Kedis and Kedis (No.3)
[2018] FCCA 237
•5 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KEDIS & KEDIS (No.3) | [2018] FCCA 237 |
| Catchwords: FAMILY LAW – Costs – Respondent mother seeks costs after father discontinued parenting proceedings – matter has lengthy history – previous proceedings – father does not address issues raised in 2013 judgment after final hearing – father’s non-compliance. |
| Legislation: Family Law Act 1975, ss.117(1), 117(2A) |
| Cases cited: Kedis & Kedis [2014] FamCAFC 119 Kedis & Kedis [2013] FCCA 1959 |
| Applicant: | MR KEDIS |
| Respondent: | MS KEDIS |
| File Number: | MLC 2787 of 2013 |
| Judgment of: | Judge Harland |
| Hearing date: | By way of written submissions |
| Date of Last Submission: | 12 January 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2018 |
REPRESENTATION
| The Applicant: | Self-represented |
| Solicitors for the Respondent: | Jeanne Gorman |
ORDERS
That within 90 days the applicant pay the respondent’s costs in the sum of $34,883.
IT IS NOTED that publication of this judgment under the pseudonym Kedis & Kedis (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2787 of 2013
| MR KEDIS |
Applicant
And
| MS KEDIS |
Respondent
REASONS FOR JUDGMENT
The mother makes an application for costs after the with respect to the father’s application for parenting orders. The father filed a notice of discontinuance on 17 June 2017.
These proceedings have a lengthy history. Judge Hartnett delivered judgment on 29 November 2013 with respect to property and parenting issues.
The father appealed Judge Hartnett’s proceedings. In Kedis & Kedis [2014] FamCAFC 119, Justice Strickland struck out the husband’s appeal as his notice of appeal did not contain any proper grounds of appeal. The father had been given an adjournment to enable him to file an amended notice of appeal but he did not do so.
I will not set out the history of the previous proceedings in detail. They are encapsulated in the two judgments by Judge Hartnett.[1]
[1] See, Kedis & Kedis [2013] FCCA 1959; Kedis & Kedis [2015] FCCA 3215.
It is important to note that the orders Judge Hartnett made on 29 November 2013 provided for the father to spend time with the children on alternate weekends for two hours at the Berry Street Contact Centre with the husband to be responsible for the costs. He was also ordered to attend a parenting orders program and a Men’s Behavioural Change program with the ‘heavy metal group program’.
Judge Hartnett also made a notation that if the father completed the courses and spent at least 24 periods of supervised time with the children and obtained a report from Berry Street Contact Centre he will be at liberty to make an application with respect to spending time with the children and the conditions with respect to spending that time.
Importantly, Judge Hartnett made findings that the father had subjected the mother to significant emotional and physical violence which on occasion took place in front of the children. Her Honour also refers to “numerous offensive, derogatory and abusive texts” the father sent to the mother post separation and his continuing psychological abuse of the children and increasingly erratic and unpredictable behaviour.[2]
[2] Kedis & Kedis [2013] FCCA 1959, [30].
Her Honour also observed that, after a s.11F Memorandum highlighted concerns about the father and the children’s safety, if they were to spend unsupervised time with their father he failed to “address the issues of violence and parental capacity that would have enabled him to spend unfettered time with the children.”[3] Judge Hartnett also sets out the evidence of the family consultant at some length. Her evidence about the father’s lack of insight and intolerance to other’s views points and his role modelling for the children was highly concerning. I will not repeat that evidence which was accepted by the Court in detail. The Court found the father “acts without empathy, he is without remorse and without consideration for the needs of others.”[4] He continued to psychologically abuse the children post separation and had no insight into this. His conduct included interrogating the children and threatening and abusing their mother in their presence. At that hearing the father sought equal shared parental responsibility and the children live equally with the parents on a week about basis. Judge Hartnett observed that his application was not supported by evidence, lacked insight on his part and that pursuing that application at the hearing had an element of harassment of the mother. Further, she found that the father had no capacity to prioritise the children’s needs or to understand them.
[3] Ibid, [42].
[4] Ibid, [75].
Judge Hartnett delivered another judgment on 4 December 2015 in relation to compensation and costs issues as a result of the husband’s conduct.
