Kennett and Nickson and Ors (No.2)

[2017] FCCA 2247

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENNETT & NICKSON & ORS (No.2) [2017] FCCA 2247

Catchwords:
FAMILY LAW – Parenting proceedings – costs – indemnity costs – consent orders – expert witness.

Legislation:
Family Law Act 1975, s.117

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561
Hawkins & Roe (2012) 47 Fam LR 526; [2012] FamCAFC 77
In the Marriage of I (No.2) (1995) 125 FLR 332; (1995) 22 Fam LR 557; (1995) FLC 92-625
In the Marriage of McDonald (1994) 122 FLR 401; (1994) 18 Fam LR 265; (1994) FLC 92-508
PBF v TRF (2005) 191 FLR 294; (2005) 33 Fam LR 123; [2005] FamCA 158

Applicant: MS KENNETT

First Respondent: MR NICKSON

Second Respondent: MR A NICKSON

Third Respondent: MS B NICKSON

File Number: MLC 7675 of 2014

Judgment of: Judge Riley

Hearing date: 18 July 2017

Date of last submission: 27 July 2017

Delivered at: Melbourne

Delivered on: 15 September 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the respondents: Mr Macfarlane

Solicitors for the respondents: Novatsis & Alexander

ORDERS

1. The respondents pay $1,680 towards the applicant’s costs of the proceeding.

NOTATIONS

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7675 of 2014

MS KENNETT

Applicant

And

MR NICKSON

First Respondent

MR A NICKSON

Second Respondent

MS B NICKSON

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for costs in relation to a parenting proceeding.  The substantive proceeding was dealt with by his Honour Judge Wilson.  Following judgment in the substantive proceeding on 17 May 2017, His Honour recused himself.  The costs issue has fallen to me to determine. 

2. The mother seeks costs on an indemnity basis against the respondents, who are the father and the paternal grandparents.  The mother was represented at no cost to herself by legal aid lawyers at the time that she commenced the proceeding until she engaged Pearsons Lawyers Pty Ltd as private lawyers on or about 27 May 2016.  Pearsons acted for the mother during part of the interlocutory stages of the proceedings, being from 27 May 2016 until 30 August 2016.  The mother was not represented for any part of the trial, which began on 27 February 2017.

3. The background to the matter is that final parenting orders were made on 24 March 2015 by consent in respect of X who was born on (omitted) 2012.  At the time the final orders were made, X was about two and half years old.  He has been diagnosed as being at level 2 on the autism spectrum and as having global developmental delay.  The final orders made on 24 March 2015 provided for X’s parents to have equal shared parental responsibility for him, for X to live with his mother, and for X to spend two hours each Wednesday and Friday with his father.

4. After the final orders were made on 24 March 2015, the mother alleged that the father was violent towards her and threatened to kill her.  The father has been charged with assault and threatening to kill but his criminal trial has not yet taken place.

5. The mother filed the current proceedings on 22 September 2015.  She sought the suspension of the 2015 final orders for X to spend time with his father.

6. Interim orders were made not by consent on 14 December 2015 which provided for X to spend two hours with his father each Monday and Wednesday and on Christmas Day in 2015. That time was to be supervised by the paternal grandmother, unless otherwise agreed between the parties.

7. Further interim orders were made not by consent on 10 February 2016 which required changeover to occur under the supervision of the paternal grandmother until arrangements could be put in place for changeover to occur at Berry Street. It was also ordered that X spend time with his father for two hours on 13 February 2016. It was also ordered that, with limited exceptions, the orders made on 14 December 2015 remained in full force and effect. It was noted in the orders that the parties had agreed that upon the commencement of changeover at Berry Street, X’s time with his father take place from around 10am to 12 noon on Thursdays and from around 9:45am to 11:45am on Saturdays. The matter was adjourned for interim hearing on 18 August 2017.

8. On 18 April 2016, the father and his parents filed applications in a case returnable on 14 June 2016.  The father sought orders that X spend time with him from 9am until 6pm each Saturday or Sunday.  The paternal grandparents sought orders for X to spend time with them each Thursday and Friday between 9am and 5pm, and at various other times.

