Hefferon and Maltby (No 2)

[2010] FamCA 685

FAMILY COURT OF AUSTRALIA

HEFFERON & MALTBY (NO. 2) [2010] FamCA 685

FAMILY LAW – COSTS APPLICATION  – Application dismissed

Family Law Act 1975 (Cth) ss117(1), 117(2), 117(2A)

Penfold and Penfold (1980) 144 CLR 311

APPLICANT: Ms Hefferon

RESPONDENT: Mr Maltby

FILE NUMBER: ROC 625 of 2009

DATE DELIVERED: 6 August 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: Hearing on the papers

REPRESENTATION

THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	Ms Nikou SC

SOLICITOR FOR THE RESPONDENT:

Ms Rogerson

Richard Calley Family Lawyers

Orders

IT IS ORDERED

1. The father’s applications for costs of and incidental to the mother’s application filed on 26 October 2009 (save as to costs ordered by Jarrett FM on 23 March 2010) is dismissed. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: ROC 625/ 2009

MS HEFFERON

Applicant

And

MR MALTBY

Respondent

REASONS FOR JUDGMENT

Background

1. On 26 October 2009 the mother filed an application in the Federal Magistrates Court for an order under s118(2) of the Family Law Act 1975 (Cth) that an order made by Mushin J on 4 May 2005 be “discharged” to enable the mother to bring new proceedings concerning the child A born in March 1995 and other orders. The mother’s application for discharge of the order was expressed to be brought ex parte.  However, it was served on the father on 4 November 2009 and he filed a response on 11 February 2010.

2. On 16 February 2010 the matter was listed before Jarrett FM who on 23 March 2010 transferred the mother’s application to this Court for reasons which he then gave and awarded the father the costs of and incidental to the father’s appearance on 16 February 2010. 

3. Order 9 made by Mushin J on 4 May 2005 had provided:

   9.THAT pursuant to the Section of 118 of the Family Law Act 1975 the mother be and is hereby restrained from bringing any proceeding within the jurisdiction of this Court or the Family Law jurisdiction of the Federal Magistrates Court or other Court of competent jurisdiction save with the leave of a Judge of this Court first had and obtained, such leave to be sought in the first instance on an ex parte basis.

4. Jarrett FM concluded that because order 9 specifically referred to leave being granted by “a Judge of this Court”, his Honour intended that the leave only be granted by a judge of the Family Court of Australia: reasons for judgement Jarrett FM 23 March 2010 pars 5 and 6. 

5. The mother’s application that order 9 be discharged then was listed before me on 18 June 2010.  It was treated as an application by the mother pursuant to order 9 for leave to commence new proceedings concerning the child. 

6. On 21 June 2010 I dismissed the mother’s application and on that date published reasons for judgment. 

Application

1. The father now seeks an order that the mother pay his costs of and incidental to the mother’s failed application (save for the costs already awarded by Jarrett FM of the appearance in the Federal Magistrates Court on 16 February 2010) including his appearance by Counsel in Brisbane on 18 June 2010. 

2. This was foreshadowed in the father’s response filed on 11 February 2010 and maintained on 18 June 2010 in the event that I dismissed the mother’s application.  In consequence, on 21 June 2010 I made the following order in relation to the father’s costs application:       

   2If the father should seek to maintain his claim for costs contained in paragraph 2 of his response filed 11 February 2010:

   a.the father file written submissions in relation to costs by email to the Associate […] and serve them on the mother by posting to PO Box […] by 4 pm on Monday 5 July 2010;

   b.the mother file written submissions in response by email to the Associate […] and serve them on the father by posting to his solicitors by 4 pm on Monday 19 July 2010;

   c.the parties each state in the written submissions whether listing is required or whether they agree to the father’s application being dealt with on the basis of the written submissions.

3. The father filed written submissions: folio 11.  The mother filed written submissions: folio 12.  The father filed written submissions in reply: folio 13. 

4. As neither party sought a listing pursuant to par 2c of the order made on 21 June 2010 I have dealt with the father’s costs application on the basis of the written submissions. 

Relevant principles

1. In Penfold and Penfold (1980) 144 CLR 311 the High Court said at 315:

   It is an accurate description of s.117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s.117(2).  As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order.  Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. … (emphasis added)

Observations

1. The mother lives in northern Queensland.  The father lives in Melbourne.

2. In what follows, I am conscious that for the proceedings on 18 June 2010 at Brisbane the father has incurred the cost of return airfares Melbourne/Brisbane for his solicitor, Ms Rogerson, and Counsel, Ms Nikou of Senior Counsel, and possibly also accommodation and incidental costs as well as professional fees for the preparation of material and the appearance at Brisbane.  There is no criticism of the father for using his Melbourne solicitor and Counsel.  Indeed, they have had long involvement in the matter and were able to assist the Court considerably because of that circumstance. 

3. In my reasons for judgment 21 June 2010 I observed that although the learned Federal Magistrate had awarded the father his costs of appearance in the Federal Magistrates Court that has no bearing on the father’s application for costs in the hearing before me, if that was to be maintained: reasons for judgment 21 June 2010 pars 37-45 to which I would refer and which are set out later in these reasons.  Indeed, the learned Federal Magistrate awarded costs on the basis that the mother’s proceedings ought never have been commenced in the Federal Magistrates Court so that the appearance on 16 February 2010 was “wasted”: reasons for judgment Jarrett FM 23 March 2010 pars 19 and 20. 

4. Usually, applications under s118(2) are made ex parte, to avoid the incurrence of costs by a proposed respondent, so that there is no necessity for a respondent to appear or incur costs unless the Court, being satisfied that there is a case to answer, orders service on the proposed respondent.  Indeed, Mushin J’s order expressly provided for that by restraining the mother from bringing any proceedings in relation to the child save with the leave of a judge such leave to be sought in the first instance on the ex parte basis.  However, as I have mentioned, the mother’s application for some reason was served upon the father initially and he appeared, not only in this Court but earlier in the Federal Magistrates Court from which the matter was transferred to this Court.

5. The circumstance however that the father was served, and appeared, is not a reason of itself to award the father costs in this particular case.  Indeed, the subject matter of the mother’s material was such that even if initially listed for an ex parte hearing this Court is likely to have ordered service on the father so that the costs of his preparation of material and appearance would have been incurred in any event.  In this regard I would refer in particular to the report by Dr J, psychiatrist, dated 16 September 2009, which at first blush seemed to provide a basis for persuasion that the mother had discharged the onus on her of showing a reasonable likelihood of success in a new case concerning the child: reasons for judgment 21 June 2010 pars 21 and 34.  Ultimately, I was ably assisted by Ms Nikou of Senior Counsel, for the father, to conclude to the contrary: reasons for judgment 21 June 2010 pars 23-32 and 35.  The fact remains however that the mother’s own material was persuasive, such that even if the mother had not served the father initially, that is likely to have been ordered by the Court in any event, necessitating preparation of the material by the father and appearance. 

6. The position remains, thus, that the father must show a justifying circumstance to be awarded costs.  The circumstance that initially he was served with the mother’s application, as explained, may be unlikely to amount to such a justifying circumstance.

Grounds

1. The father’s written submissions identify two grounds:

   •The mother’s conduct in relation to the proceedings (section 117(2A)(c))

   •The circumstance that the mother’s application was wholly unsuccessful (s117(2A)(e)).

The father’s written submissions

Conduct

Audacity 

1. The father’s written submissions describe the mother’s conduct as “audacious” not only in bringing the application but also because of “the defective material” in support of it.  Examples given were a “disingenuous” double negative in the mother’s case outline; a submission described as “nonsensical”; and the submission of Dr J’s report in support of the mother’s contention that formal diagnosis as to her psychiatric health might constitute a change of circumstance, whereas “the fact is” that the mother’s formal diagnosis of her mental health was “not a concern” for Mushin J.  The submission continued that the mother’s material was “defective” because it “inserted irrelevant matters and omitted relevant matters.”

Service

1. Next, the father’s written submissions contend that if the mother did not require or “expect” him to attend she would not have served him with her application, such that the service also is conduct amounting to a justifying circumstance for the award of costs.  The father’s submissions thus contained:

   12.Having served him with her Application, when the Application contained serious factual omissions as discussed above, the Applicant can hardly complain that the Respondent sought to correct those omissions by attending the proceedings.  How else could the Respondent protect himself against what may have been said or produced in the court room?

   13.The Applicant is totally responsible for creating the situation by filing an Application which is not competent in law and which is unsupported by relevant facts. 

   14.It is entirely inappropriate for her to complain about the Respondent defending his position by proper representation. 

2. However, the point is not about “complaint”, as the mother by her service invited the father’s participation.  The matter at issue is about the costs of that. 

Wholly unsuccessful

1. It is implicit in the father’s written submissions that a ground relied upon is not only that the mother’s application was wholly unsuccessful but that in all of the circumstances it was “not competent in law” and “unsupported by relevant facts” such that it never should have been brought. 

The mother’s written submissions

1. The mother’s written submissions, which plainly were prepared by herself as a litigant in person, largely contain irrelevant matters, including reference to Amnesty International, “gross violation of Human Rights” and such matters; emotional comments; criticism of past Court process; and purported new evidence relating to child support and other matters; such that much of it is irrelevant to the father’s application for costs. 

2. The mother submitted however, at the end of her written submissions, that the father should be responsible for his own costs such that they not be paid by her. 

Father’s submissions in reply

1. The father’s submissions in reply, unnecessarily, and somewhat savagely, refer to the mother’s written submissions as “fictitious ramblings”. 

Reasons for judgment 21 June 2010

1. My reasons for judgment 21 June 2010 contained the following at pars 37-45:

   37.At the conclusion of the hearing on Friday Ms Nikou referred to the father’s response filed 11 February 2010 seeking not only the dismissal of the mother’s application but that she pay the father’s costs.  I said that if I were minded to dismiss the mother’s application I would make directions as to the filing of written submissions in relation to the costs application.

   38.I will, therefore, order that if the father’s costs application is to be pursued he file and serve written submissions within 14 days, the mother file and serve written submissions within 14 days after that, and that both parties state in the written submissions whether they agree that the matter of the father’s costs application be dealt with on the basis of the written submissions or whether either the father or the mother seeks a listing for the making of oral submissions as well.

   39.I would make the following observations, however, as to the father’s costs application, emphasising that the observations should not be taken as any prejudgment of the matter.

   40.Although costs are compensatory, rather than punitive, the mother has the particular difficulties outlined by Mushin J in his reasons for judgment which difficulties are well known to the father.

   41.Although the mother’s application has been wholly unsuccessful, Mushin J observed that the mother has a “distorted sense” of reality.  If that be true, then her conduct in bringing the application for the new proceedings might properly be viewed in that context, which is no fault of the mother and indeed perhaps a circumstance requiring compassion.

   42.I appreciate that the father might persist with his costs application to deter the mother from in the future bringing any further s118(2) application. However, according to the Rules of Court, such would be ex parte in the first instance as indeed it appears the mother initially intended on this occasion.

   43.Further, presently there is no evidence as to the mother’s ability to pay any costs order.  Such evidence is requisite in relation to the matters to be considered under s117(2A).

   44.I appreciate that in the Federal Magistrates Court there is already a costs order against the mother by order made on 23 March 2010 (amended 6 May 2010).  I am not influenced by that, nor should I be.

   45.If the father should persist in his application for costs I will, of course, determine it on the merits, having regard to all of the matters in ss117(1), 117(2) and 117(2A).

Analysis and reasons

Conduct – Audacity

1. In my view, the conduct of the mother complained of is not a justifying circumstance to award costs to the father. 

2. The mother supported her application with a fresh psychiatric report, which plainly she believed was sufficient for the matter substantively to be reopened.  The technical defects in the mother’s material described in the father’s written submissions as “audacious” “disingenuous” and “nonsensical” are petty, in particular as to the “double negative” accusation in relation to the mother’s case outline, and as such in my view ought not have been raised by the father for consideration in relation to costs, the mother “at first blush” having presented a cogent and respectable application for leave to commence new proceedings on the basis of Dr J’s fresh report. 

3. The mother’s particular difficulties, detailed in Mushin J’s reasons for judgment, and picked up by me at par 41 in my reasons for judgment 21 June 2010 have effect, as I observed at par 41, of deserving compassion, the mother’s “distorted sense” of reality being no fault of her own.  It is not as if the mother’s “conduct” complained of was blatant or in culpable disregard of any substantive prospect of success in her view, or brought with blatant or culpable disregard for the principles relevant to the bringing of new proceedings. 

Conduct - Service

1. I have referred already to the aspect of service of the mother’s application on the father, and would reiterate that although the mother did not need to serve the father initially in all likelihood the Court in all of the circumstances would have ordered service on the father in any event. 

Wholly unsuccessful

1. In relation to pars 13 and 14 of the father’s written submissions, although an applicant is always responsible for “creating” proceedings, it is awkward to suggest that the mother’s proceedings were “not competent in law” because they were “unsupported by relevant facts” in that it is the function of the Court to determine matters before it both procedurally and substantively.

2. Further, I would repeat my view that the mother supported her application with a fresh psychiatric report which, plainly, she believed was sufficient for the matter substantively to be reopened.

Other matters

1. Section 117(2A)(a) makes mandatory that I consider the parties’ financial circumstances.  The father has not offered any evidence as to his financial circumstances, nor the mother’s.  In my reasons for judgement 21 June 2010, at par 43, I gave notice to the father that such is a mandatory consideration, requisite of evidence. 

Conclusion

1. I am conscious that the award of costs is compensatory, not punitive. 

2. Nonetheless, the father must establish a justifying circumstance for the award of costs. 

3. The father has failed in my view to establish a justifying circumstance for the award of costs to him, and in all of the circumstances I conclude that an award of costs to the father, in this particular case, would not be just. 

Order

1. The father’s application for costs will be dismissed. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:     

Date:              6 August 2010