Hunter and Uppal (No. 2)

[2008] FamCA 826

FAMILY COURT OF AUSTRALIA

HUNTER & UPPAL (NO. 2) [2008] FamCA 826

FAMILY LAW – COSTS – Consideration of s117(2A) factors - Father filed inappropriate and inadmissible material in support of his application – Father wholly unsuccessful in significant number of his applications – Father to pay costs of mother and ICL in relation to paragraphs of his application in relation to which he was wholly unsuccessful

Family Law Act 1975 (Cth) s 117
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Uppal

RESPONDENT: Mr Hunter

INDEPENDENT CHILDREN’S LAWYER: Mr J. R. Croft

FILE NUMBER: ADC 1669 of 2007

DATE DELIVERED: 30 September 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.M. Bowler

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr M.A. Boehm

Orders

1. The father pay the costs of the mother and the Independent Children’s Lawyer in relation to paragraphs 1, 2, 3, 4, 10, 11, 12 and 13 of the father’s Application filed on the 28 March 2007, such costs to be agreed or if not agreed within twenty-one days to be taxed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1669 of 2007

MS UPPAL

Applicant

And

MR HUNTER

Respondent

REASONS FOR JUDGMENT

1. This is the application by the mother in these proceedings for an order for costs against the father in relation to proceedings before the Court, being the application of the father filed on 28 March 2007.  The Independent Children’s Lawyer also seeks costs from the father, to the extent that the proceedings have been unsuccessful.

2. The matters which are the subject of the application for costs are set out in some detail in my judgment delivered on 18 June 2008.  The final orders that I made on that occasion were that I noted that paragraphs 5, 6 and 9 of the father's application of 28 March 2007 had been dealt with by way of final consent orders on 6 December 2007, and then I further ordered that paragraphs 1, 2, 3, 4, 10, 11, 12 and 13 of the father's application were dismissed.  I referred to paragraphs 7 and 8 of the father's application, which related to overseas travel, for final hearing.  That final hearing is yet to take place.

3. The law to be considered in this matter is clearly set out in the Family Law Act, and in particular section 117, which provides that, subject to subsection (2) (and other sections which are not relevant to this particular application) each party to proceedings under this Act shall bear his or her own costs.

4. Subsection (2) provides that:

   If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security of costs, whether by way of interlocutory order or otherwise, as the Court considers just.

5. The provisions of section 117(2A) then set out the factors to which the Court shall have regard when considering what order, if any, should be made for costs.  The legislation has been considered many times.  It is clear that it is not necessarily to find an exceptional case or that there are special circumstances:  it is necessary, as the Act requires, for the Court to be of the opinion that there are circumstances that justify it in so doing, and that any order for costs must be as the Court considers just.  See Penfold v Penfold (1980) 144 CLR 311.

6. The matters set out in section 117(2A) which the Court must consider begin with "the financial circumstances of each of the parties to the proceedings".  I have received a submission that the wife was employed as a part‑time nurse and does some other work, with an income of $26,000 per annum.  The father has provided the Court with a financial statement this morning, which indicates that he has an income of $1347.70 per week, and that his current wife has an income, he estimates, of $1400 per week.  There is obviously a distinct difference between the income of the parties and their financial circumstances in that regard.

7. In the statement of financial circumstances, the husband also indicates that he has an interest in a property at M, purchased by himself and his current wife some time ago, but that that property is subject to a mortgage for which he is substantially responsible.  He puts to me in submissions today that he has obligations in relation to the mortgage greater than that of his present wife because of her larger earlier contribution to the purchase of that property.  Be that as it may, I give consideration to the financial circumstances of each of the parties to the proceedings and note the difference in current income‑earning capacity of the parties.

8. The next factor is whether any of the parties to proceedings are in receipt of legal aid.  That does not apply.  Of course, the Independent Children’s Lawyer's situation is one which is to be taken into account as a cost that would otherwise be borne by the taxpayer if the parties were not ordered to contribute to the legal aid services which funds the Independent Children’s Lawyer's services.

9. Paragraph (c) is:

   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 answer questions, admissions of facts, production of documents and similar matters.

10. This is of some relevance in these proceedings as the application that was heard before me turned on the question of the Rice v Asplund (1997) FLC 90-725 arguments as to whether the orders sought by the father were ones which were appropriate to litigate yet again. It is also important in this context to consider the type of material filed by the father, purporting to be in support of his application. I accept the submission made this morning that much of the material could only be described as inappropriate, inadmissible (so far as it did not relate to factual material or so far as it related to opinions by persons not qualified to give them) or representing argument and not in the proper form of affidavit material which is meant to be limited to presenting admissible evidence of facts relevant to the issues.

11. Also relevant to the question of the conduct of the parties is that the material filed, to a large extent, related to matters which had already been dealt with or litigated previously.  The costs to the mother and the Independent Children’s Lawyer of reading and assessing the usefulness of the large amount of material filed by the father must have been a significant part of the costs incurred.

