KIMBER & KITSON
[2015] FCCA 3550
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIMBER & KITSON | [2015] FCCA 3550 |
| Catchwords: COSTS – Application for costs – indemnity costs – party and party costs – costs of the Independent Children’s Lawyer – party wholly unsuccessful in the proceedings. |
| Legislation: Australian Passports Act 2005 (Cth), s.11 Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 68L, 117 Federal Circuit Court Rules 2001, Sch.1, Part 1 |
| Cases cited: Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248 Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited [1988] FCA 202; (1988) 81 ALR 397 In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340 Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544 Ragatta Developments Pty Ltd v Westpac Banking Corporation (unreported), Federal Court of Australia, 5 March 1993 |
| Applicant: | MS KIMBER |
| Respondent: | MR KITSON |
| File Number: | PAC 528 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 21 December 2015 |
| Date of Last Submission: | 21 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Bui |
| Solicitors for the Applicant: | JB & Associates |
| Respondent: | In person (with (nationality omitted) Interpreter) |
| Independent Children's Lawyer: | Ms Connor |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
All earlier parenting Orders are discharged.
The Mother is to have sole parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010.
The children X and Y are to live with the Mother.
The Father is to spend time with the children X and Y at times agreed between the parties.
The Mother is entitled to sign all documents required by the Australian Passport Office for the issue of Australian passports for the children X and Y without the need for the consent of the Father.
The Father is to pay the Mother’s costs in the sum of $11,300.00 within six (6) months of the date of these Orders.
The Father is to pay to Legal Aid NSW within thirty (30) days of the date of these Orders the sum of $1,650.00 in relation to the Independent Children’s Lawyer’s representation of the children X and Y.
IT IS NOTED that publication of this judgment under the pseudonym Kimber & Kitson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PAC 528 of 2012
| MS KIMBER |
Applicant
And
| MR KITSON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting Orders concerning the parties’ two sons, X, aged 6, and Y, who will soon attain the age of 5. The proceedings were originally commenced by the Father, but, as he chose to withdraw his Application on 13th October, the Mother has continued to press for the orders that she sought in her Response. She also seeks an order for her costs.
Background
The Father was born on (omitted) 1973.
The Mother was born on (omitted) 1975.
The parties were married in (country omitted) on (omitted) 2007.
There are two children of the marriage, both boys. X was born on (omitted) 2009. Y was born on (omitted) 2010.
The parties separated on 9th October 2011. The children remained living with the Mother.
On 17th April 2012 the parties entered into Consent Orders in the Family Court at Parramatta, in which they settled the property issues between them.
Procedural History
The Father commenced proceedings on 28th September 2012 by filing an Application for parenting orders and a supporting affidavit. The Application was returnable on 19th November 2012.
On the first return date, the parties entered into Interim Consent Orders providing that the parties were to attend a Child Dispute Conference with a Family Consultant and the Father would spend time with the children for two hours each Sunday.
The Child Dispute Conference took place on 11th December 2012. In her Memorandum to the Court, the Family Consultant noted the following issues:
a)There was a history of police involvement but there was no current family violence order;
b)The Mother alleged that the Father would be physically and verbally abusive to her during the marriage when he was under the influence of alcohol; and
c)The Mother expressed concern about the Father’s limited parenting skills and the children’s lack of an attachment relationship with him.
The parties agreed that it was in the children’s best interests to maintain the current parenting regime so that the children could develop a relationship with their father.
The Family Consultant noted that whilst it would be of benefit for the Father to attend a parenting course, it may be difficult for him as he did not speak English and would require a course to be run in (nationality omitted).
The Family Consultant suggested that a further Child Dispute Conference should be held in approximately four months’ time. The appointment of an Independent Children’s Lawyer should be considered at the next Child Dispute Conference.
The parties entered into further Consent Orders on 17th January 2013.
A further Child Dispute Conference was scheduled for Wednesday 31st July 2013. The Father did not attend the Conference.
On 10th December 2013 Federal Magistrate Walker[1] ordered that the children’s interests should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth).
