Heikki & Heikki
[2024] FedCFamC1F 833
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Heikki & Heikki [2024] FedCFamC1F 833
File number: DGC 1682 of 2022 Judgment of: WILLIAMS J Date of judgment: 5 December 2024 Catchwords: FAMILY LAW – COSTS – PARENTING – Where the mother seeks costs following final consent orders made in relation to parenting proceedings – Consideration of relevant principles under s 117 of the Family Law Act 1975 (Cth) – Where the father should have resolved the parenting proceedings at the dispute resolution conference prior to the trial, because he knew his alcohol consumption had escalated and he was armed with the results of his hair follicle test – Circumstances warranting departure from the usual principle that each party bear his or her own costs – Order that the father pay the mothers costs fixed at $3,300 – Payment to be made in instalments Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557
Massalski & Riley (No 2) [2021] FamCAFC 152
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Division: Division 1 First Instance Number of paragraphs: 39 Date of last submission/s: 8 November 2024 Date of hearing: 14 October 2024 Place: Melbourne Counsel for the Applicant: Mr Burns Solicitor for the Applicant: Einsiedels Counsel for the Respondent: Ms Swart Solicitor for the Respondent: KM Law ORDERS
DGC 1682 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HEIKKI
Applicant
AND: MR HEIKKI
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS THAT:
1.The father pay the mothers costs fixed at $3,300.
2.The payment referred to in paragraph 1 hereof, be made by three equal payments of $1,100 on 1 January 2025, 1 March 2025 and 1 May 2025.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Heikki & Heikki has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J:
INTRODUCTION
On 14 October 2024, at the final hearing of their respective parenting applications pertaining to their nine-year-old son, the parties to this application agreed to enter into final consent orders.
At the conclusion of Court, just after consent parenting orders were made, counsel for the mother made an oral application for the father to pay the mother’s costs of briefing counsel for the hearing.
Because the oral application was made without proper prior notice to the father’s counsel, both parties were permitted to subsequently file and serve on each other concise submissions as to costs. Counsel for both parties were also requested to email their client’s submissions to my Chambers.
On 25 October 2024, the mother’s lawyers emailed to my Chambers a copy of her costs submissions, which include a letter dated 3 October 2024 from the mother’s solicitors to the father’s solicitors.
On 8 November 2024 the father’s lawyers emailed to my Chambers a copy of his costs submissions.
Background
The parties commenced a relationship in 2010 and separated in March 2021. They are the parents to a nine-year-old son (“the child”).
Following the breakdown of the relationship, the mother filed an Initiating Application on 31 May 2022, seeking a property settlement.
On 16 August 2022 the father filed a Response, which also sought parenting orders.
During the course of the proceedings, there were various interim applications.
Protective concerns about the father’s parenting capacity were raised by the mother and referred to in the Child Impact Report dated March 2023. Paragraphs [18]-[21] inclusive deal with the father’s excessive alcohol abuse. This was also addressed in the Family Report dated 10 July 2023.
At the time of separation, both parties and the child were living in Town B and the child attended a local primary school.
On 20 October 2022, interim orders were made by consent for the child to live with the mother and spend time with the father.
There were two Applications in a Proceeding filed by the father, the first being in April 2023 subsequent to the mother seeking an intervention order against him, and the second in January 2024, after the mother and child unilaterally relocated to Town C.
Further orders were made on 22 May 2024, including the removal of supervision of the father’s overnight time with the child, because the father provided satisfactory hair follicle test results. The test results were for the periods of March 2023 – August 2023, and October 2023 – March 2024.
The trial was initially fixed for 22 April 2024, but was unable to commence on that date. Thereafter the parties attended a dispute resolution conference on 23 and 26 August 2024 with a Senior Judicial Registrar, but were unable to reach agreement.
The trial was listed for 14 October 2023, when the father produced the results of a further hair follicle test, which disclosed his excessive alcohol consumption. On that day, the parties reached agreement and final parenting orders were made by consent.
LEGAL PRINCIPLES
Parties to proceedings under the Family Law Act 1975 (Cth) (“the Act”) generally bear his or her own costs (s 117(1)), although if there are circumstances which justify doing so (s 117(2)), a court may make a costs order. In considering whether to make a costs order, the Court must have regard to certain mandated factors (s 117(2A)).
In Massalski & Riley (No. 2) [2021] FamCAFC 152 at [8], the Full Court said, an order for costs:
…falls to be determined within s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides that each party to a proceedings under the Act should bear his or her own costs unless the court is of the opinion that there are circumstances that justify making a costs order (s 117(2)). Section 117(2A) sets out matters to which the court should have regard to in determining whether there are circumstances which justify an order for costs, and if so, what, if any, order should be made. As well as the matters listed in s 117(2A), s 117(2A)(g) enables the court to take into account such other matters that are relevant.
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557, the Full Court said 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”.
The relevant factors 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 a costs order. No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the judge’s discretion: (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at 80,400). It is not necessary for each of the factors listed in s 117(2A) of the Act to be met for the Court to make a costs order (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 33 Fam LR 123 at 124).
The matters set out in s 117(2A) of the Act which are relevant to costs in this matter are as follows.
Financial circumstances
Neither party directly addressed this factor in their respective written costs submissions. However, I can infer that each party has modest financial resources. The mother refers to her being solely responsible for the support of the child, because the father was assessed in February 2024 as not having to pay any meaningful child support, and she has additionally referred to the financial strain the ongoing litigation has caused her.
The father works casually as a tradesperson in country Victoria, and submitted he has limited means to pay any costs order, and if made, he be able to pay the order “on terms”.
Conduct of the parties
The gravamen of the mother’s claim for costs is that the father should have resolved the proceeding prior to the matter proceeding to a trial, because he knew his alcohol consumption had escalated, and he would likely not obtain orders as sought by him.
The father’s conduct was compounded by his refusal to undertake a hair follicle test when requested on 11 September 2024, about a month or so prior to the date fixed for the final trial, when his alcohol consumption had been a significant issue between the parties for much of the proceeding. The Family Report dated 23 July 2023 recommended the father undertake numerous tests pertaining to identified risk issues, and that his partner be in substantial attendance during time between the child and his father. Additionally, orders were made in April 2023 restraining the father from consuming alcohol whilst the child was in his care and for his partner to be present.
Rather than undertaking a timely hair follicle test, on 25 September 2024 his lawyer suggested the mother and her partner undertake such a test, which they did, with negative results. The father ultimately provided the results of a hair follicle test shortly prior to the hearing date, which disclosed unacceptable levels of excessive alcohol consumption. The mother contends she did not know of the magnitude of the father’s alcoholism until the day of the final hearing, despite the parties having attended a dispute resolution conference on 23 August 2024.
In short, if the father had obtained a timely hair follicle test when requested, it would have been obvious to all that his proposal to spend substantial unsupervised time with the child would be doomed to fail. He should have resolved the proceeding at the dispute resolution conference, rather than at the final hearing, requiring the mother to engage counsel.
The father’s submissions about conduct were primarily directed to the mother’s decision in early 2024 to unilaterally relocate the child from Town B to Town C, and the consequential interim applications and costs incurred by him. The father remained in Town B, where he works. The father submitted the matter was unable to be resolved at the dispute resolution conference because of the issue of travel between the parent’s two homes, notwithstanding the travel issue was ultimately resolved by consent on 14 October 2024.
The father’s submissions refer to him obtaining a “poor hair follicle test result” two weeks prior to the trial and that he “voluntarily provided it to all parties”.
The father’s submissions do not address why he failed to provide a copy of the test results to the mother’s solicitors.
Any offer to settle the proceedings
Attached to the mother’s costs submissions is a copy of a letter dated 3 October 2024, enclosing the mother’s proposed orders to resolve the proceeding and purporting to be made in accordance with Calderbank principles. The proposal was for substantially more time between the child and the father than as provided in the final orders made.
The father’s submissions did not address the offer to resolve the proceedings.
DISCUSSION
I accept the mother’s submissions that the father, armed with the knowledge of the disastrous hair follicle test results some two weeks prior to trial, should have realised the orders sought by him would not eventuate. He should have resolved the proceedings in a child focused manner, which addressed the obvious protective concerns.
Because of the results of the hair follicle test, and the father’s own knowledge of the extent of his unacceptable alcohol consumption, the results of the test should have been provided immediately to the mother’s lawyers to enable a sensible resolution of the dispute.
The father’s submissions do not explain why it was that the test results were only provided to the mother, presumably via counsel, on the day of the trial, two weeks later.
The fact that the mother unilaterally relocated and caused the father to incur costs arising from interim applications, has no relevance to the father’s failure to disclose the test results in a timely manner and thereby avoid the necessity to brief counsel for the trial and incur substantial costs. It seems to be an attempt to conflate the two distinct issues.
CONCLUSION
Having weighed and balanced the relevant considerations, I am satisfied there are circumstances warranting departure from the usual principle that each party bear his or her own costs, and that the father should pay the mother’s costs fixed at $3,300.
Because the father has sought a progressive payment, I consider it appropriate that the payment be made in three equal instalments over a six-monthly period.
I will make orders accordingly.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 5 December 2024
0