12. The next item is "whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court".  The father draws the Court's attention to the fact that the mother has, on past occasions, been found to have contravened the orders of the Court.  Indeed, in the summary of the background of this matter, I referred to the findings made in the Federal Magistrates Court both in relation to past applications by way of recovery orders and contraventions and the fact, in particular, that on 1 June 2005 Mead FM found against the mother  by her own admission in relation to 16 counts of contravention alleged by the father, and the orders that were made then.

13. I considered those matters when considering the Rice v Asplund (supra) argument.  The father was unsuccessful in relation to his application to reopen many of the issues concerning the child's welfare.  I therefore take into account, as I did when making my decision, the fact of the background to this matter and, in particular, the findings that the mother had contravened earlier orders.

14. The next paragraph is “whether any party to the proceedings has been wholly unsuccessful in the proceedings”.  To this extent, of course, it must be noted that paragraphs 5, 6 and 9 of the father's application were the subject of final consent orders on 6 September 2007, so as far as the applications that were made in paragraphs 5, 6 and 9 of the father's application, he has not been wholly unsuccessful.  It would therefore be inappropriate for the father to be ordered to pay costs which related directly to the consent orders made in paragraphs 5, 6 and 9 of his application.

15. Similarly, the father has been successful in relation to paragraphs 7 and 8 of his application, to the extent that he has been successful in being given permission to continue with those proceedings because they have not yet been dismissed.  He should therefore not pay the costs of the hearing before me so far as it relates to the Rice v Asplund (supra) argument concerning paragraphs 7 and 8 of his application. 

16. My recollection, however, is that the material in relation to the documents filed by the parties concerning overseas travel was only a portion, not a large portion, of the material filed by both parties.  In due course the father may still be liable for the costs of any inadmissible or irrelevant material filed concerning those issues as well.

17. In relation to the remaining matters, namely, paragraphs 1, 2, 3, 4, 10, 11, 12 and 13, they are each applications by the father seeking specific orders, some of them quite significant.  For example, paragraph 1 was an order sought in relation to equal shared parental responsibility for the child, except education of the child, and paragraph 2 was that the father have sole parental responsibility for the child's education.  There were also issues in relation to change of surname and injunctions sought by the father concerning schooling.  On those matters, namely paragraphs 1, 2, 3, 4, 10, 11, 12 and 13, the father has been wholly unsuccessful.

18. Paragraph (f) of 117(2A) is “whether either party has made an offer to settle the proceedings and the terms of any such offer”.  That is not a relevant factor to be brought into account as a significant one in these proceedings. 

19. Paragraph (g) is "such other matters as the Court considers relevant".  This gives the Court a very wide discretion to bring into account other matters that are relevant.  The father would argue that the history of the proceedings indicates the lack of cooperation of the mother.  No doubt the findings that I have already made in relation to Rice v Asplund (supra) indicate that the father has been pursuing orders in this Court in a way which I did not find was appropriate to require the Court to reconsider the substantive orders concerning the child’s (welfare other than in relation to overseas travel).

20. In particular, I considered the history of the poor relationship that has been ongoing between the child's parents for a considerable period of time and, under the heading of Cumulative Basis, said in paragraph 146 that:

    Many of the issues raised by the father highlight that, even with the passage of time and [the child]'s ongoing development, his parents have not been able to improve the quality of their relationship as parents.  This is the cumulative effect of many of the father's allegations.  This poor relationship has existed for a long time.

21. I take into account in the general sense the concern for the impact on both parties of the ongoing litigation in these proceedings before this Court and the Federal Magistrates Court. 

22. It is necessary for me to take into account those matters in section 117(2A), weighing them up to consider whether the factors and circumstances disclosed justify the Court in making an order for costs and, if so, what would be a just order. 

23. The difficulty in relation to quantum of this matter is that the wife's counsel have been unable to provide the Court with a breakdown of the costs sought so that the Court can ascertain easily the proportion that would be appropriate when considering this matter, so far as it relates to some of the orders made by consent and some of the proceedings which relate to overseas travel, which is yet to be determined.  That in itself would be a difficult exercise, but I am left with the conclusion that any order for costs would have to be an order which related to the specific factors in which the father has been wholly unsuccessful.

24. I bear in mind that much of the material filed by the father was in an inappropriate and unhelpful form and that, to a significant extent, the father has been wholly unsuccessful in his applications before the Court.  I regret, therefore, that I cannot make an order which would fix the sum to be paid by the father.  I have taken into account his financial circumstances and compared them with the material provided by the wife's counsel, which indicates that the wife is not in a strong financial position.  The most significant part is the fact that the father's documents were often in an inappropriate form and that he has been wholly unsuccessful in a significant number of the applications which were dismissed by me in my judgment delivered on 18 June 2008.

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

Associate: 

Date:  7 October 2008