[1] As her Honour then was
The Application was listed for an Interim Hearing on 10th April 2014, but on that date the parties entered into further Consent Parenting Orders. Her Honour ordered that a Family Report should be prepared.
The Family Report was completed on 7th August and released to the parties on 11th August 2014. The Family Consultant who prepared the Report noted that the Father did not attend the appointment and was therefore not interviewed.
When the Application came back to Court on 5th December 2014 there was no appearance either for or on behalf of the Father. Judge Walker listed the matter for an undefended final hearing on 26th February 2015.
The Father did attend Court on 26th February when the matter was listed before Judge Kemp (Judge Walker having retired). His Honour ordered the Father to file and serve an affidavit and gave the Mother leave to file an Application for costs, returnable on the next occasion. The Application was adjourned to 21st May 2015 for mention.
The mother filed an Application in a Case on 24th April 2015 seeking an order that the Father pay her costs on an indemnity basis.
On 21st May 2015 the Father was ordered to file a Response to the Application in a Case.
On 13th October 2015 the Father attended Court unrepresented and advised that he wished to withdraw his Application. His Honour adjourned the proceedings to 21st December 2015 for an undefended final hearing.
The Mother filed a further Application in a Case seeking costs of the undefended hearing on an indemnity basis or, in the alternative, on a party and party basis.
The Father attended Court on 21st December. He was not represented but had the assistance of an interpreter in the (nationality omitted) language.
Evidence and Submissions
The Mother relied on the following:
a)Her Application in a Case filed 1st December 2015;
b)Her Amended Response filed on 3rd February 2015; and
c)Her affidavits of 23rd January, 22nd April and 4th December 2015.
It was the Mother’s affidavit evidence that the Father was heavily intoxicated on various occasions during the marriage. At those times he would yell profanities and verbally abuse the Mother and members of her extended family. On 17th October 2011, after the parties had separated, the Father engaged in a physical altercation with his brother in law whilst he was intoxicated.
The Mother deposed that arrangements were made for the Father to spend time with the children on various occasions from 2nd December 2012, but on several occasions he would choose not to attend. When the children did spend time with him, they would either be unresponsive to him and look to the mother for emotional support or, on later occasions, such as 7th June 2014, became hysterical when about to spend time with their father.
On 7th June 2014 the older child, X, cried, kicked and screamed when about to spend time with the Father to such an extent that the Father only took the younger boy, Y, with him. He later telephoned the Mother asking her to pick up the child, as he had started crying. The Mother deposed that when she was picking up the child, the Father said in the presence of the children:
“Your mother’s new boyfriend can be your father”.
The children have only spent time with their father on one occasion since then, on Father’s Day 2015. The Mother initiated the contact between the children and their father. The children refused to be left alone in his care and started crying.
It is the Mother’s evidence that the Father made no attempts to see the children on any other occasion.
Mr Bui, for the Mother, submitted that the children should remain in the sole care of the Mother, who should have sole parental responsibility for them. He submitted that the orders sought are appropriate because of the Father’s lack of participation in the proceedings and the cessation of his contact and engagement with the children since 8th June 2014, except for Father’s Day 2015.
It was also submitted that the Father’s withdrawal of his Application for parenting orders indicated his unwillingness to be a part of the children’s lives. The Father has demonstrated by the evasion of his duties as a parent that he does not hope to be involved in his children’s lives, nor does he wish to have a meaningful relationship with them.
Further, Mr Bui submitted that the Father’s attitude is clear, in that he has not sought ways to improve himself as a parent but has rather blamed the Mother for having disparaged him in front of the children. It is noteworthy that the Father has not taken the opportunity to participate in important Court processes including a Child Dispute Conference and the interviews for the Family Report.
It was also submitted that the children have, on several occasions, shown reluctance to be left alone with the Father and have refused to allow him to take them away.
The Mother’s solicitor submitted that the Father should pay the Mother’s costs of the proceedings, referring to the matters set out in s.117 of the Family Law Act 1975. In particular, he referred subsection 117(2A) at paragraphs (a), (c) and (e).
