HEWITT & TESSIER (No.2)

[2013] FCCA 1831

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEWITT & TESSIER (No.2) [2013] FCCA 1831

Catchwords:
FAMILY LAW – Costs – parenting proceedings – father's financial circumstances – father's conduct in relation to the proceedings – whether father wholly unsuccessful – adverse findings as to father's credit – costs of mother and Independent Children's Lawyer ordered to be paid by father.

Legislation:  
Family Law Act 1975, s.117

Applicant: MR HEWITT

Respondent: MS TESSIER

File Number: PAC 164 of 2011

Judgment of: Judge Halligan

Hearing dates: 30 September 2013, 1, 2 & 3 October 2013

Date of Last Submission: 3 October 2013

Delivered at: Parramatta

Delivered on: 3 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Khan

Solicitors for the Applicant: Birchgrove Legal

Counsel for the Respondent: Ms Druitt

Solicitors for the Respondent: Gowland Legal

Counsel for the Independent Children’s Lawyer: Ms De Vere

Solicitors for the Independent Children’s Lawyer: Standfords Solicitors

ORDERS

1. Leave is granted to the father’s counsel and solicitor to withdraw.

2. The father shall pay to the mother’s solicitors within 30 days the sum of $43,637.95 being the mother’s costs of the aborted hearing in June 2012 and the mother’s costs of this hearing.

3. The father shall pay to the Independent Children’s Lawyer within 30 days the sum of $19,326 being the Independent Children’s Lawyer’s costs of these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Hewitt & Tessier (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

PAC 164 of 2011

MR HEWITT

Applicant

And

MS TESSIER

Respondent

REASONS FOR JUDGMENT

Introduction

1. For reasons that I gave yesterday at the end of the hearing of contested parenting applications, I made orders that the mother have sole parental responsibility for the parties’ daughter, that the child live with the mother, and that the father not spend time or communicate with the child.  I also made an order restraining the father removing the child from Australia, and with it I made a Watch List order.

2. The Watch List order was opposed by the mother but sought by the Independent Children’s Lawyer and by the father, albeit in a slightly different context.  He sought a restraint on both parties removing the child from Australia, together with the Watch List order.  And his evidence in cross-examination made it clear that the main purpose of that was his unsupported allegation that the mother may abduct the child overseas.  I did not make the order the father sought restraining both parties removing the child.  Rather, I made the order the mother and the Independent Children’s Lawyer sought restraining only the father removing the child.

3. Following the delivery of my judgment and pronouncing orders, an application for costs orders against the father have been made on behalf of both the mother and the Independent Children’s Lawyer. 

4. The mother seeks costs of both the abortive hearing in June 2012 and of this hearing, in the total sum of $43,637.95.  The costs sought on behalf of the Independent Children’s Lawyer are the costs and disbursements of the Independent Children’s Lawyer for the entire case, in sum of $19,326.  The father opposes both applications.

The applicable law

1. The question of costs is governed by section 117 of the Family Law Act. The starting proposition is that each party bears his or her own costs (section 117(1)). However, if the Court is satisfied there are circumstances justifying a costs order, it may order a party to pay some or all of the costs of another party or the Independent Children’s Lawyer, or both (section 117(2)). In determining whether or not a costs order should be made, the applicant for the costs order bears the onus of satisfying the Court there are circumstances warranting a costs order being made. It is not the case that the respondent to the costs application must show why a costs order should not be made.

2. In determining whether to make a costs order, the Court must have regard to such of the matters referred to in subsection (2A) of section 117 as are relevant. I will deal with each in turn.

Consideration

The financial circumstances of the parties

1. I am satisfied on the basis of the tax return of the mother that the mother is in receipt of a very modest income and a part pension.  She is not in receipt of legal aid.

2. The father submitted that he was in poor financial circumstances too.  He is not in receipt of legal aid.  The father’s evidence during the hearing was that in January this year he purchased a [omitted] business for $50,000, which he paid from savings he accumulated from his prior employment over a matter of some months, despite the fact that his tax returns suggest, in the two preceding tax years, a very modest level of income.  He indicated he worked two jobs.  He declined to answer a question as to whether he disclosed to the Tax Office his income from the second job, on the basis of the risk of self-incrimination.  I put that issue aside, therefore.  But the fact remains that he could, from income, save $50,000 in a relatively short period of time.

3. This matter was heavily relied upon in submissions on behalf of the mother and the Independent Children’s Lawyer.  The father submitted that as I have found him not to be trustworthy on his oath, I should not accept the evidence he gave of saving $50,000 in a short period of time either.  He did not say, however, that that evidence was false, and in the circumstances that is evidence against his interest and he cannot now resile from it.

4. I am not satisfied that the father’s references to his financial position are reliable.  I am satisfied he has undisclosed income, because I am not satisfied that otherwise he could have saved the $50,000 in the period of time he said he saved it from the taxable income he then says he had.

5. The father sought further to rely upon the level of his expenditure.  He referred to the level of his rent.  However, he is not meeting that alone.  His partner contributes to that.  There is no evidence as to the level of that contribution.  I am not satisfied the father in fact has to pay the full amount of the rent.