9. Interim orders were made not by consent on 14 June 2016 providing that the interim parenting orders made on 10 February 2016 remain in full force and effect.  The cover sheet of the orders made on 14 June 2016 indicates that the mother was represented by Victoria Legal Aid on that day, but that is a clerical error.  The mother was in fact represented by Pearsons at that time.

10. On 18 August 2016, orders were made by consent for X to spend time with his father and/or the paternal grandmother each Saturday, from 9am to 1pm, gradually increasing to each Saturday from 9am to 4pm.  The mother was represented by Pearsons at the time of the interim hearing on 18 August 2016.

11. A family report was prepared on 16 January 2017.  It recommended that:

    a)interim arrangements remain in place until the outcome of the criminal charges against the father were known and to allow further monitoring;

    b)X continue living with his mother, if she is able to facilitate time between X and his father;

    c)until the criminal proceeding against the father is finalised, X continue to spend time with his father from 9am until 4pm each Saturday, under the supervision of the paternal grandmother and with changeover to be facilitated by the maternal and paternal grandparents;

    d)if the criminal charges against the father are not substantiated, X’s time with his father should increase incrementally to overnight time; and

    e)if the criminal charges are substantiated, then X’s time with his father should be reduced to four hours each Saturday under supervision.

12. The final hearing commenced on 27 February 2017.  At the outset of the trial, the independent children’s lawyer declined to express a firm position, preferring to hear the evidence before doing so. However, the independent children’s lawyer indicated that his preliminary view was that there ought to be equal shared parental responsibility. Ultimately, the independent children’s lawyer proposed that X’s parents have equal shared parental responsibility and that X spend time with his father on a gradually increasing basis (Tr.p.1023), with X to spend time with his father from 9am to 5pm each Saturday under the supervision of the paternal grandmother for three months, then from 5pm each Friday to 6pm Saturday for three months, and then from 5pm Saturday to 6pm Sunday each alternate week.

13. The trial of the substantive application lasted 11 days.  The mother was successful in the substantive application, in that final orders were made by Judge Wilson:

    a)providing for the mother to have sole parental responsibility for X;

    b)providing for X to live with his mother;

    c)providing for X to spend no time with his father;

    d)providing for X to spend no time with his paternal grandparents unless the mother agreed;

    e)permitting the mother to relocate; and

    f)permitting the mother to change X’s family name from the father’s family name to her family name.

14. There was some debate over who caused the trial to take so long.  The mother said that she was cross-examined for days and some of that was dilatory and unnecessary.  The respondents said that the mother was unrepresented, so that added to the length of the hearing.  Judge Wilson criticised the independent children’s lawyer for covering the same ground in cross-examination as the father.  I consider that probably everyone contributed to the excessive duration of the trial. However, for the reasons that follow, it is unnecessary to determine that question.

The claim for costs

1. The mother claimed the following costs:

   a)Pearsons  $26,000.00

   b)loss of attendance at work  $19,800.00

   c)replacement casual worker  $4,752.00

   d)cost of additional day care  $654.06

   e)Dr C  $1,600.00

   f)DHS  $25.00

   g)printing and copying  $550.00

   h)subpoena filing  $55.00

   i)car parking  $770.00

   Total  $55,156.06

2. Although the mother has claimed $55,156.06 in costs, by my calculation, the total costs claimed add up to $54,206.06.

3. The mother, at most, could only recover legal costs associated with the proceedings.  She cannot recover her lost wages, the cost of paying another person to replace her at work, the cost of childcare or the cost of car parking.  Those items are not legal costs.

