Kerson & Blake (No. 3)

[2021] FamCA 416

FAMILY COURT OF AUSTRALIA

Kerson & Blake (No. 3) [2021] FamCA 416

File number(s):	CAC 1154 of 2017
Judgment of:	BAUMANN J
Date of judgment:	25 June 2021
Catchwords:	FAMILY LAW – COSTS – Where in 2019 the mother sought a late adjournment of the trial – Where the father seeks costs against the mother for costs associated with the mother’s successful adjournment application – Where circumstances do exist that justify the father having a costs order payable by the mother, limited to the costs thrown away by the adjournment application and adjournment.
Legislation:	Family Law Act 1975 (Cth) s 117
Number of paragraphs:	28
Date of last submission/s:	13 November 2020
Date of hearing:	On the papers in chambers
Place:	Brisbane

ORDERS

CAC 1154 of 2017
BETWEEN:	MR BLAKE Applicant
AND:	MS KERSON Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	25 JUNE 2021

THE COURT ORDERS:

1.That the mother pay a contribution to the costs of the father fixed in the sum of $5,000 by no later than 4.00pm on 25 August 2021.

2.That upon the production of evidence by the father of him having incurred and paid fees for Ms Christie of Counsel in the sum of $7,892.50, then within sixty (60) days of producing such evidence to the mother, the mother shall additionally pay to the father the sum of $7,892.50.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blake & Kerson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

1. The father, Mr Blake, seeks that the mother, Ms Kerson, pay his costs in the sum of $31,835.81 “or such other amount as this Honourable Court deems appropriate” arising from an Order made on 7 August 2019.

2. In short, the substantive issue in dispute between the parties related to the mother’s application for permission to relocate the permanent residence of the parties’ two sons from Canberra to City D in the USA.  An earlier hearing in the Family Court of Australia was the subject of the mother’s successful appeal resulting in an Order by the Full Court on 11 September 2018 remitting the matter for rehearing by a different Judge.  The matter was allocated to me to conduct the rehearing.

3. On 20 February 2019, at a Case Management Hearing, the proceedings were listed for rehearing for three days in the Canberra Registry commencing 12 August 2019.  By 16 July 2019 (after the release of a fresh family report as earlier ordered for the rehearing), the Court was informed by both the solicitors for the mother and father that the matter was ready to proceed as listed on 12 August 2019.  Trial directions were made on 16 July 2019 and the Court, upon enquiry, was informed that the mother had made arrangements to travel to Australia for the hearing.  The solicitors on the record for the mother ceased to represent the mother on 1 August 2019 – less than two weeks before the rehearing was to commence.

4. However, when a joint letter of 6 August 2019 was sent to the Court where the mother indicated she was seeking an adjournment of the hearing, the matter was urgently listed for a Case Management Hearing.

5. On 7 August 2019 a Case Management Hearing was conducted, with Counsel Ms Christie appearing for the father and the now unrepresented mother appearing by telephone from City D.  In circumstances where the mother was living in the United States of America, but the children continued to reside with the father in Canberra, the father instructions were that he neither consented to nor opposed an adjournment, but:

   (a)was ready to proceed with the hearing as listed;

   (b)sought leave not to file his trial material, if the trial was adjourned; and

   (c)if adjourned, sought an order that his costs of the adjournment “thrown away” be reserved.

6. In circumstances where the now unrepresented mother had informed the Court she needed not less than three months “to marshall her resources” and instruct her then solicitor and Counsel to appear at a future hearing, for reasons that were delivered orally, the mother’s application for an adjournment was granted.

7. Ultimately, the rehearing commenced on 17 February 2020; proceeded for three days, with the mother being unrepresented but present in Australia (happening just before the impact of COVID-19 travel restrictions were activated); and after oral submissions delivered on 1 May 2020, Reasons for Judgment were delivered and Orders made on 20 August 2020 – the effect of which was that the two boys were to remain living in Australia.

8. It is fair to record that although the adjournment was granted, the Court retained some level of concern about the late request for the adjournment.  As a result, Order 2 made 7 August 2019 was made, namely:

   2.That the mother shall file and serve within forty two (42) days of the date of these Orders an Affidavit that deposes to:

   a.reasons why she was unable to proceed with the re-hearing set down to commence 12 August 2019;

   b.when travel arrangements and bookings for flights to Australia from the United States of America were booked and cancelled and paid for; and

   c.an indication of when and on what basis she says she will be ready to proceed with her application for parenting orders in these proceedings.

9. The intent of the Order was clear.  Although the mother had retained lawyers to represent her, presumably for a new hearing but at the very least on 7 August 2019 (which they did), that firm ceased acting for the mother on 12 September 2019.  As a result, the mother personally prepared and filed the affidavit required by the Order of 7 August 2019, on 17 September 2019.

10. I agree with the submission of the father’s solicitor filed 16 October 2020 at paragraph 23, that the summary of the mother’s reasons as to why she was unable to proceed with the rehearing on 12 August 2019 is:

    23.In summary, the Mother’s reasons for seeking an adjournment of the trial were as follows (Note paragraph references in this section relate to the Mother’s Affidavit filed 17 September 2019):

    a.A breakdown in communication between the Mother and her former solicitor wherein the Mother says there was no plausible way she could have been prepared for or attend the Trial as scheduled.  [See Paragraphs 2 and 4(a)].

    b.That the Mother was of the belief that the August 2019 trial had been adjourned on the basis that she says she had indicated to her legal team that she could no longer afford her solicitor or barrister and that she  planned to attempt to resolve the matter by means other than Trial. [Paragraphs 2(a), 2(c), 2(f), 3, 5, 6 and 7].

    c.The Mother states that she was informed by her Solicitor that her Barrister was cancelled by approximately 8^th July 2019 [see paragraph 2(a)]. She goes on to say at paragraph 5 of her Affidavit that she had “but one (1) week’s notice that the Trial was progressing despite the fact that [she] had: no money, no Solicitor, no Barrister, and no completed Affidavits’.  [Paragraph 5].

    The Father submits that the Mother knew that the Trial was progressing at least at the date of the Directions Hearing on 16 July 2020.  At that Hearing, there was no indication that there was any intention or consideration by the Mother to withdraw or seek to adjourn proceedings.

    Our firm’s last communication with the Mother’s then solicitor was by way of telephone attendance on 23 July 2020 and at that time it was apparent from the Mother's solicitor that they were still acting for the Mother and held instructions on her behalf and that unless the matter could otherwise settle by an exchange of letters, the matter remained ready to proceed to trial.  A File Note is available and can be provided to the Court should it be requested.

    The Mother’s statement in paragraph 5 of her Affidavit suggests that notwithstanding that she was represented until at least 29 July 2020 (Paragraph 3), being only two weeks before the commencement of the August Hearing and one week prior to the filing date for both parties' affidavit material, no affidavits had been completed by or on her behalf in preparation for the August Hearing.  This thus indicates that the Mother may not have been ready for trial whether or not she remained represented

    d.The Mother states in paragraph 3 of her September 2019 affidavit that the foremost reason for her “last minute request for Adjournment was my genuine concern that our children's repeated pleas could and would not be addressed unless I found a way to reschedule Trial”.

    e.That she felt that due to her concern that: “many issues that our children needed addressed toward their well-being were not being addressed in even a cursory matter (sic)” and so she: “saw pursuit of re-scheduling of Trial as my only option toward addressing these concerns”. [See paragraph 4(b)].

    The Father submits that the statements referred to in paragraphs 23(d) and (e) above suggest that the Mother sought the adjournment of the Hearing as a deliberate delay to afford her more time to address concerns and issues in relation to the children, but does not indicate in detail what those concerns and issues were and whether they were concerns and issues that were or were not already before the Court or that could not for some reason be addressed in material due to be filed by the original filing date of 5 August 2020.

    f.The disparity in financial resources between the Father and the Mother and the Mother’s incapacity to afford Counsel [paragraphs 1, 2(a), 2(c), 3, 3(a), 3(c), 3(d), 4(c) and 7).

11. Furthermore, I agree with the submission that at no time had the mother booked flights to travel to Australia for the hearing on 12 August 2019 (allocated by me on 20 February 2019), apparently because the mother had formed a belief by as early as July, that the trial “was cancelled or postponed” (see paragraph 7 of her affidavit filed 17 September 2019).  That was not the position expressed to the Court on 16 July 2019 by the mother’s then solicitors.

    PRINCIPLES

12. The general rule in s 117(1) of the Family Law Act 1975 (Cth) is that each party shall pay their own costs of the proceedings, however, if the Court is satisfied, following a consideration of the factors set out in s 117(2A), that circumstances exist which justify an order for costs, then such order as is proper may be made.

    CONSIDERATION OF S 117(2A) FACTORS

    (a)The only evidence of the parties’ financial position is as set out in my substantive Judgment when I was turning my mind to costs of travel.  Neither party has a high income or substantial assets;

    (b)Neither party was in receipt of legal aid;

    (c)The father submits that the conduct of the mother in making a late adjournment request, after he had taken steps to prepare for the trial, is a relevant factor.  The mother, in her affidavit filed 13 November 2020, asserts in effect, she had informed her then solicitors, that “[b]y mid-June 2019, I came to terms with the reality that she could not [afford] to go to trial”, and that she will “need to settle” and that she will “need to work with an attorney with a lower fee to finish this disaster”.  The mother wished to await the publication of the new family report so as to allow her to work on “proposed orders for increased visitation”;

    I find that after the delivery of the family report, and as is apparent from the mother’s engagement in the trial in February 2020, the mother was both “not happy” to settle the matter on the basis that the children reside in Australia with the father, and actively sought orders they live with her.  I will discuss below how to treat the mother’s evidence that her solicitor at the time either did not follow her instructions; was confused about her instructions and even more seriously, may have misled the Court on 16 July 2019 (and thereby the father and his lawyers).

    (d)Although the mother was successful in obtaining her adjournment, it was on the terms set out in the Order of 7 August 2019, with costs of the father reserved.

    DISCUSSION

13. The intention of the Order of 7 August 2019 in reserving the father’s costs was to enable the assessment of whether circumstances existed to justify an order for costs.  This at least required the mother to file her affidavit – which she did.

14. The highly redacted correspondence between the mother and her then solicitors reveals that the solicitors informed her by letter of 29 July 2019 of the results of the Case Management Hearing on 16 July 2019, and importantly, that:

    …we did not advise the Court on 16 July that you were going to no longer pursue residence and so therefore the Judge is still of the view that the matter is proceeding.

15. Clearly, the mother either changed her mind about “not proceeding” on the issue of residence, or had never committed to that position.  I prefer the later, reflected by her pursuit of the orders sought at the trial in February 2020.

16. I am simply unable to engage in any discussion about what might have taken place between the mother and her solicitors.  The solicitors have been given no opportunity to be heard on the mother’s “complaints”, and further on what was the mother’s suggestion (at paragraph 8 of her affidavit filed 13 November 2020) that:

    I submit to the Court that I was no less injured by the actions of my then Solicitor, Ms X, than Mr. Blake.  If His Honour rules in favour of Mr. Blake, costs should come from the law firm Y Lawyers, not me, the Mother.

17. This is not a matter for this Court, on the evidence before me, and if the mother has any actions for relief against a former lawyer, she may have to consider a different forum.

    QUANTIFICATION

18. In my assessment, circumstances do exist that justify the father having a costs order payable by the mother, limited to the costs thrown away by the adjournment application and adjournment.

19. It would not be appropriate or just for the mother to bear the costs of the father preparing for the trial, including his trial affidavit (ultimately filed on 20 December 2019) unless they were additional or wasted (“thrown away”).

20. In this respect, the father’s written submissions at paragraphs 49 to 58 combine to seek an order for costs totalling $31,835.81, calculated as follows:

Annexure B

(costs on an indemnity basis – 28 September 2019 to 16 October 2020)

$25,147.91

Counsel’s fees

$7,892.50

Ms T’s fees

$385.00

Other disbursements

$595.40

$34,020.81

1. In my view, costs on an indemnity basis is not justified – there is nothing exceptional about this case (see Kohan & Kohan (1993) FLC 92-340)

2. Much of the costs incurred related to preparing for the trial – preparation not “thrown away”, but used for the ultimate trial material and affidavits of witnesses.  I accept that at least between 5 August 2019 (when the mother’s solicitor telephoned the father’s Barrister “Re:  the other side’s proposed adjournment”) to and including the preparation of the application for costs and submissions, costs were incurred that related to the adjournment and were “thrown away”.

3. However time spent on having witness affidavits such as Ms F; Ms T; Ms Blake prepared were not “thrown away”.  Continual work to the father’s trial affidavit were not “thrown away”.

4. It is in the interests of justice that this issue as to costs does not require further taxation or assessment.  I propose to fix costs.

5. I propose to fix the costs of the adjournment application; costs thrown away by the adjournment of the trial and the costs associated with the preparation of the application for costs; supporting affidavit filed 9 October 2019 and the written submissions filed 16 October 2020, in an amount of $5,000.

6. The only disbursement I am prepared to consider as being “thrown away” is his Counsel’s fees.  The father’s submissions say he has incurred costs in the sum of $7,892.50 for “Barrister’s fees”.  Certainly Ms Christie of Counsel appeared at the adjournment hearing on 7 August 2019.  The father contends that Counsel was retained for the trial.

7. With such late notice of the adjournment, it would not be unreasonable for Counsel, in my view, to charge a fee.  I am not informed by any evidence as to whether or not Ms Christie actually charged the total fees of $7,892.50 as claimed by the father as a disbursement.  If he produces evidence of having incurred and paid that fee to Counsel, then in my view, the fee paid to Counsel should be reimbursed.

8. In these circumstances, I make the order as set out at the commencement of these Reasons.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       25 June 2021