King and King & Ors
[2019] FamCA 135
•8 February 2019
FAMILY COURT OF AUSTRALIA
| KING & KING AND ORS | [2019] FamCA 135 |
| COSTS – Parenting proceedings. COSTS – Procedural fairness – proceeding in absence of respondent and restoring liberty to apply within 14 days to vary or set aside. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Rice & Asplund [1978] FamCA 84 |
| APPLICANT: | MS KING |
| RESPONDENT: | MR M KING |
| SECOND RESPONDENT: | MR B KING |
| THIRD NAMED RESPONDENT: | MR DD KING |
| FOURTH, FIFTH AND SIXTH NAMED RESPONDENTS: | King Investments Pty Ltd (ACN …); (ACN …). |
| FILE NUMBER: | MLC | 9554 | of | 2011 |
| DATE DELIVERED: | 8 February 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 8 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Staindl |
| SOLICITOR FOR THE APPLICANT: | Clancy & Triado |
| COUNSEL FOR THE RESPONDENT: | No Appearance |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE SECOND RESPONDENT: | Excused from attendance |
| SOLICITOR FOR THE SECOND RESPONDENT: |
| COUNSEL FOR THE THIRD RESPONDENT: | Excused from attendance |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE FOURTH, FIFTH AND SIXTH NAMED RESPONDENTS: | Excused from attendance |
| SOLICITOR FOR THE RESPONDENT: |
Orders
IT IS ORDERED THAT:
The Registry Manager of this Registry of the Court forthwith secure the video footage from the entrance of the Court to the public lifts of the Court for this day between 8.45 am and 9.00 am and when secured notify my Associate in Chambers.
IT IS DIRECTED:
That pursuant to Rule 17.02A and Rule 17.02 of the Family Law Rules 2004 my reasons for decision be re-engrossed with the following corrections:-
a. To rectify the numbering of paragraphs which currently begin at paragraph 25 on page 1 and then start again at paragraph 26 and page 7 so that the numbers begin at 1 and are sequential.
b. As to the paragraph currently numbered 137 appearing on page 48 and commencing “The father has energy for litigation in his own right and through C” to amend the last sentence of that paragraph by deleting from it the word “not” where it appears for a second time and inserting in lieu thereof the word “the” so that the sentence reads “However, on reflection I am not persuaded that this is the appropriate time to make the father’s rights to make further application subject to him first obtaining leave of a judge…”.
IT IS ORDERED THAT:
Within 60 days of the date of this Order the father pay the mother the sum of $20,000 with respect to her costs of and associated to the parenting proceedings in her application filed on 28 July 2017.
The father pay the costs of the mother of and incidental to this day fixed in the sum of $1,500 also payable within 60 days.
I grant leave to the father to apply within 14 days to vary or set aside this Order or as he may be advised.
My reasons for decision this day be transcribed and when settled placed on the Court file and provided to the parties.
Otherwise, the Application in a Case of the mother filed on 19 October 2018 be and is hereby dismissed.
AND IT IS NOTED THAT the bifurcated property proceedings has a mention before a Registrar of this Court on 29 March 2019 at 11.00 am.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym King & King and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9554 of 2011
| MS KING |
Applicant
And
| MR M KING and Ors |
Respondent
And
MR B KING
Second Respondent
And
MR DD KING
Third Named Respondent
And
KING INVESTMENTS PTY LTD (ACN …); O PTY LTD (ACN …); P PTY LTD (ACN …).
Fourth, Fifth and Sixth Named Respondents
EX-TEMPORE REASONS FOR JUDGMENT
This matter comes before me as the hearing of the mother’s application in a case filed 15 October 2018 in which she seeks an order against the father that he pay her costs of concluded parenting proceedings in the sum of $40,933.60, and such further or other order as the court deems appropriate.
Today, Mr Staindl of counsel appears on behalf of the mother, who attends Court. There is no appearance by or on behalf of the father, save as I will discuss in a moment.
Mr Knight, solicitor, appeared on behalf of the third to sixth respondents, which include the father’s sister. He has asked to be excused, and I have excused him and his client from further attendance today.
Mr Knight also announced an appearance as a “friend of the court” for the father. He stated that he is instructed by the father’s sister that the father has been in a car accident this morning and cannot, by virtue of that accident and some incapacity arising from that accident, be present in court. Mr Knight has no further instructions, and he has not spoken personally to the father.
Mr Staindl of counsel informed me from the bar table that this morning his instructing solicitor thought that she saw the father enter the building at approximately 8.55 am this morning wearing a baseball cap. I don’t know whether that ultimately is correct, but I have made an order directed to the Registry Manager to make sure that the security tape that, to my knowledge, operates on a loop system is preserved. That is so, in the future, there could be a viewing of who has entered the building today.