4. The legal costs that remain are as follows:

   a)Pearsons  $26,000.00

   b)Dr C  $1,600.00

   c)DHS  $25.00

   d)printing and copying  $550.00

   e)subpoena filing  $55.00

   Total  $28,230.00

5. The $26,000 claimed in respect of Pearsons was somewhat overstated.  The mother produced a trust statement which she said indicated that the total she paid to Pearsons was $22,357: exhibit 1.  That figure was not disputed by the respondents and the mother accepted that it was the correct figure.  I also accept that figure.  The costs charged by Pearsons relate to the period 27 May 2016 until 31 August 2016.  During that time, there were two interim hearings, being the interim hearing on 14 June 2016 and the interim hearing on 18 August 2016.

6. The mother said that the expenses of $1,600 in respect of Dr C were expert witness expenses paid by her.  The respondents did not accept that the mother had paid that amount to Dr C.  Following the hearing of the costs application on 18 July 2017, the mother was given 14 days to file and serve evidence that she had paid that amount to Dr C.  The mother did file an affidavit evidencing that payment, and I accept that the mother paid that amount to Dr C.

7. The mother said that she was required to pay Dr C witness expenses of $800 per day.  The parties agreed that Dr C spent two days at court, including the first day of the hearing.  His evidence was not called until day 11 of the hearing.  

8. The mother said that the $25 in respect of DHS was conduct money for a subpoena.  The respondents did not dispute that sum and I accept that the mother incurred it, in respect of a subpoena to the Department of Health and Human Services.

9. The respondents did not accept that the mother had incurred expenses of $550 for printing and copying.  The mother said during the hearing before me on 18 July 2017 that she had incurred that expense at Officeworks, over a period of time, and that she had the receipts.  Following the hearing of the costs application, the mother was given 14 days to file and serve evidence that she had incurred costs of $550 for printing and copying.  The mother did file an affidavit but said in it that she had been unable to locate the receipts showing that she did in fact incur $550 for printing and photocopying.  It seems obvious that the mother would have incurred some expense for printing and photocopying in the running of the substantive proceeding. However, $550 does not seem to me to be inherently realistic or probable.  In the absence of any evidence about the actual amount incurred, and in view of the fact that the respondents do not accept the amount claimed, I am not inclined to allow any sum for printing and photocopying.

10. The mother said that the $55 in respect of subpoena filing was for the filing fees for a subpoena to the Victoria Police or the Department of Health and Human Services.  The mother said that she issued numerous subpoenas but was only required to pay a filing fee in respect of one of them.  The respondent did not dispute the amount of the filing fee and I accept that the mother incurred it.

11. The mother sought that the respondents pay her costs on an indemnity basis.  Ultimately, the total amount for which the mother has a potential claim is as follows:

    a)Pearsons  $22,357.00

    b)Dr C  $1,600.00

    c)DHS conduct money  $25.00

    d)subpoena filing  $55.00

    Total  $24,037.00

The legislation

1. Costs applications in family law proceedings are governed by s.117 of the Family Law Act 1975 (“the Act”). Relevantly, s.117(1), (2) and (2A) of the Act provide that:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)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), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (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;

   (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;

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

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (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; and

   (g)such other matters as the court considers relevant.

Authority on indemnity costs

1. The leading case on indemnity costs is Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234; (1993) 118 ALR 248; (1993) 28 IPR 561. That case is a decision of Sheppard J, sitting in the Federal Court. After reviewing the case law, his Honour set out the following principles relating to costs and indemnity costs:

   2.The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of O 62, rr 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.

   3.This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. …

   4.In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. …

   5.Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud …; evidence of particular misconduct that causes loss of time to the Court and to other parties …; the fact that the proceedings were commenced or continued for some ulterior motive … or in wilful disregard of known facts or clearly established law …; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions …; an imprudent refusal of an offer to compromise … and an award of costs on an indemnity basis against a contemnor … . Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.

   6.It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.