The father filed a fresh parenting application on 5 August 2015. That application came before me on 5 October 2015. In his initiating application the father sought interim orders that his time be supervised by his parents on alternate weekends including overnights and on other occasions. His application needs to be seen in the context of the very serious findings about the father’s parenting capacity. In his new supporting affidavit the father details problems with the orders and what he says are the mother’s contravention of orders and the limitations of having supervised time a contact centre but does not address the real concerns raised in the previous proceedings about the family violence he was responsible for, his parenting capacity and lack of insight. It is concerning that he says “in the event that the court demands supervision his parents agree to supervised time at their home”.
That memorandum dated 25 May 2015 was prepared in the context of the contravention proceedings the father instituted. Most significantly the father does not address the concerns raised in that report which are consistent with the concerns identified at the trial in 2013. Under issues in dispute the family consultant records:
Mr Kedis appears to continue to lack any capacity for reflective behaviour or insight in relation to his previous behaviour towards the children or the mother. Thus, the level of risk it poses to the children and Ms Kedis remain concerning.
She also recorded that the father seemed consumed by the ongoing financial dispute and his sense of injustice with respect to the final parenting and financial orders. She further recorded that the husband acknowledged that he was psychiatrically assessed when in prison in 2014 but blamed the mother for his state of mind. He did not continue with any therapeutic intervention. The father’s current functioning was unclear.
The father states in his affidavit that he reviewed the s.11F Memorandum but it is of great significance that the father does not address any of those concerns despite being legally represented when his application was prepared. The orders he sought to move away from professionally supervised time were completely unrealistic. On 5 October 2015 I made orders for the parties to enrol with family relationship centre at (omitted), the father to spend supervised time with the children, for the father to file any psychiatric assessment undertaken whilst he was imprisoned; for both parties to be psychiatrically assessed by the same psychiatrist; and for that psychiatrist to be provided with any assessments of the father undertaken whilst he was imprisoned.
I directed that the matter be listed before me in my February 2016 duty list. That date was vacated by consent on the request of the parties in Chambers and the matter next came before me on the 25 July 2016. On 25 July 2016, I adjourned the matter for an interim contested hearing on 20 October 2016 and listed the matter for final hearing commencing on 19 June 2017 with an estimated hearing time of 3 days.
Despite the long lead up time to the interim hearing, the father only filed an amended initiating application two days before the scheduled interim hearing. The amended application does not address the interim orders sought but somewhat surprisingly, bearing in mind the previous proceedings, an order for equal shared parental responsibility and week about arrangement with the children was sought. The supporting affidavit contains 110 paragraphs with unpaginated annexures in excess of well over one hundred pages. The annexures included in the psychiatric assessments of the mother and father both dated 2 March 2016, the psychological assessment of the father dated 23 April 2014 and 7 May 2014 as well as various other documents. Due to the late filing I adjourned the interim hearing to 9 March 2017.
The father filed an application in a case on 28 November 2016 with an affidavit in support and filed further affidavits on 27 February 2017 and 3 March 2017. One of the things the husband complains about in his affidavit sworn 18 November 2016 and filed on 28 November 2016 is that that the mother’s solicitor was not willing to negotiate with his solicitor with respect to his request to spending unsupervised time with the children in the lead up to the interim hearing in October. In the context of the previous proceedings and the ongoing serious concerns of risk this is hardly surprising and is not a reasonable criticism of the mother. Again it must be pointed out that the father was legally represented at the time.
In his affidavit sworn and filed on 27 February 2017 the father talks about not pursuing his application to use the family contact service that he did not want to subject himself and the children to supervised contact and talks about the children being punished by it. He also talks about his parents deteriorating health but still does not address the risk issues. Instead he blames the mother. In his affidavit sworn and filed on 3 March 2017 the father says he believes that he has complied with everything required of him. He says he has addressed the concerns raised in the section 11F report and states he does not need to be further psychiatrically assessed. That simply is not the case given that Dr G pointed out inconsistencies in the history the father had given him and the psychologist he saw in prison and the fact that he did not provide all the documents. He recommended a further psychiatric assessment. The father now said in that affidavit that he did not need a further assessment and could not afford one.
The mother filed an amended response seeking that the father’s initiating application and application in a case be dismissed and the father pay costs on a solicitor client basis and that order 5 of the orders made on 29 of November 2013 be discharged. In her supporting affidavit the mother points out ongoing issues of concern with respect to the father’s conduct at the supervised sessions and the problems with the psychiatric assessment.
