K and E

[2008] FCWA 37

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: K and E [2008] FCWA 37

CORAM: CROOKS J

HEARD: FINAL SUBMISSIONS RECEIVED 11/01/2008

DELIVERED : 28 MARCH 2008

FILE NO/S: PT 6771 of 2000

BETWEEN: K

Applicant/Father

AND

E
Respondent/Mother

Catchwords:

COSTS - circumstances justifying order - parenting orders - Single Expert's report

Legislation:

Family Court Act 1997, s 237

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr T O'Sullivan

Respondent: Mrs E Brownlie

Solicitors:

Applicant: O'Sullivan Davies

Respondent: Joyce Teh & Associates

Case(s) referred to in judgment(s):

Kohan and Kohan (1993) FLC 92‑340

Munday v Bowman (1997) FLC 92‑784

1On 16 November 2007 I handed down judgment in relation to the dispute between [Mr K] (“the father”) and [Ms E] (“the mother”) about their child [S] born [in] January 2000 (“[S]”), now aged 8 years: K and E [2007] FCWA 134.

2The father has applied for the mother to pay his legal costs. On 16 November 2007, after the parties agreed most but not all of the issues, I pronounced orders determining the parties’ claims and made procedural orders for the filing and service of written submissions in relation to the issue of costs together with a financial statement and any costs notifications prepared during the proceedings.

3The father has submitted that “this is a case in which it would be appropriate for the Court to exercise the discretion to award indemnity costs”. The father has incurred actual legal costs that total at least $85,270.

Background to the proceedings

4Proceedings for contact were first instituted by the father before [S] was a year old. The parties reached agreement for [S] to spend alternate weekends from 9.00 am Saturday until 6.00 pm Sunday with her father and from 3.30 pm Wednesday until 8.30 am Thursday on intervening and alternate weeks. Orders were made concerning the father’s time with [S] on her birthday, the Christmas period and for one week of each school holidays. Orders were made by consent on 17 January 2001.

5The father initiated proceedings in June 2006, when [S] was 6 and of school age, seeking orders for:

•joint responsibility for decisions regarding [S]’s long-term care, welfare and development;

•an extension of the weekend contact from after school Thursday to the commencement of school on Monday;

•each intervening weekend from after school Friday to 12.00 pm Saturday;

•for one half of the mid-term holidays;

•extended periods during Christmas school holidays;

•issues related to [S]’s schooling;

•the issuing of a passport for [S]; and

•other ancillary orders.

6I have previously set out the background:

“4The trial of the proceedings for which the parties had prepared in 2006 was vacated and on 17 November 2006 the mother made application for the appointment of [the Single Expert], a clinical psychologist, as a Single Expert to investigate and report on her alleged concerns about the father’s parenting abilities and inappropriate sexual behaviour both on his part and his partner, [H]. The father and [H] denied the mother’s allegations, although the father admitted he made numerous telephone calls to private dating sites which was one of the concerns raised by the mother. The father for his part alleged that the mother was attempting to exclude or at least limit his role in [S]’s life which included her making unilateral decisions about [S] without reference to him. The mother essentially denied the father’s allegations.

5The Single Expert’s report was distributed to the parties in July 2007 and a supplementary report in response to a list of questions from the mother was provided by [the Single Expert] on 25 September 2007.

6In preparing his report, [the Single Expert] was provided with copies of the relevant court papers and had interviews with the parties, their respective partners, extended family members and other persons considered of significance. [The Single Expert] also interviewed and carried out an assessment on [S] as part of his brief.”

7The detailed report of [the Single Expert], was received by the Court on 17 July 2007 and provided in its summary as follows:

“D. SUMMARY

The father has had regular contact with [S] (7) since she was born, but feels that the mother is attempting to exclude him from being a part of [S]’s life. The mother is concerned about the father’s parenting abilities, especially regarding his and his girlfriend’s sexual behaviour in [S]’s presence. She is also concerned that the paternal grandmother is more involved in [S]’s life [than] the father.

This assessment indicated that both parents have been adequate in their parenting roles towards [S]. This assessment could not find any significant concerns or risk factors pertaining to the father or the mother in relation to [S] or any other family members with regards to their relationship with [S]. Neither the father, nor his girlfriend poses any risk of abuse (sexually, physically or emotionally) towards [S]. Significant protective risk factors are in place which will safeguard [S] should there be any potential risk whether living at the mother’s family or at the father’s family.