Mr Knight is instructed by the father’s sister that the father has not entered the building today and has not been present this morning.
On 25 September 2018 I made final parenting orders in this matter. I also ordered in respect of costs as follows: -
In respect of costs:-
(a)Any party wishing to make an application for costs, make file and serve such application within twenty one (21) days and support it by evidence of an estimate of costs claimed including, but not necessarily limited to, a calculation of such costs in accordance with the Itemised Scale of Costs at Schedule 3 to the Family Law Rules 2004 (Cth);
(b)Any party who is served with an application for costs against him/her, file and serve an affidavit setting out any dispute as to quantum of costs within fourteen (14) days of service upon him/her of the application;
(c)My Associate advise the parties of the listing of this matter for oral submissions as to liability for costs (estimated to take not longer than one hour);
The mother’s application was filed on 15 October 2018. That is, the application in a case, which is dated 15 October 2018 [folio 242], and an affidavit by the mother affirmed on 15 October 2018 [folio 243]. It appears that the documents were received by electronic filing on 15 October 2018 at 2.52 pm.
The quantum of costs claimed is the subject of the mother’s aforementioned affidavit. Pursuant to the orders extracted above, the father was required to file and serve an affidavit setting out any dispute as to quantum of costs claimed within 14 days of service upon him of the application.
The father did not file any document pursuant to par. 10(b) of my Order, that is, a response.
The matter was listed before Registrar Sudholz on Wednesday, 19 December 2018. On that day the father appeared at Court in person, and Mr Rutledge appeared for the mother. The father sought an extension of time within which to file a response to the application in a case by the mother. Registrar Sudholz granted the father’s application for an extension of time within which to file a response so that he had until “4.30 pm on 1 February 2019” which was a Friday, one week ago.
The father has failed or neglected to comply with that order in relation to the filing of any response. That is, nothing was filed or served by 1 February. During this week there is no record of anything having been filed or served on behalf of the father.
The mother seeks to proceed today in the absence of the father, relying on the fact that he has had two opportunities to file responses to her application and has failed or neglected to do so.
I am satisfied that the father has notice of today’s hearing. He has apparently been in an accident. However, that is not the fault of the mother. The mother has incurred significant expense to be here today, having retained counsel and an instructing solicitor. I know from the parenting proceedings and my knowledge of the incomplete property proceedings that she has very little money. The consequences of this matter being adjourned, even if there was an order for costs against the father, would not necessarily mean that she would be indemnified or receive anything in respect of the expenses which she has incurred today.
The father has had two opportunities to file responses to the application in a case which is before the Court, has failed or neglected to avail himself of either opportunity. Neither has anything been sought to be filed by the husband.
I am satisfied that the father has been accorded procedural fairness. I will proceed with the application accordingly but will give the father a modest time in which to seek to set my decision aside on conditions.
RECORDED : NOT TRANSCRIBED
RECORDED : NOT TRANSCRIBED
Costs
In considering liability for costs, each party must bear their own costs unless there are circumstances of which the Court is satisfied that justify an order for costs being made to the effect that one party bear the costs of another.
This was a parenting case for which there was a very long lead-up. My decision in the substantive proceedings is published at case neutral citation [2018] FamCA 762. The children who were the subject of the proceedings were, at the time of the decision, aged 15 and 12 years and residing with the mother. The father was wholly unsuccessful in obtaining any orders for time with the children. Indeed, his application failed due to me being satisfied that there was no sufficient change of circumstances to warrant a further examination of whether it is in the children’s best interests for the father to play a substantive role in their life.
The parents’ eldest daughter, C, also sought parenting orders for her younger sisters. She sought to spend time with them. Because the father was unrepresented, I took into account all of the evidence in the case adduced by C when deciding whether or not there had been a sufficient change in circumstance to re-open the parenting issue vis-à-vis the father. I was not so satisfied and his application failed.
I am satisfied, within the meaning of s117(2) of the Family Law Act 1975 (Cth) (“the Act”) that there are circumstances in this case which justify an order for costs being made.
The next step is to consider what order (if any) ought be made. I have regard to the factors set out in section 117(2A) of the Act. It is not necessary that an applicant for costs qualify under each factor to which the court is required to have regard. An award of costs can be based on only one of those factors. However, I will consider each factor in turn insofar as it is relevant.