After hearing submissions on 9 March 2017 I ordered that the parties do all acts and things to enrol with the Ringwood Contact Centre with all the costs associated with such time to be at the father’s expense and also reappointed the Independent Children’s Lawyer (“ICL”) and adjourned the matter to 16 May 2017.
On 12 May 2017 the father filed a further affidavit where he complains that the mother did not pay the assessment and intake fee the contact service charged in the sum of $165. He interpreted the orders as not requiring him to pay the cost of registration. That was an unreasonably narrow interpretation of the orders and somewhat concerning that this was the subject of correspondence between lawyers and his affidavit at a cost considerably more than $165. Instead the father could have paid it even if he thought he was not obliged to in order to see his children as soon as possible. It is another indication of his attitude.
The mother also swore and filed an affidavit on 12 May 2017 addressing that dispute and her ongoing concerns about inappropriate comments the father makes to the children during his telephone calls with them.
When the matter came before me on 16 May 2017 I vacated the final hearing which was due to commence next month as the matter was clearly not ready. I listed it for a final hearing commencing 24 September 2018 with telephone mention on 20 November 2017.
The 2 June 2017 the ICL issued subpoenas to the children’s schools and to Victoria police. The father filed a notice of objection to the subpoenaed to Victoria police on 15 on June 2017 and filed a notice of discontinuance of his parenting application at the next day.
On 20 November 2017 the matter was mentioned before Judge Bender who varied order five of the orders made on 29 November 2013 just with respect to telephone time to the effect that the mother facilitate the children telephoning the father each Sunday at 4:00pm with the mother being at liberty to monitor the calls and terminate them in the event the husband started discussing these proceedings with the children and/or denigrates the wife and the family to the children or either of them. She discharged the appointment of the ICL and made orders for the filing of written submissions with respect to costs.
The written submissions of the mother’s solicitor points out some of these difficulties and submits that throughout the proceedings the father has demonstrated behaviour consistently in conflict with the orders that he was seeking and has caused the mother to incur significant costs. She refers to being required to respond to his initiating application and applications in a case, including the multiple affidavits he filed which contained considerable repetition of previous affidavits.
The mother had her costs assessed by a costs consultant on the basis of the costs agreement that the mother signed with her and seeks costs in the sum of $34,388.75 which includes $8,890 in Counsel fees, other disbursements and $25,493 in solicitor-client costs
The father prepared his submissions without a lawyer and does not properly engage in the issues but rather complains that the mother has breached orders, incurred legal costs through lying and complains that the children have not been the primary concern of the lawyers including the ICL.
He blames his lawyers for some correspondence he says was sent without his consent and says it is not his problem that the mother has incurred costs because of this. The mother’s lawyers were obliged to respond to correspondence sent by the father’s lawyers. Whatever complaint the father may have about his former lawyers is not relevant to the mother’s costs application. As is consistent with the father’s attitude throughout previous proceedings, and these proceedings, he takes no responsibility for the position he is in. Rather, he blames others and alleges that the mother has psychiatric issues and refers to the children suffering because of the mother’s wrongdoing. He also criticises the mother’s lawyer for incurring costs for the mother responding to his repetitive material. The father’s submissions continue his denigration of the mother. He is critical of the psychiatrist for requesting documentation and refers to the mother needing psychiatric assessment.
The father denies there was family violence between him and the children. He annexes texts and photos sent by his son and states that it is obvious from these that there was no family violence. It is concerning that the parties’ eldest son is texting his father without the mother’s knowledge and is mirroring the father’s bitterness about the mother, the police, and the Court. These annexures are not evidence of the mother damaging the children. They are evidence that the father continues to have complete disregard for the impact of his contact on the children and the mother and has not addressed any of the concerns which have been highlighted to him since at least 2013. Given his lack of insight into these issues and his bitterness and determination to blame others without taking any responsibility for himself, unfortunately this is unlikely to change.
I agree that the texts on their face are disturbing but not for the reasons submitted by the father.
There are findings of fact after a contested final hearing where the evidence of the parties and the expert were tested. The father was responsible for coercive controlling violence of the mother and children.
He continues to denigrate the mother and the texts indicate an undermining of the mother’s parenting by the father.