The strength of this family is that both parents are resourceful, intelligent, have extended family support and have a lot to offer [S]. Both have well established reconstructed family systems and supportive extended family systems and both parents have developed a close and secure relationship with their child. The positive contributions the parents have been able to make have been significant and evident in [S]’s level of functioning adaptive behaviour and development. [S] has a good relationship with both parents as well as the extended families and sees both parents and extended families equally and would like to have a relationship with both family systems.

From the information obtained during this assessment and as both parents are very committed to taking care of [S] and both have the ability to adequately meet the social, emotional and physical needs it is suggested that both parents have regular contact with [S]. After weighing up all factors and the possible living arrangements of [S] it is suggested that [S] lives in most part with her mother but has very regular access with her father.”

8I noted the progress of the trial before me on 14 and 16 November 2007 was as follows:

“12Much of the first day of the trial was taken up with negotiations between the parties and their legal advisors. To their credit they were able to resolve nearly all of the matters in dispute between them. On the afternoon of the first day of trial, I was presented with a document titled “Minute of Consent Orders” which recorded the terms of settlement which were agreed together with a number of provisions which although forming part of the consent Minute were in fact not agreed and were the subject of submissions to me by counsel for each of the parties.

13The Minute was prepared on the basis of the parties giving undertakings on a “without admission” basis as specified on page 1 of the document and I have accepted undertakings from each of the parties given by their counsel in terms of the Minute. Both parties were present in court when these undertakings were given.

14The parties have now agreed that orders be made for them to have equal shared parental responsibility for [S] in the terms of paragraph 1 of the Minute. I consider this to be very much in [S]’s best interests. Based on the evidence I have read and the Single Expert’s report it is clear that [S] will benefit from the involvement of each of her parents when decisions are made about the major long-term issues relating to her.

15I now turn to consider those parts of the Minute where the parties were either unable to agree or subsequently agreed to a provision different from that set out in the Minute.”

9The matters not agreed included whether the father’s time with [S] was to conclude on the Sunday evening or when he dropped off [S] at school. I preferred the father’s position on this matter, which accorded with [the Single Expert]’s recommendation that there be “regular unsupervised contact with the father’s family … Fortnightly contact between [S] and the father from Thursday after school, returning to school on Monday morning”. I also preferred his position in relation to the father’s time during end of term school holiday periods to end on the Sunday rather than the Saturday.

The law

10This application for costs is to be determined pursuant to Part 12 of the Family Court Act 1997. Section 237(1) provides that, subject to s 237(2) and other sections, “each party to proceedings under this Act is to bear the party’s own costs”. Section 237(2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs as the Court thinks just. Section 237(3) sets out factors that a Court must have regard to in considering what order, if any, should be made as to costs.

s 237(3)(a) the financial circumstances of each of the parties to the proceedings

11At the conclusion of the trial, each party was ordered to file a financial statement. The father’s financial statement filed on 30 November 2007 discloses an average weekly income from self-employment of about $600 per week. His assets, including a home valued at $850,000, total $974,992 and his liabilities of a mortgage, bank loan and tax debt total $147,735. He has total net assets of $827,257.

12The mother’s financial statement filed on 17 December 2007 discloses nil income from self-employment. Her living expenses and home mortgage are met by her partner. Her brother pays a mortgage on her [suburban] units of $577 per week by way of a loan, to be repaid when the units are sold. Her assets which are said to total $1,340,190 include a home jointly owned with her partner, in which her interest is worth $415,000, and two units held in her name valued at $460,000 each. She describes her liabilities in the main as including a joint home mortgage of which her share is $275,000, a joint mortgage with her brother of which her share is $366,145, a personal loan of $43,000 from her brother and a potential capital gains tax liability on the sale of the units. Her liabilities total $716,795. The mother therefore has net assets of $623,395.

13It is therefore apparent from the mother’s financial statement that she has minimal income and minimal liquid assets and, if a costs order was made against her, it is likely that she would be required to either borrow funds or dispose of assets to meet any such order. In correspondence addressed to the Court dated 24 January 2008, the mother’s solicitors confirmed that both of the mother’s units are on the market for sale.