Family Court authorities on costs

1. In their written submissions, the respondents referred to a number of cases on costs.  In the case of Hawkins & Roe (2012) 47 Fam LR 526 at [14]; [2012] FamCAFC 77, May, Thackray and Ainslie-Wallace JJ said:

   In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

2. In the case of PBF v TRF (2005) 191 FLR 294 at [41]; (2005) 33 Fam LR 123; [2005] FamCA 158, Kay, Warnick and Boland JJ said, in relation to s.117 of the Act:

   A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs 2(2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

3. In the case of In the Marriage of McDonald (1994) 122 FLR 401 at 408-409; (1994) 18 Fam LR 265; (1994) FLC 92-508, Mushin J said:

   … Circumstances such as a totally unmeritorious case on one side, an attempt to vary a custody order which does not even establish a prima facie case, the withholding of evidence, the giving of false evidence and like matters are common bases for such an order [for costs]. However, where no factor of this type exists, there would usually need to be a very significant disparity in financial circumstances between the parties before a costs order were made.

1. The Full Court of the Family Court, in the case of In the Marriage of I (No.2) (1995) 125 FLR 332 at 333; (1995) 22 Fam LR 557; (1995) FLC 92-625, disagreed with McDonald.  Nicholson CJ, Ellis and Buckley JJ said: at 333:

   With respect to Mushin J, we see nothing in the provisions of s 117 to justify the approach to the question of costs in custody or any other proceedings suggested by him. The matters to which he referred are matters which, in an appropriate case, would be taken into account in determining whether the circumstances justified the making of an order for costs in a particular case. However, whether such matters exist or not, the other relevant matters referred to in s 117(2A) must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs. The financial circumstances of the parties is but one of those matters and those circumstances must be taken into account whether or not there is a very significant disparity in financial circumstances between the parties.

The effect of the law on this case

1. I take it that the position in family law matters, particularly in parenting matters, is that parties will normally bear their own legal costs, but a party may be ordered to pay another party’s legal costs if the circumstances warrant such an order.  Costs orders can be made in family law matters on an indemnity basis or on a party/party basis, which is otherwise known as “on scale”.

Section 117 issues

a.          financial circumstances

1. In her affidavit filed on 5 June 2017, which replied to the written submissions filed by the respondents on 22 May 2017, the mother set out her financial position as follows:

   a)weekly income:

   i)from (employer omitted):  $300;

   ii)from Centrelink:  $400;

   b)weekly expenses:

   i)rent:  $220;

   ii)day care:  $89.19;

   iii)food:  $80;

   iv)credit card:  $50;

   v)utilities etc:  $150; and

   vi)X’s expenses:  unspecified.

2. By my calculation, that amounts to income of $700 per week and expenses of about $590 per week, plus X’s expenses.  The mother also said that Judge Wilson had permitted her to relocate, and she was finding the expenses associated with relocation to be higher than she had expected.

3. In the respondents’ written submission filed on 22 May 2017, the father said that he had previously been employed in (employment omitted) but had been unemployed since 21 March 2017.  He said he receives Newstart Allowance of about $235 per fortnight.  That appears to be a mistake.  I understand that he would receive about that amount per week.  He said he has a new wife, who does not work, and a young baby.  He said he is substantially supported by his father.  He said his weekly expenses are:

   a)rent:  $335;

   b)food:  $125;

   c)baby food:  $30;

   d)personal loan repayments:  $190;

   e)repayments for his wife’s personal loan:           $120;

   f)utilities etc:  unspecified.

4. By my calculation, the father has income of about $235 per week, plus support from his father, and expenses of $800, plus utilities.

5. In the respondents’ written submission filed on 22 May 2017, the second respondents, being the paternal grandparents, said that:

   a)they are retired people who live in an unencumbered home;

   b)the paternal grandfather works as a (occupation omitted) from which employment he earns about $250 per week;

   c)he also draws down about $1,000 per week from his superannuation;

   d)his excess weekly income is used to assist his son, the first respondent; and

   e)the second respondents have incurred about $152,000 in legal costs for these proceedings.

6. The paternal grandmother deposed in her affidavit sworn on 5 June 2017 that she is engaged in home duties and has no income.

7. None of that evidence was challenged and I accept it.

b.          legal aid

1. In relation to legal aid, the mother said that she was initially represented by Victoria Legal Aid (“VLA”).  She said that she was not required to pay VLA anything or give VLA a caveat or such like.  The mother told the court that VLA represented her from prior to her commencement of this proceeding on 22 September 2015 until Pearsons filed a notice of address for service on 27 May 2016.  The mother explained that she did not have to pay any court filing fees or any expenses referable to the period when VLA acted for her.  Consequently, the mother cannot receive an award of legal costs for the legal work done during the period that VLA acted for her, including the commencement of the proceedings.

2. The respondents were not legally aided at any time.

c.           the conduct of the parties in relation to the proceedings

1. With regard to the conduct of the parties in relation to the proceedings, the mother said that the father had assaulted her and threatened to kill her.  The father has been charged with criminal offences in relation to these matters.  The trial in this court was finalised before the criminal proceedings were heard.  The father denied in this court the allegations against him.  Judge Wilson found, on the balance of probabilities, that the father had assaulted the mother and threatened to kill her: [214] of his Honour’s reasons for judgment.  However, the respondents emphasised that it was not alleged that any of these incidents occurred after these proceedings had been commenced by the mother.

2. The conduct of the parties in relation to the proceedings normally relates to procedural issues that arise once the proceedings have commenced.  However, it seems to me that the father’s assault and threats could be construed as conduct in relation to the proceedings, in the sense that they were the catalyst for the mother bringing the proceedings and seeking a suspension of X’s time with his father.

3. The mother also said that the paternal grandfather forged her signature, took a case against her to VCAT and was charged with forgery.  However, the charges against the paternal grandfather have been withdrawn.  In any event, it is not clear how these matters, which were taken to VCAT, relate to the costs issues in the current proceedings.

4. The mother also said that the paternal grandmother had been found to have breached her undertaking to the court to properly supervise X’s time with his father.  Judge Wilson found, at [338] – [341] of His Honour’s reasons for judgment, that the paternal grandmother had permitted the father to get out of his car at changeover when the existing orders required him to remain in his car.  Judge Wilson also found that the paternal grandmother did not accept that she had failed to properly supervise, but sought to debate the point with his Honour.  Breach of an undertaking relates to the conduct of the proceedings. 

5. The mother also noted that Judge Wilson found that all of the respondents were not witnesses of truth.  That finding relates to the conduct of the proceedings. 

6. On the other hand, the respondents said that the mother did not provide an affidavit from Dr C, although she called him to give evidence.  The mother’s failure to provide an affidavit from Dr C clearly involved non-compliance with the rules of court and relates to her conduct of the proceedings.

d.          whether proceedings necessitated by non-compliance with orders

1. The proceedings were not necessitated by the failure of a party to comply with previous orders of the court.  However, the mother argued, in effect, that the proceedings were necessitated by the father’s violence towards her and threats to kill her.  That seems to me to be a relevant consideration, at least under the “other matters” factor.

e.           whether any party has been wholly unsuccessful

1. The respondents were wholly unsuccessful in the final orders, but were largely successful at the hearing on 18 August 2016, which included consideration of their applications in a case that were first listed for hearing on 14 June 2016.

f.           settlement offers

1. There was no suggestion that there had been any relevant offers of settlement.  However, the reality is that the mother ultimately achieved all that she sought.

g.          any other relevant matters

1. The other relevant matters are mentioned elsewhere in these reasons.

Consideration

a.          Pearsons’ fees relating to the interim hearing on 14 June 2016

1. It will be recalled that Pearsons began acting for the mother well after the commencement of the proceedings.  They came onto the record on 27 May 2016, and, according to exhibit 1, first had contact with the mother on about 23 May 2017.  At that stage, the father’s and the paternal grandparents’ applications in a case had been filed and were due for hearing on 14 June 2016. 

2. At that stage, the orders of 14 December 2015 provided for X to spend time with his father for two hours on Mondays and Wednesdays.  It seems that the father obtained work, which made those days and times unviable.  The father wanted to be able to spend time with X on Saturdays.  The mother wanted X’s time with his father to be suspended.  X had not, in fact, spent time with his father since 23 April 2016.

3. It seems that the hearing on 14 June 2016 was in a duty list.  Judge Wilson intimated that he did not have time to hear a full inter partes interim dispute on that day. Counsel also indicated that a psychiatric assessment was imminent.  The parties more or less accepted that the matter would have to go over to 18 August 2016, when the matter was already listed for a half day interim hearing, pursuant to previous orders.

4. The only order made on 14 June 2016 was that the interim parenting orders made on 10 February 2016 remain in full force and effect.  The court also noted on 14 June 2016 that the matter remained listed for interim hearing on 18 August 2016 and final hearing on 20 February 2017.

5. It is noteworthy that the orders made on 14 June 2016 did not include an order that costs be reserved.  That is so even though the mother was represented by an experienced family law barrister at the hearing on 14 June 2016.  Arguably, the court should not make a costs order relating to an interim hearing where there was no express reservation of the costs.  It is implicit in the fact that costs were not reserved that no one applied for costs, and that, by inference, no one thought at that time that it was appropriate for any costs order to be made in respect of that court event.

6. Basically, the father’s and paternal grandparents’ applications in a case were adjourned off through no fault of their own.  Those applications in a case were dealt with on 18 August 2016.

b.          Pearsons’ fees relating to the hearing on 18 August 2016

1. The matter came before the court on 18 August 2016 pursuant to the orders made on 10 February 2016.  Those orders provided for psychiatric assessments, amongst other things.  The interim hearing on 18 August 2016 also included the applications in a case filed by the father and paternal grandparents that had been adjourned from the 14 June 2016.

2. The interim hearing on 18 August 2016 resulted in orders by consent that X spend time with his father and/or paternal grandmother each Saturday from 9am until 1pm, gradually increasing to each Saturday from 9am until 4pm.

3. During the hearing of the costs application before me on 18 July 2017, the mother told the court that she had been bullied into agreeing to the interim orders on 18 August 2016.  She said that she was bullied by the respondents’ counsel and the independent children’s lawyer’s counsel. 

4. However, the mother acknowledged that she was represented by counsel on the day.  Her counsel is a very experienced family law practitioner.  The mother acknowledged that her counsel said that she, the counsel, would go into court and argue whatever the mother wanted.  The mother also said that the police had attended court on 18 August 2016 to support her.  The mother said that she was persuaded that, if she did not consent to the proposal, something worse might have been ordered. 

5. Judge Wilson did not make a finding that the mother had been bullied into consenting to the orders made on 18 August 2016.  It seems to me that the mother simply made a strategic decision to accept an offer rather than risk a worse outcome, as people often do in court cases.

6. It is also noteworthy that the orders made on 18 August 2016 did not include any statement that the costs of the day were reserved.

c.           conclusions on the interim hearings of 14 June and 18 August 2016

1. In the present case, because the hearing on 18 August 2016 resulted in consent orders, it cannot be said that any party was wholly unsuccessful in relation to the interim issues that were then alive.  However, the father and the paternal grandparents clearly achieved most of what they sought in their applications in a case filed on 18 April 2016.  Those applications in a case were listed for hearing on 14 June 2016 but adjourned off to 18 August 2016 through no fault of the respondents. 

2. In view of the consent orders that disposed of the matters listed for hearing on 14 June 2016 and 18 August 2016, and which largely gave the respondents what they sought, it would not sit well for the mother to be awarded her legal costs relating to those court events.  That view is reinforced by the fact that the costs of those days were not reserved.  On the other hand, the mother was successful in the proceeding overall.

3. Taking into account the other matters required by s.117 of the Act, I particularly note that none of the parties is particularly well off, and the paternal grandparents have incurred over $150,000 in legal costs on their own behalves and on behalf of the father. I also particularly note the issues mentioned above in relation to the conduct of the parties, and the father’s conduct which prompted the mother to commence this proceeding.

4. However, on balance, I do not consider it appropriate to make any costs order in respect of the hearings on 14 June and 18 August 2016.

d.          other costs charged by Pearsons

1. It is not entirely clear from the material whether any of the costs charged by Pearsons relate to anything other than the two hearings on 14 June 2016 and 18 August 2016.  What is clear is that Pearsons withdrew as the mother’s lawyer on 7 September 2016.  I infer that the mother was very unhappy with the outcome of the interim hearing on 18 August 2016.  From exhibit 1, being the invoices from Pearsons, it does not appear that Pearsons did any work of substance after 18 August 2016.

2. Exhibit 1 suggests that the initial work that was done by Pearsons involved some repetition of the work previously done by VLA, including preparing folders of court documents, perusing them and conferring with the mother.  It would be inappropriate for the respondents to be required to pay the mother’s costs of any legal work that had been repeated, simply because the mother changed solicitors.

3. In the circumstances, particularly the lack of clarity about whether Pearsons did any work that was not related to the hearings on 14 June 2016 and 18 August 2016, I do not consider that it would be appropriate to make any order for costs associated with any work Pearsons may have done that was not related to the interim hearings on 14 June 2016 and 18 August 2016.

e.           Dr C

1. The mother claimed $1,600 for expert witness expenses for Dr C, being $800 for each of the first and last days of the trial.  Dr C is a general practitioner who has treated the mother and X. The mother subpoenaed his notes and called him to give evidence, although she had not arranged for him to swear or affirm an affidavit.  The mother did not call any evidence in chief from Dr C, although his notes were considered by all parties.  It seems that none of his notes were tendered.  

2. The respondents cross-examined Dr C for about 45 minutes. The independent children’s lawyer did not cross-examine him. The mother re-examined him for about 10 minutes.  His notes and oral evidence related particularly to the father’s assault of the mother, X’s diagnosis of autism and global developmental delay, X’s emotional and psychological response to his father and the conflict between X’s parents.  Dr C’s evidence was relevant and was relied on by Judge Wilson to make findings.

3. The respondents complained that the mother was given too much latitude in being able to call Dr C when he had not sworn or affirmed an affidavit, and complained that they should particularly not be liable for his attendance on the first day of the hearing, because he could not possibly have been reached on that day.

4. I do not accept that Dr C could not possibly have been reached on the first day of the hearing.  The mother was the applicant.  It was conceivable that her cross-examination would finish on the first day, and Dr C would then be called.  Whether the mother was given latitude was a matter for Judge Wilson.  It is not for me to second guess decisions made by his Honour in the running of the trial.

5. The respondents also argued that, if the mother had provided an affidavit from Dr C, he may not have been required for cross-examination.  That seems very unlikely to me.  I do not accept that submission.  Judge Wilson made strong findings about how unwilling the father had been to accept medical evidence about X’s diagnosis and psychological reactions.  It is just not plausible that Dr C would not have been required for cross-examination if he had sworn or affirmed an affidavit.

6. It seems to me that Dr C was a relevant and useful witness.  The amount of costs claimed by the mother in respect of his attendance at court seems to me to be reasonable, given that he is a medical doctor and was required to attend at court on two days.

7. I consider that an order that the respondents pay the mother’s costs associated with Dr C is just.  The mother was wholly successful in the overall proceeding.  None of the parties is particularly well off.  The respondents’ conduct of the proceeding in relation to the matters discussed above, and particularly in relation to the father disputing the medical evidence, tend to favour a costs order in relation to Dr C’s attendance.  This is a disbursement rather than a matter of indemnity costs.  The respondents should be required to pay the full costs claimed in respect of Dr C’s attendance.

f.           DHS subpoena and subpoena filing fees

1. The mother claimed conduct money of $25 and subpoena filing fees of $55.  For the same reasons as apply in relation to Dr C’s fees, except the issue relating to the father’s disputation of the medical evidence, I consider that it is just for the respondents to pay the mother’s costs related to conduct money and subpoena filing fees.  Again, these are disbursements rather than indemnity costs.

Conclusion

1. For these reasons, there will be orders requiring the respondents to pay the mother’s legal costs to the extent of $1,680.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:       15 September 2017