As to the parties’ financial circumstances (s.117(2A)(a)), Mr Bui submitted that the Mother is not in a position to pay for the legal fees which she has incurred whilst also maintaining the care of two young children, which severely diminishes her capacity to earn a sustainable income. The Father, by comparison, has paid “almost non-existent sums of child support”.
Mr Bui submitted that the Father has exhibited exceptionally poor behaviour as a litigant (s.117(2A)(c)). The Father displayed poor judgment as a litigant, seeking a final order that he should have equal shared parental responsibility for the children and maintaining that position throughout the proceedings, despite his claims being ill-founded.
The Mother’s solicitor submitted that the Father commenced or continued the action in circumstances where a party properly advised should have known that he had no prospects of success (see Fountain Selected Meats (Sales) Pty Ltd Pty Limited v International Produce Merchants Pty Limited[2]). He also submitted that this was a matter where indemnity costs should be awarded, as the Father had grossly prolonged the litigation, causing the Mother to incur costs far beyond what she could reasonably have expected to incur in litigation of the genuine issues (see Ragatta Developments Pty Ltd v Westpac Banking Corporation[3]).
[2] [1988] FCA 202; (1988) 81 ALR 397
[3] Unreported, Federal Court of Australia, 5 March 1993 (Davies J)
It was further submitted that the Father did not appear on several important Court occasions, including a Child Dispute Conference, the interviews for the Family Report and the mention on 5th December 2014. By comparison, the Mother had attended Court on every occasion and complied with all Court orders and directions.
Mr Bui submitted that the litigation was commenced by the Father early in 2013 and lasted for nearly three years, but little progress was actually made. The Father abandoned care of the children in June 2014 but, despite such clear intentions to back away from the children and the Court proceedings, did not withdraw his Application until late 2015, thereby prolonging the litigation for almost a year and a half.
Further, it was submitted that the Father, in withdrawing from the proceedings after three years of litigation, has been entirely unsuccessful in the proceedings (s.117(2A)(e)).
The Father attended Court and spoke with the assistance of an interpreter in the (nationality omitted) language. He said that he still sought orders that he should spend weekends with the children and share the school holidays with the mother. He said that he saw the children for about an hour on Father’s Day.
The Father opposed the order sought by the Mother that she should have the right to apply for passports for the children without the need for his consent. He said that he feared that she might take the children away from Australia permanently but he was unable to offer any reason as to why he thought she might do that.
The Father told the Court that he withdrew his Application because he was being “continually badgered to go to court”. He said that he had run out of funds to continue the proceedings,
It was for that reason the Father opposed the Applications for costs on behalf of the Mother and the Independent Children’s Lawyer. He said that he worked for four hours a day as a (occupation omitted) and had no funds.
Ms Connor, the Independent Children’s Lawyer, submitted that she supported the mother’s application for final parenting orders. She said that the children needed finality.
The Independent Children’s Lawyer sought an order that the Father should pay the sum of $1,650.00 towards her costs. That figure is the basic amount. No order was sought against the Mother as she had been granted a waiver.
Orders Sought
The Mother seeks orders that:
a)She should have sole parental responsibility for the children;
b)The children are to live with her;
c)The Father is to spend time with the children at times agreed between the parents;
d)The Mother is to be entitled to sign all necessary documents for the issue of passports for the children without the need of the Father’s consent; and
e)The Father is to pay her costs on an indemnity basis or, in the alternative, on a party and party basis.
The Independent Children’s Lawyer supports the Mother’s application for parenting orders in her favour and otherwise seeks only an order that the Father pay the costs of the Independent Children’s Lawyer in the sum of $1,650.00 within thirty days.
The Father has withdrawn his Application for parenting orders but opposes the orders sought by the Mother and the ICL.
Applications for Parenting Orders
When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to the sections of the Family Law Act 1975 that are to be found in Part VII of the Act, including sections 60B, 60CA, 60CC, 61DA and 65DAA, where applicable.
Section 60B contains the objects and principles of Part VII of the Act.
Section 60CA provides that the Court must regard the best interests of the child (or children, in this case) as the paramount consideration.
Section 60CC sets out the way that the Court determines the best interests of the children, by having regard to the primary considerations in s.60CC(2) and the additional considerations in s.60CC(3).
Section 61DA refers to equal shared parental responsibility and contains that presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them, but this presumption does not apply in certain circumstances, such as family violence, and may be rebutted if the Court is satisfied that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.
Section 65DAA applies if, and only if, the Court makes an order that the children’s parents should have equal shared parental responsibility for them.
All of those matters have been considered so far as they are relevant.
Costs in Family Law Proceedings
The question of costs in proceedings under the Family Law Act 1975 is governed by the provisions of s.117 of the Act. Subsection 117(2) of the Act provides that if the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection 2A (relevantly) and the applicable Rules of Court, make such order for costs as the Court considers just.
Subsection 117(2A) provides that 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, admission 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 either 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.
If the Court decides that there are circumstances that justify it in making an order for costs, what must then be decided is the quantum, or the amount of costs to be awarded. It is the usual case that where costs are awarded against a party they are awarded on a party and party basis. Costs would normally be awarded in accordance with the Court scale, which in this case is contained in Part 1 of Schedule 1 to the Rules.
Costs will only be awarded on an indemnity basis (also known as a solicitor-client basis) where there are unusual or exceptional circumstances (Colgate Palmolive Co v Cussons Pty Ltd[4]; In the Marriage of Kohan[5] ; Prantage & Prantage[6]).
[4] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
[5] (1992) 16 Fam LR 245; (1993) FLC 92-340
[6] [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544
Conclusions
The best interests of the children must be the paramount consideration. There is a need for there to be final orders to bring these proceedings to an end. The children have lived with their mother since the parties separated and should continue to do so. The relationship between the children and their father appears to be distant and the evidence is that they are reluctant to spend time with him. It also emerges from the evidence that the Mother has been the parent who has attempted to maintain some kind or relationship between the children and their father, who has on more than one occasion pulled out of arrangements to spend time with them.
It is clear this is not a case for the parents to have equal shared parental responsibility for the children. Leaving aside the allegations of violence during the marriage, the communication between the parents is poor and there is little evidence of the father making any effort to spend time with the children or play any part in their lives. The fact that the Father elected to discontinue spending time with the children after the unsuccessful contact in June 2014 bears witness to the Father’s lack of commitment. It was at the Mother’s instigation that the children spent time with the Father on Father’s Day 2015.
As an order will be made that the Mother is to have sole parental responsibility for the children, the provisions of s.65DAA of the Act do come into operation.
In my view, it is the Mother who should decide whether the children are to have Australian passports. There is no evidence that she has any intention of removing the children from Australia permanently. Section 11 of the Australian Passports Act 2005 (Cth) would allow the mother to obtain passports for the children on two bases:
a)That she is the parent who has sole parental responsibility for the children; and
b)The Court has made an Order to that effect.
This is a clear case for orders for costs to be made against the Father. The conduct of the litigation, which was commenced by him as the Applicant, is a clear justification for a costs order to be made. The Father’s failure to attend Court, his failure to attend a Child Dispute Conference when directed to do so, and his failure to attend for an interview for the purpose of preparation of the Family Report not only show a dilatory and irresponsible to the conduct of the litigation but also show a failure by the Father to comply with the Court’s directions.
I am equally in no doubt that the Father should pay the sum of $1,650.00 towards the costs of the Independent Children’s Lawyer. It is the minimum amount of costs payable. Priority should be given to the payment of the costs of the Independent Children’s Lawyer and I will allow thirty days, as sought.
I am not satisfied that costs should be awarded on an indemnity basis as the circumstances are neither exceptional nor unusual. I take into account the Father’s claimed shortage of funds and I will allow time to pay.
I calculate the costs payable to the mother under Part 1 of Schedule 1 to the Rules at $11,300.00 and I will allow six months to pay.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 19 January 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Remedies
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