14In my opinion, the mother is in a position to pay or at least make a contribution towards the costs of the other party.

s 237(3)(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party

15Neither party is in receipt of legal aid.

s 237(3)(c) 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

16In his submissions, the father drew attention to:

(a)the mother’s application to relocate to [the North-west], which was later abandoned;

(b)the mother’s application that the father’s time with the child be supervised, which position was maintained to the date of trial; and

(c)the mother’s instructions to her solicitors to correspond “on innumerable occasions throughout the proceedings, regarding what could be considered as minor day-to-day matters more appropriately addressed between the parties themselves”.

17The Single Expert’s clearly expressed conclusion was that “[t]here are no indications that either of the parents needs to be supervised whilst [S] is in their care”. This report and its recommendations should have led to discussions between the parties as to whether supervision of the father’s time with [S] was in fact appropriate.

s 237(3)(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court

18The father brought a contravention application on 21 November 2006. The listing allocated for the application was vacated by consent, and the father later sought to re-list it. It was on 18 July 2007 subsequently listed to be heard concurrently with the substantive proceedings. I granted the father leave at the conclusion of the trial to withdraw the application.

s 237(3)(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings

19The father’s submissions were as follows:

“78. The Mother has been wholly unsuccessful in these proceedings.

79.On the matter being stood down on the morning of the first day of Trial, she then agreed to the vast majority of the Orders sought by the Father in his Minute of Orders Sought filed 8 August 2007 (orders which had then been available to her for some 3 months).

80.The orders she had sought in a Minute of Orders Sought filed on her behalf on 8 August 2007 were largely abandoned.

81.The remaining matters not agreed were determined by rulings of the trial Judge.

82.Those matters were determined wholly in accordance with the Father’s proposals.”

20It is my conclusion this is a significant factor supporting the father’s application for costs.

s 237(3)(f) whether a party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings and the terms of any such offer

21The father submitted “[t]hese proceedings relate solely to children’s matters and this factor is therefore not applicable”. The mother submitted that “[n]o offer of settlement was made by either party”.

s 237(3)(g) such other matters as the court considers relevant

22This matter was largely resolved by consent and without me making findings in relation to the disputed matters. It was conceded by the father that the issue of costs was not raised during the negotiations between the parties. The mother submits that it was incumbent on the father to make known to her that he was intending to apply for costs. Whilst the mother may have reasonably expected the father during the negotiations to convey any intention he had to seek costs, his failure to do so, in my opinion, is not a bar to the application he now seeks to make. The application must therefore be dealt with in accordance with the usual principles.

Conclusions

23It is my conclusion the content of the Single Expert’s report should have significantly narrowed the parameters of the dispute between the parties and led the mother to reconsider her application for supervision of the father’s time with [S]. This conclusion, combined with the fact that the father was largely successful in the proceedings supports an order for costs being made against the mother. After publication of the Single Expert’s report, the mother’s decision to maintain her case for supervised contact was not reasonable and resulted in the father unnecessarily incurring legal costs.

24The table set out in the father’s submissions filed 30 November 2007 indicate that his actual costs billed from 1 July 2007 to 28 November 2007 total at least $43,935 (adjusting the 28 November 2007 figure). I anticipate this figure would be lower at scale.

25I have considered the written submissions of both parties. The father pointed to the circumstance warranting the exercise of discretion to award costs on an indemnity basis identified in Munday v Bowman (1997) FLC 92‑784:

“The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)).”

26In this case, however, I am not prepared to order indemnity costs. The manner in which this case has been conducted does not in my view take the circumstances of this case to those of an “exceptional kind”: Kohan and Kohan (1993) FLC 92‑340 at p 79,614. In my opinion, the mother should pay the father’s costs from 17 July 2007 to 16 November 2007 inclusive on a party/party basis, to be assessed if not agreed.

Proposed orders

1.The Respondent, [MS E], pay to the Applicant, [MR K], his costs of the proceedings from 17 July 2007 to 16 November 2007 inclusive, on a party/party basis as agreed, or failing agreement as assessed.

2.The Applicant’s application for costs be otherwise dismissed.

I certify that the preceding [26] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate