Kocak & Fahri
[2021] FedCFamC1F 17
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kocak & Fahri [2021] FedCFamC1F 17
File number(s): MLC 5924 of 2018 Judgment of: MACMILLAN J Date of judgment: 14 September 2021 Catchwords: FAMILY LAW – COSTS – where the father seeks costs on an indemnity basis to be paid by the mother and/or her legal practitioner – where the mother was wholly unsuccessful – where the mother’ application to vary parenting orders was “totally misguided” – where the mother’s legal practitioner conceded that she had a conflict – where neither the mother or her legal practitioner filed submissions in reply to the submissions filed by the father in support of his application for costs orders – where the circumstances justify an order for costs and indemnity costs are warranted – where an order is made that costs be shared jointly and severally by the mother and her legal practitioner. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr19.08, 19.10, 19.11, 19.18
Cases cited: Cassidy & Murphy (1995) FLC 92-633
Colgate–Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Eames & Eames [2018] FamCAFC 204
Fountain Selected Meats (Sales) v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Huda & Huda and Anor (Costs) [2017] FamCAFC 104
Kohan & Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784
Pilkvist & Coburn (Deceased) [2020] FamCA 92
Ridehalgh v Horsefield (1994) 3 All ER 848
Yunghanns & Yunghanns (2000) FLC 93-029
Division: Division 1 First Instance Number of paragraphs: 58 Date of last submission/s: 31 August 2020 Date of hearing: Written Submissions Place: Melbourne The Applicant: In Person Counsel for the First Respondent: Ms Dellidis Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
MLC 5924 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KOCAK
Applicant
AND: MR FAHRI
Respondent
ORDER MADE BY:
MACMILLAN J
DATE OF ORDER:
14 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The mother and/or her solicitor, Ms Serene Teffaha be jointly and severally liable for the Father's costs of and incidental to the Mother's Application in a Case filed 6 May 2020 fixed in the sum of $40,996.90.
2.All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fahri & Kocak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MACMILLAN J
On 12 June 2020 the mother’s application for parenting orders and the discharge of the Independent Children’s Lawyer (“ICL”) and the father’s application for orders permanently restraining the mother’s solicitor from acting on her behalf were listed for hearing in the Covid-19 list.
BACKGROUND
Although the background to the matter is set out in the reasons delivered on 10 August 2020 some of the procedural history is of particular relevance to the question of what, if any, order for costs the Court should make.
On 29 May 2018 the mother commenced proceedings in the Family Court of Australia seeking parenting orders and orders for property settlement.
On 1 August 2018 orders were made by Johns J that provided inter alia for the child to live with the mother and spend supervised time with the father each Sunday from 10.00 am to 4.00 pm. The father was also able to communicate with the child by telephone.
Orders were also made for Dr AA to psychiatrically assess both the father and the mother. His reports were filed on 17 October 2018.
On 1 May 2019 Senior Registrar Fitzgibbon made further parenting orders including inter alia an order that the father and the mother both attend upon an appropriately qualified psychiatrist or psychologist nominated by the ICL for the purposes of personality testing, with the testing and the report to be at their joint expense but paid for by the father at first instance.
On 27 May 2019 the matter was listed for a final hearing before Hartnett J commencing on 30 July 2019 and orders were made for the preparation of the matter for the final hearing. A further order was made by consent in similar terms to the order made by Senior Registrar Fitzgibbon on 1 May 2019 requiring the father and the mother attend upon Ms K (“Ms K”) for the purposes of personality testing.
On 19 June 2019 the mother filed an Application in a Case. The mother sought orders inter alia discharging a number of past orders and litigation funding.
On 28 June 2019 Hartnett J made orders dismissing the Application in a Case. The costs of the ICL were reserved and the mother was ordered to pay the father’s costs in the sum of $7,500 with such payment to be stayed until determination by final order.
On 30 July 2019 the psychiatric reports of both parties undertaken by Ms K were filed with the Court. On 31 July 2019 the matter came before Hartnett J with Ms Teffaha appearing on behalf of the applicant mother for the first time. Submissions were made by Ms Teffaha that the final hearing could not proceed as the mother was having a mental health crisis. On that basis orders were made restraining the parties from removing the child from the Commonwealth of Australia and placing his name on the Airport Watch List, that the mother ensure the child be delivered to the Child Dispute Services to meet with the Family Consultant and the ICL if appropriate, and that the matter be adjourned until later that day.
