Johnson and Field

[2007] FamCA 431

FAMILY COURT OF AUSTRALIA

JOHNSON & FIELD [2007] FamCA 431

FAMILY LAW - COSTS - Application out of time allowed

APPLICANT: MR JOHNSON

RESPONDENT: MS FIELD

FILE NUMBER: NCF 3468 of 2000

DATE DELIVERED: 23 April 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: MULLANE J

HEARING DATE: 23 April 2007

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr Filby as Agent for Broun Abrahams Burreket

Orders

1. The time for filing the father's application for costs is extended to 20 March 2007;

2. The mother must pay to the father a sum of $17,600 towards his costs in the proceedings.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Johnson & Field.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 3468  of 2000

MR JOHNSON

Applicant

And

MS FIELD

Respondent

REASONS FOR JUDGMENT

EXTENSION OF TIME

1. These were proceedings that were concluded by final orders on 25 January this year.  The father filed an application on 20 March 2007 seeking leave to make an application out of time for costs.

2. The relevant rule is r 19.08 and it says that:

   "An application for costs can be made at any stage during a case or by filing an application in the case within 28 days after the final order is made."

3. It gives power to the Court to extend the time.  The general rule is that where a time is prescribed the time should only be extended where it is necessary in order to avoid an injustice.  In this case, although the orders were made on 25 January, the reasons were not published until 6 March, so it was not until that time that the father was aware of the issues on which he was successful and the issues on which the mother was unsuccessful.

4. I think it would be an injustice if he were forced to file the application, notwithstanding that he was not aware of the reasons.  He filed the application within 14 days of the reasons being delivered.

5. In the circumstances an extension of time should be granted.

   ORDERS DELIVERED

   RECORDED    :    NOT TRANSCRIBED

COSTS

1. The usual rule in relation to proceedings under the Family Law Act is in

   
   

   sub-s 117(1) and says that each party shall bear his or her own costs.  That is subject to the power in sub-s (2) for the Court to make an order for costs where it is satisfied there are circumstances that justify such an order.

2. The sub-s (2) says that that power has to be exercised having regard to the matters in sub-s (2A).

3. The first of those is the financial circumstances of the parties.  The financial circumstances of the parties are not good.  The father is presently unemployed.  He is has taken the role of a full-time parent in relation to the parties' child, a daughter.  There are good reasons why he should be in that role at the moment because the child is likely to be needing his support more than she might otherwise, because of the change of residence that occurred as a result of the hearing.

4. The father's employability is an issue because the employment that he has had in the past was through I think the Attorney-General's Department, or the NSW Courts Administration, and he did try, before moving to the Northern NSW coastal area, to obtain a position there but was unsuccessful.  He would prefer to obtain part-time work that would be compatible with his role as the carer for the child, but he says he has been unable to obtain such employment.

5. His income is therefore social welfare payments by way of, I presume, a parenting allowance.  He has a liability for rent of his home, presumably still in the same premises he was renting.  He has some difficulties because his car has been repossessed and he says he owes $4500 to the finance company, for which they are threatening to take proceedings.  He is being sued by the solicitors who acted for him in the proceedings before the hearing.  Their claim for their costs is $11,000-odd.  In addition, they are also claiming interest and also Court costs and professional fees on their statement of claim.  So that the total claimed is something like $12,500.

6. The father has a home at L which he says now he has been trying to sell but without success.  There is a mortgage on that property and there is interest accruing on that, which he says have now consumed his equity in the property.  He says if he sells it, it will be at a loss. 

7. He has the parties' child a daughter, dependent upon him.  He owes the mother in excess of $2,000 in child support payments, since prior to the child coming to live with him, and the Child Support Agency, according to the mother's affidavit, is crediting her liability to him in an amount of $86.75 per month, it is offset against his arrears and he has not received any money from the mother or the Child Support Agency by way of child support for the child.

8. The mother's situation is that she is a casual part-time worker at a public school in the Northern NSW coastal area and according to the figures that she has provided her income, since 25 January, averaged $286.03 per week.  That takes into account her Newstart Allowance and her income from paid work.  She says her weekly outgoings come to $335 per week.  She has some nominal savings, furniture and household contents and a motor vehicle worth about $5,000.

