impecuniosity until the matrimonial home was sold. The Rules provide for the parties to pay equally the single experts fees: Rule 15.47. In the circumstances it is appropriate that the mother be ordered to pay to the father one half of the Single Expert’s fees in the sum of $5,390.

7. Otherwise in the circumstances of this matter as discussed above the general rule is not displaced and it is not appropriate that there be an order as to costs. It is thus unnecessary to consider the further issue as to whether costs should be on an indemnity basis.

8. Orders will be made accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 5 August 2016.

Associate: 

Date:  5 August 2016