On the afternoon of 31 July 2019 Hartnett J made the following orders inter alia that:
(a)All existing parenting orders be suspended;
(b)The child spend continuous time with the father on the condition that during all such time the father’s sister Ms B be in substantial attendance, that the child spends all overnight time between the hours of 6.00 am and 7.00 pm at the home of Ms B (noting her home is also the father’s home) and the father make all arrangements for the child to speak with the mother this day and at his discretion thereafter with the father to terminate any calls if the child becomes distressed;
(c)The mother attend upon an independent psychologist as nominated by the ICL for the purposes of assessment as to her current mental health functioning, including whether she presents any risk to her child and a report shall be prepared containing this assessment. The cost of such attendance and report be borne by the father at first instance and he be at liberty to get costs from the mother hereafter in any proceedings between them. Notation C of the orders provided that the mother was to attend upon Ms K for an updated assessment of her current mental health.
(d)Until further order the mother or her agents be restrained from attending upon or being within 200m of the child’s school, Ms B’s home and any place in which the child is undertaking extracurricular activities.
On 29 October 2019 Hartnett J made orders by consent that provided inter alia for the mother to spend time with the child for a period of six hours each Sunday to be supervised by J Family Services and to occur at a public place. Orders were also made for the mother to attend upon a therapeutic counsellor or psychologist for the purposes of reportable counselling treatment to address issues as raised in the family report of Ms G, and the assessment of Ms K, and that the mother provide a copy of their reports to the said counsellor or psychologist prior to the commencement of such reportable counselling/treatment. The mother was also given leave to withdraw her allegations in relation to the father posing a risk of harm to the child.
Although on 26 December 2020 Ms K released her updated psychological evaluation of the mother, following the Case Conference on 27 February 2020, during which the parties resolved the property issues, an order was made that the mother attend upon an independent psychologist (other than Ms K or psychologists from M Health Service or P Health Service) as nominated by the ICL for the purposes of a review of her mental health functioning, including whether she presented any risk to the child, with such assessment to take place not before the end of June 2020 and as soon as practicable thereafter.
On 6 May 2020 the mother filed an Application in a Case, accompanied by a lengthy Affidavit seeking the following orders:
1.Interim Parenting Orders made on 31 July 2019 be fully discharged.
2.With exceptions of Orders 10 to 13 (inclusive) the Interim Parenting Orders made on 29 October 2019 be discharged.
3.With the exception of both parties agreement to attend FDRS, the Interim Parenting Orders made on 27 February 2020 be discharged.
4.Application is made pursuant to rule 8.02(1) of the Family Law Rules to remove the current Independent Childrens’ Lawyer (“ICL”) Ms Mary Lonergan and replace her with a new ICL.
5.Until further orders, the child X, born … 2012 (“the child”) live with the Applicant Mother.
6.Until further orders, the Father is to spend time and communicate with the Child as follows:
a.Each alternate Friday from 3.30pm until Monday 9.00am;
b.By telephone to the Applicant’s mobile phone between hours of 4.00pm and 6.00pm each Tuesday and Thursday (noting the existing Undertaking of Bail signed by the Respondent Father and the risk of family violence towards the Applicant Mother, a third party facilitated drop off and pick up is to be arranged in the absence of the school).
7.Holidays, festive celebrations and birthdays are to be shared equally between the mother and father
8.Given the child is immuno-compromised both Mother and Father are able to obtain all medical information regarding the child
On 1 June 2020 the father filed a Response seeking orders dismissing the mother’s Application in a Case and an order for costs. On 4 June 2020 the father filed an Amended Response seeking that Ms Teffaha be permanently restrained from acting on behalf of the mother and significantly for the purposes of the matters I must determine seeking an order that the mother or in the alternative Ms Teffaha pay his costs of the mother’s application and his Response. The mother’s Application in a Case and the father’s Amended Response were listed for hearing on 12 June 2020.
On 10 August 2020 I published my reasons and made the following orders:
(a)The Application in a Case filed by the Applicant Mother on 6 May 2020 be dismissed save and except to any application for costs;
(b)Ms Serene Teffaha and the firm 'Advocate Me' of Preston Victoria be, and are hereby, effective immediately, permanently restrained from acting in these proceedings for or on behalf of the mother Ms Kocak; and
(c)All applications for costs be reserved for judgment in Chambers.