The person who is responsible for the current state of affairs is the father, not the mother, the Court, the lawyers or anyone else.
What the father needed to do in order to propose that his time move away from professionally supervised time at a contact centre was made very clear to him in the 2013 judgment and subsequently.
The father does not take any responsibility for his circumstances and those of the children. Instead he continues to blame other people. He is the only one who can change the situation. He could refrain from denigrating the mother.
In order for the Court to make a costs order in favour of the parties there must be justifying circumstances as set out in s.117(2A) of the Family Law Act 1975 (Cth) (”Family Law Act”). I will address each of these matters in turn.
(a) The financial circumstances of each of the parties to the proceedings
The mother’s financial circumstances are modest. The father does not address his financial circumstances. In his submissions except to say he has been “drained of every dollar” by the lawyers. He blames lawyers on both sides for their respective costs.
The mother seeks indemnity costs because of the father’s conduct and the financial hardship these further proceedings have caused to her circumstances where she is not in receipt of legal aid and relies on modest income provided by family tax benefits and part-time work as a (occupation omitted). She does not receive child-support from the father.
(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid
Neither party is in receipt of legal aid.
(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
I have referred to the father’s conduct above. I will not repeat those comments here.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
This factor is not relevant. Whilst the father makes complaints about the mother breaching orders, there were separate contravention proceedings. The father commenced these proceedings without properly addressing the concerns about this parenting capacity.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The father discontinued the proceedings. He has been wholly unsuccessful. The father did not address the issues he needed to in order to progress his case.
(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer
Not relevant.
(g) Such other matters as the court considers relevant.
It is important to note that in family law matters s.117(1) of the Family Law Act provides that the usual rule is that each party shall be responsible for his or her own costs.
The mother seeks her costs in the sums she has had amended by a costs consultant and disbursements. In order to seek indemnity costs it is necessary to know what the departure is from the scale.[5]
[5] Prantage v Prantage [2013] FamCAFC 105.
To make a costs order at all is a departure from the ordinary rule. Schedule 1 of the Federal Circuit Court Rules2001 (Cth) (“FCC Rules”) sets out a scale of costs to be applied in family law proceedings and in General Federal Law proceedings. It is an events based costs scale. Part 21 of the FCC Rules deals with costs and disbursements. If the court decides that it is appropriate to order costs then in usual cases the scale of costs should apply. It is designed to avoid parties having to go through the expense and delay of having bills of costs assessed.
Several authorities address the circumstances where indemnity costs may be appropriate.[6]
[6] In the Marriage of Kohan and Kohan (1993) FLC 105; Prantage v Prantage [2013] FamCAFC 105.
In the Marriage of Munday and Bowman 22 Fam LR 321 Holden CJ of the Family Court of Western Australia observed that indemnity costs should only be made in exceptional circumstances.
Exceptional circumstances may include:
a)Making allegations of fraud knowing them to be false;
b)Evidence of misconduct leading to loss of time to the court and other parties;
c)Fact that proceedings were commenced for an improper purpose;
d)Proceedings started wilfully disregarding known facts or law;
e)Making allegations which shouldn't have been made or unduly prolonging the case through groundless contentions;
f)Imprudent refusal to accept an offer of compromise;
g)Costs against someone in contempt.
The relevant circumstances that support indemnity costs are c) and d).
Whilst the mother has not produced her costs in accordance with the FCC scale she has had her costs assessed in accordance with her solicitors’ costs agreement as well as disbursements for barristers fees. Considering the length of time the matter was before the Court and the number of appearances, these costs are reasonable.
Throughout the proceedings the mother has been responding to the father’s applications and not bringing her own.
Having considered the circumstances of this case I am comfortably satisfied that a costs order is justified and that it is appropriate that the father pay the mother’s costs as assessed in the sum of $34,383, which is verified by the annexures to the mother’s submissions.
Impecuniosity is not a bar to making a costs order. The father has not provided details of his financial circumstances. Whilst this order may cause him hardship it would cause the mother greater hardship if costs were not awarded in her favour. She has sole care of the children and does not receive child support. She had to respond to the father’s initiating application and interim applications. I will give him 90 days to pay.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 5 February 2018
Key Legal Topics
Areas of Law
-
Civil Procedure
Legal Concepts
-
Costs
0
4
3