6. He further referred to a car loan under which he must pay $1,071.76 a month.  However, that loan was taken out in January 2012, twelve months before he bought the supermarket.  He was apparently able to meet this commitment and nonetheless save $50,000.

7. In the circumstances, I am satisfied that the father’s financial circumstances are much better than he seeks to suggest, that they are much better than the mother’s and his financial circumstances are not a consideration adverse to awarding costs.  In fact, I am satisfied it is a consideration in favour of costs, but not to the extent that it alone, without other matters, would justify the costs order.

Conduct of the parties to the proceedings

1. Both counsel for the mother and counsel for the Independent Children’s Lawyer relied upon the father’s conduct of these proceedings or in relation to the proceedings, referring in particular to the circumstances under which the hearing in June last year had to be aborted and the circumstances in which this hearing was delayed and protracted.  That largely revolved around whether or not the father needed an interpreter, and accepting that he did for both spoken and written English, the fact that he repeatedly sought to rely on affidavits not bearing an appropriate interpreter’s certificate.

2. As I mentioned in my reasons yesterday, I highlighted this defect in the father’s affidavits as long ago as July 2011, yet the father came to court for a hearing in June last year with affidavits not bearing an appropriate interpreter’s certificate, nor had he taken steps to ensure that not only his documents but the mother’s documents had been read with such assistance necessary for him to understand them.  The matter was stood in the list for over a day to have the interpreter that the Court booked to assist the father read over the father’s documents and the mother’s documents.  It took so long that it was not possible then to conduct the hearing.  That hearing was aborted because of the father’s failure to do what I said he should do as long ago as July 2011.

3. When the matter came on for hearing before me on Monday this week, exactly the same situation applied.  He again was relying on an affidavit that bore no interpreter’s certificate.  The evidence of his own solicitor, whom he retained only shortly before this hearing was due to commence, was that it was only very late after that solicitor began preparing the father’s case and after the father had initially sworn an affidavit and signed an amended application, that the father indicated to the solicitor he needed any assistance to understand written English.

4. It was in those circumstances that both the amended application and affidavit were redone and filed last Friday, again in circumstances where there was no interpreter’s certificate.  But there was a document signed by the father suggesting that his English had improved and he did not need the assistance of an interpreter for those documents.  When that document was put to him in cross-examination, although it bore his signature, he said he could not read it or understand it.  In those circumstances, where by then I had told the father twice, once in July 2011 and again with the assistance of the interpreter in June 2012, what he needed to do before coming for this hearing, he either lied on his oath or he simply ignored what I told him he should do.

5. His behaviour in the proceedings not only led to the hearing in June 2012 being aborted, it significantly delayed and protracted this hearing as well.

6. Further, I note that I made seriously adverse findings against the father as to his credit.  I noted that he repeatedly evaded questions and prevaricated.  His lack of candour and honesty also unnecessarily protracted these proceedings.

Whether a party has been wholly unsuccessful

1. As already mentioned - and whether a party has been wholly unsuccessful is a relevant consideration - in one sense the father was not wholly unsuccessful in that I made a watch list order as he sought.  However, the watch list order does not stand on its own.  It is an ancillary order to an order restraining the removal of a child from the country and in this case, the father was unsuccessful in obtaining the order he sought against the mother restraining her removing the child from Australia, and he was certainly otherwise wholly unsuccessful.

Discussion

1. I note that these are parenting proceedings.  The child’s best interests are the paramount consideration.  In my view the Court should be more reluctant than, for example, in financial proceedings, to award costs after a hearing lest it act as a deterrent to a party bringing a matter concerning a child’s welfare to court.  But that does not mean that the Court cannot or should not ever make such an order. 

2. Despite the reluctance that I am satisfied a court should have in awarding costs in a parenting matter, I am satisfied for the matters that I have referred to that this is one of those relatively rare cases where costs should be awarded against the father.  Not only, as I say, did his refusal to attend to the matters highlighted to the Court as long ago as July 2011 cause a total waste of not only the Court’s time in June last year but also a waste of the legal costs for that event of the mother and the Independent Children’s Lawyer, the same matters delayed and protracted this current hearing, again unnecessarily adding to costs.

3. But beyond the costs that were wasted, I am satisfied that the mother should have the whole of her costs of this hearing in light of my findings adverse to the father’s credit and his vague and disingenuous apparent admissions in relation to physical and verbal abuse of the mother with no particularity and what I am satisfied were his hollow suggestions of regret and remorse.

4. I am satisfied that he should also meet the whole of the costs of the Independent Children’s Lawyer.  Ultimately, the father’s case was, I am satisfied, shown to have no substance.  I am satisfied that there were, at all times during this case, significant and serious protective concerns for the mother and the child arising from matters for which the father never demonstrated any genuine regret or remorse or made any genuine attempt to address.  And I am satisfied that his true attitude is as indicated in the statements he made to Mr W and the statements he made to the immigration authorities that he is not the problem, the mother is.  As I say, I am satisfied that that has been the position at all times and on that basis, I am not satisfied the father ever had any honest case to press for the orders he sought.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Associate: 

Date:  7 November 2013