9. The mother funded litigation against the father in the proceedings before Purdy J.  In his Judgment he found that the grandmother had advanced at least $30,000 to the mother for legal costs in those proceedings.  It appears that the grandmother has continued that.  The mother says she now owes her mother $72,000 in money lent by her mother for legal fees.

10. The mother has withdrawn most of her superannuation entitlements.  When she withdrew those I think she received a cheque in April 2001, for a little under $1400.  Her present superannuation entitlements are worth a little over $500.  The mother is pregnant to Mr W, with whom she has been in a romantic relationship for some time.  He lives nearby, although he is not a permanent resident at her home, but he stays there at times.

11. The mother I think is still able to continue her part-time employment.  She gave evidence in the proceedings, as did Mr W, that their relationship is intended to be long term, although they have not made any marriage plans. 

    
    

    Mr W also testified that his intentions were “to move in together, marry, kids, the whole thing”,  but presently it is likely that she will have the responsibility for the care of another child.  Also in relation to her financial situation, although it seems until the arrival of the child her earning capacity is better than the father's, it may be that then, with her responsibility for another child, she will not be in paid work.

12. The next matter I am required to consider under paragraph (b) is whether any party to proceedings is in receipt of assistance by way of Legal Aid.  The father is not in receipt of assistance by way of Legal Aid, nor is the mother. 

13. Under paragraph (c) I am required to consider the conduct of the parties to the proceedings in relation to the proceedings.  I do not think there is any matter raised in that regard.

14. Under paragraph (d) I am required to take into account whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.  These proceedings are not enforcement proceedings.  In these proceedings the onus of proof is on the balance of probabilities.  Because of the findings that were made in the Judgment, (and I understand from the mother’s counsel's written submission today, she is withdrawing the appeal she had lodged), from the findings in the hearing one would have to be satisfied that on the balance of probabilities the mother did not comply with the previous contact orders, and more particularly that she did not support the spirit of the Court's orders made.  The orders that I am talking about are the orders made by Purdy J in September 2003 and subsequent orders for the child to have contact with her father until some time around when the Court expert's report was released recommending that the child be removed from her mother's care.

15. There were various ways where she demonstrated that the mother did not intend to support and did not support those orders and in my view the history of such matters in the Judgment makes it a very extreme case.  I suppose that is obvious in any event because it was the factor that led largely to the Court being satisfied that the mother could not support or facilitate contact in the future and did not recognise the child’s need for a relationship with her father.  But in the Judgment, and I should say, rather than support the contact by the child with the father and the child's relationship with the father, the mother undermined it.  Some of the matters that were found in the Judgment were, for example, that the mother undermined the Court's findings that changeovers at F to occur at the child's school, and she undermined that determinedly, so that they did not, and that had serious consequences for the child involving considerable stress, because she was in a situation where her greetings of her father or meeting her father in a park under supervision by people sent by the mother caused her considerable conflict of loyalties.

16. Another example was where the mother failed to implement contact, where the father was late in paying her expenses for contact.  Notwithstanding that the payment of those expenses seven days beforehand was a condition of the contact, the mother could have facilitated contact but she did not do so.   Even when she had received the money in time for her to attend the changeover location there were occasions where, because of those events, the father was a payment in advance with the contact expenses.  Indeed when that contact ceased he had paid $75 more than she should have, but notwithstanding that the mother still refused contact on occasions when she claimed he was in arrears.

17. There were numerous occasions where the mother declined contact, sometimes without any reasonable notice, relying on the child being sick.  The mother failed to provide any evidence to justify a finding that the child was unable to reasonably attend contact on such occasions. 

18. There was another occasion where the mother sought to enlist the assistance of a hospital doctor to say that the child, because she had a broken arm, could not attend contact with her father.  There was another occasion when the father attended on the wrong date, after having spoken to his lawyers previously and instructed the lawyer to arrange for a change because he could not attend on the correct date.   But when he attended for contact and discovered the change had not been arranged, he had a relative to contact the mother to see whether during the weekend he could see the child.  The mother refused.  She offered no evidence as to any reason why the child could not have spent some time with her father that weekend.   That was consistent with her other attitudes and conduct in relation to the child's contact with her father and her relationship with her father.

19. These matters of failing to comply with the orders and not supporting the spirit and intention of the orders are matters that probably should have been dealt with under paragraph (g) later, as an additional matter the Court considers relevant.  But it was that conduct, the continual opposition to the child's contact with her father, that was ordered from time to time by the Court, that ultimately led the father to the decision that he should seek that the child reside with him, because otherwise the child would have a relationship with only one parent, the mother.

20. The next matter is paragraph (e), whether any party to the proceedings has been wholly unsuccessful.  The mother was wholly unsuccessful in the proceedings.

21. Paragraph (f) is whether either party to the proceedings have made an offer in relation to settle the proceedings.  I am not aware of any such offer.  I mention paragraph (g).  I do not know of any other matter that should be taken into account under there.

22. The fact that the mother's conduct in relation to non compliance with Court orders and complete opposition to the spirit and intention of orders made for the benefit of the child in terms of contact with, and a relationship with, the father, is in my view a weighty matter supporting a costs order.  This is not a situation where either of the parties could afford further litigation, but the mother's conduct from 2003 onwards really dictated that both of them would have to have that expense.  She was presumably convinced that she had to succeed and that she would borrow from her mother, whatever it took to do that. 

23. In the hearing the father's position was largely supported by the Independent Lawyer for the child, who also supported, certainly in closing submissions, the option of the child living with her father and a change of residence. 

24. The other matter which also supports a costs order is that the mother was wholly unsuccessful in the proceedings.  

25. The matter which weighs against a costs order is the mother's poor financial position.  At present she does not have the means to pay a costs order.  But nor does the father have the means to pay his former solicitors’ claim.

26. The irony I think though for the mother's position is that the creditor that she has is her own mother, to whom she owes $72,000, and much of that is for money lent to fund the litigation against the father and to oppose the application that he made that was ultimately granted   It seems to me grossly ironic that the person who funded the proceedings on her behalf should stand in a better position than the father in relation to the recoverability of those loans and the father’s costs.

27. The father was forced by financial circumstances to represent himself at the hearing and indeed that is to the mother’s benefit in the sense that if he had not he may have been here today seeking a much larger sum by way of costs than the figure that he seeks.

28. In my view there should be a costs order against the mother because of her conduct in relation to previous contact orders, the fact that she has been wholly unsuccessful and the fact that her creditor is her mother and the debt relates to legal costs of the mother that were funded by the grandmother in proceedings against the father and particularly the subject proceedings in which the father seeks an order for costs.  The father should not stand in a less favourable position for his costs than the maternal grandmother does in relation to the funds she lent the mother to conduct the proceedings.

29. The assessment that the father gave was referred to earlier, but he incurred fees of $17,060 for the Solicitors who acted for him prior to the hearing, of which he has paid $6000.  The total he claims in respect of his solicitors’ fees is $17,060.  He paid for accommodation for three nights of the hearing at $30 a night and then was forced to stay with friends, and so he claims $90 for the five nights’ accommodation.  He incurred expenses of $120 driving his mother's car down and back from the Northern NSW coastal area.  He has claimed $100 for meals for five days of the hearing.  He also attended at the interviews by Ms S for the purpose of the single expert's report, and he claims $120 for the return journey for petrol for presumably his mother's car. 

30. I have included an amount of $20 for estimated meals for that journey and I have also included another $100 for sundries, as it is clear that in acting for himself he would have incurred expenses for telephone calls, for postage, for some photocopying for the hearing and other things like that.  That comes to a total of $17,610.

31. It is not usual in proceedings concerning children in the Family Law Act to make an indemnity costs order. The father seeks that. His losses are more substantial than what I have detailed. His statement of claim from his solicitors, annexed to his affidavit, shows that the claim in the statement of claim is approximately $12,500. The interest calculated in the schedule to the document that is included in that amount is $517 and that is calculated to 31 January this year. There has since been another three months of interest and I think the current rate is 10 per cent. Presumably there will be a Judgment in the matter and as he does not have the funds to pay it he will then be liable for interest on the Judgment at the rate prescribed by the Local Court rules.

32. He has also incurred other costs in coming here today and another journey today and the costs involved in that.  In the circumstances I think the mother should be ordered to contribute to the father's costs a sum of $17,600.

33. I do not propose to allow time to pay because there should be interest on the money from now, given that the father will himself be incurring interest, because he does not have the money.

I certify that the preceding thirty seven (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:  7 May 2007