The financial circumstances of each of the parties to the proceedings (s117(2A)(a));
I have received evidence to the effect that the father says he has no money. He says that he gets money from his family and, historically, he has said that he has worked casually. He represents that he has no cash reserves or capital. He says that he has no income. He did, however, offer to send the children to private fee paying schools if they left the mother’s home and came to live with him. The eldest child, C, did so and completed her schooling as a fee paying student at an exclusive girls’ school. The father says that his parents paid C’s school fees
The mother is in a parlous financial situation. She has set that out in her affidavit in support of the application; in particular, at paragraphs 15 to 28 of her affidavit affirmed on 15 October 2018 where the wife deposes that:-
15.I am currently employed as a casual sales assistant at [Company AA] Pty Ltd. I work approximately 20 hours per week at a rate of $22 per hour. My weekly income before tax is approximately $440 a week.
16.The Husband’s current earning capacity and financial position is unknown. The Husband has divested himself of any financial responsibility by having n bank accounts registered in his name. The Husband does not receive Centrelink benefits.
17. The Husband asserts he is unemployed however I say he is self-employed and supporting himself in a business which was previously known as [A Pty Ltd]. The husband drives a [luxury] motor vehicle and from Facebook posts, would appear to dine out and entertain regularly.
18.The current legal proceedings, which have been on foot for an excess of six years, have placed me under enormous financial stress.
19.I receive Centrelink benefits of $456.40 per fortnight which I rely on to support myself and the children. In September I was advised by Centrelink that my Centrelink benefits had reduced (from $527.52 a fortnight to $456.40 a fortnight). The reduction in my means tested pension occurred in circumstances where, the child support, I was assessed to receive from the Husband, increased. Shown to me this day and marked with the letters “Ms K-2” is a copy of correspondence from Centrelink in relation evidencing the quantum of my current Centrelink benefits.
20.Despite the current child support assessment increasing, as stated above, I have received no child support from the respondent since the date of separation. I was informed by the DHS (Child Support Section) via telephone on 12 October 2018 that the current child support arrears are approximately $21,164.71.
21.I have not re-partnered. I work casually as a retail assistant. I structure my work arrangements around my parental responsibilities for the children. I have full time care of the children. The children do not spend any time with the Husband. Retail hours include weekends and some evenings, my lack of availability to work at these times on a regular basis has hampered my ability to obtain permanent and regular work.
22.As I am a casual employee I do not receive sick leave, carer’s leave or annual leave.
23.I have always worked in retail and I am not qualified to work in any other role.
24.I am currently struggling to pay for rental accommodation for myself and the children. I live week to week and borrow from my family when I have no money left in my bank account. My income is applied in full, to meet rental accommodation and support the children and myself.
25.The current legal proceedings which have been on foot for in excess of six years have caused me significant stress including financial stress. I have no savings and have relied on family and friends to assist me to meet my legal expenses.
26. The financial pressure I have been placed under during these proceedings has been compounded by the Husband’s failure to comply with Court Orders including Orders for the payment of spousal maintenance and Cost Orders.
27.On 24 January 2012 His Honour, Justice Cronin made an Order which provided for unpaid spousal maintenances arrears to be paid by the Husband via rental income he received from an investment property. I received a total of $9,854 in spousal maintenance payments from the Husband. The Husband then changed the handling of his investment property to defeat the Court Orders. The spousal maintenance order has not been discharged. The total spousal maintenance arrears payable by the Husband as at the date of swearing this Affidavit are approximately $159,721.
28.There are currently outstanding costs orders payable to me by the Husband, including as follows:
a)On 7 July 2015 Her Honour, Justice Bennett ordered the Husband to contribute to my costs of and incidental to my Contravention Application filed 1 May 2014. A Cost Order was made in the sum of $1,250 which was payable in 14 days. This amount remains outstanding.
b)On 2 August 2017 the Husband was again found to have contravened the Orders for payment of the previous Costs Order against him. The Husband then had to enter into a bond subject to conditions including the payment of the $1,250 to me. The Husband has again failed to pay this amount.
c)On 28 October 2017 a further Order was made against the Husband for $1,647.47. The Husband has failed to pay this amount.
The father has had notice of the above evidence of the mother since October 2018 but, as indicated he has not filed any affidavit material in response to the evidence of the mother set out above.
I am satisfied that the mother could not afford to run the parenting proceedings in respect of which costs are now claimed. She managed to pay some moneys to her instructing solicitors, but I accept that the overwhelming majority of the fees incurred are still outstanding. The father’s costs were less than the mother’s costs because the father discharged his lawyers very early in the hearing and proceeded as a self-represented litigant.
Whether any parties 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 (s117(2A)(b));
Not relevant.
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, discovery, directions to answer questions, production of documents and similar matters (s117(2A)(c));
This was a parenting case which ran for five days. In no small part, the duration of the hearing was because both C and the father had failed to file affidavits which were relevant to parenting issues. I permitted their evidence in chief to be given viva voce. To require them to have filed affidavits would have necessitated an adjournment, which the mother could ill afford. To run the trial without evidence from the father and C, even if they could have cross examined the mother, would have put the mother at significant risk of another trial being ordered by the appellate division which, again, the mother could not afford.
Had C and the father been appropriately prepared for the trial by submitting affidavit evidence, I estimate that the hearing would have been much shorter. This factor supports the mother’s application for costs.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court (s117(2A)(d));
Not relevant.
Whether a party to the proceedings has been wholly unsuccessful in the proceedings (s117(2A)(e));
The father was wholly unsuccessful in the parenting proceedings.
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 (s117(2A)(f));
Insofar as offers of settlement are relevant (pursuant to subparagraph (f)), I note that the mother in her affidavit states:
9. On 8 October 2017, in accordance with my instructions, my lawyers wrote to the father seeking that he withdraw his application in a case (for parenting orders), given that it was without merit and lacked any supporting evidentiary documentation. The letter also put the father on notice that if his application was not withdrawn, that costs orders would be sought against him on an indemnity basis. The father did not withdraw his application.
I accept this occurred and it is supportive of the mother recovering costs against the father.
Such other matters as the court considers relevant (s117(2A)(g)).
In the substantive proceedings, the mother faced an application not only by the father but against the adult child of the marriage, Ms C. In dealing with the father’s case, I expressly had regard to all evidence adduced in the case of the adult child in case there was some part of the evidence in that case which would assist the father in overcoming the Rice & Asplund [1978] FamCA 84 issue. Notably, the mother did not make an application for costs against the adult daughter. There is no requirement for me, in the absence of an application, to make an assessment of what costs could be paid by the adult daughter, and I don’t do so. I do, however, pursuant to subparagraph 117(2A)(g), take into account that there was another party to the proceedings against whom no application is made for costs but whose application took some time.
Conclusion on costs liability
Having regard to the above factors, I am satisfied that the father should make a substantial contribution to the costs incurred by the mother in these proceedings.
Quantum of costs
The mother seeks costs on an indemnity basis. To qualify for indemnity costs, I would need to be satisfied that the proceedings were pursued by the father for an ulterior purpose or with egregious intent. The bar is set at a high level and, in my view, the mother does not qualify for indemnity costs.
The costs should be calculated in accordance with Schedule 3 to the Family Law Rules 2004 (Cth) rather than by reference to the costs agreement under which the mother chose to employ her solicitors.
The costs claimed in accordance with the Schedule are a fraction of the costs actually incurred by the mother and which she will be required to pay. The costs claimed in accordance with the schedule are $29,373.88 and are itemised at paragraph 36 of the mother’s affidavit sworn on 15 October 2018.
In my assessment, it is appropriate that the significant contribution to be paid by the father to the mother in relation to her costs of the parenting proceedings, which ran between 11 and 15 December 2017, is the sum of $20,000.
The $20,000 should be paid within 60 days.
Liberty be reserved to the father to vary or set aside this Order
Having regard to the non-appearance of the father at Court today, I am prepared to allow the father 14 days in which to apply to the Court to seek to set aside or vary the orders that I make today. That application to set aside must include:-
(a) an application in a case specifying the orders he seeks;
(b)evidence which explains his non-attendance at Court today and, in the event that it is referrable to any accident, provision of a copy of corroborative documents, such as police reports, insurance claims and the like;
(c)an affidavit which responds in seriatim to the matters affirmed by the mother in her affidavit sworn on 15 October 2018 and otherwise sets out the basis upon which it would be just to set aside the order.
This order provides the father with one last opportunity to put cogent evidence or submissions before the court as to why he should not be liable to pay costs and, if it appears that he has a prima facie case, to have the order set aside and costs determined again. However, absent material of that kind, the costs order stands and must be paid in 60 days.
Cost of this costs application
The mother claims costs of this day on the basis that, had the father agreed to costs earlier, she would not have been put to the expense of appearances this day. Notably, the mother has not succeeded in the terms of her application for indemnity costs and she has been awarded only $20,000. However, in my view, it is still appropriate that the father be responsible for the mother’s costs of this day. They are claimed in the sum of $1477.98 for preparation of the costs application and for counsel in the sum of $1163.59, which is the maximum allowable under item 203 of Schedule 3.
I am, again, not satisfied that the father ought to pay for all of the mother’s costs of and incidental to this day. The mother recovered costs on a lesser scale than claimed. I take the costs into account as something in the vicinity of $2600, of which I consider that the father meeting $1500 for today is an appropriate contribution to be made and I will order accordingly.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 February 2019.
Associate:
Date: 13 March 2019
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