On 31 August 2020 the father filed written submissions in support of his application for costs ("father's costs submissions") in accordance with the filing deadline as per the orders made on 10 August 2020. The mother did not file any written submissions either seeking an order that the father pay her costs or responding to the father's submissions in support of his application for costs. Ms Teffaha did not respond to the father’s submissions.
LEGAL PRINCIPLES
The general rule in this Court is that each party to the proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”) shall bear his or her own costs of those proceedings. However if the Court is satisfied that there are circumstances in the particular case which justify it doing so the Court can make such order as to costs as it considers just (s 117(2) of the Act).
In considering what if any order should be made the Court must have regard to the matters in s 117(2A) of the Act which are as follows:
(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, inspections, 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.
It is well settled that although the matters in s 117(2A) of the Act must be considered to the extent that they are relevant to the particular case no one factor prevails over the other and as submitted by the father one of these factors may be sufficient to justify there being an order for costs.
Rule 19.18 of the Family Law Rules 2004 (Cth) ("the Rules") sets out the various methods by which any costs that are ordered may be calculated. The Court may order costs of a specific amount, as assessed on a particular basis such as party and party or indemnity costs, in accordance with the method specified in the order or for part of a case or part of an amount assessed in accordance with Schedule 3 of the Rules. The general rule is that when the Court makes an order for costs those costs are calculated on a party and party basis.
Indemnity Costs
When determining whether costs should be awarded on an indemnity basis the Full Court of the Family Court of Australia (“Full Court”) in Kohan & Kohan (1993) FLC 92-340 (“Kohan”) said (at 79,614) that the Court "…should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind".
Holden CJ in Munday v Bowman (1997) FLC 92-784 ("Munday") (at 84,660) summarised the circumstances which might warrant an order for indemnity costs identified by Shepherd J in the decision of Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 ("Colgate"). They include the following:
(1)Where an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts;
(2)The making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;
(3)Evidence of particular misconduct causing loss of time to the court and to other parties;
(4)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; and/or
(5)An imprudent refusal of an offer to compromise.
However the circumstances which might support an order for costs being made on an indemnity basis are also not closed. In Yunghanns & Yunghanns (2000) FLC 93-029 Lindenmayer and Holden JJ said (at 87,471) as follows:
…It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought. All that is required is that the Court asked to exercise the discretion be satisfied that some ''particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis”.
In his support for his application for indemnity costs the father also relied upon the recent decision of the Full Court in Eames & Eames [2018] FamCAFC 204 where Alstergren DCJ, Aldridge and Austin JJ cited at [103] with approval the following statement by Woodward J in Fountain Selected Meats (Sales) v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401:
I believe that it is appropriate to consider awarding “solicitor and client” or “indemnity” costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.
A party applying for costs on an indemnity basis, in accordance with r 19.08 of the Rules, must inform the Court if the party is bound by a costs agreement in relation to those costs and the terms of that agreement. The Costs Agreement signed by the father and his solicitors Mills Oakley on 22 June 2018 was annexed to the father's cost submissions.
Costs Order against a Solicitor
The father now seeks an order that the mother and/or her solicitor Ms Teffaha pay his costs either on an indemnity basis or in the alternative party/party costs.
Rule 19.10 of the Rules provides as follows:
Costs orders against lawyers
(1)A person may apply for an order under subrule (2) against a lawyer for costs thrown away during a case, for a reason including:
(a) The lawyer's failure to comply with these Rules or an order;
(b) The lawyer's failure to comply with a pre-action procedure;
(c) The lawyer's improper or unreasonable conduct; and
(d) Undue delay or default by the lawyer.
(2) The court may make an order, including an order that the lawyer:
(a) Not charge the client for work specified in the order;
(b) Repay money that the client has already paid towards those costs;
(c)Repay to the client any costs that the client has been ordered to pay to another party;
(d)Pay the costs of a party; or
(e) Repay another person's costs found to be incurred or wasted.
In Cassidy & Murray (1995) FLC 92-633 (“Cassidy”) the Full Court confirmed (at 82-362) the “undoubted power in this Court to order a legal practitioner to pay the costs of one or all of the parties in certain circumstances” and that in light of the history of the case law on this topic “in our view it is now settled law that power to award costs against solicitors in proceedings is contained within s 117(2) of the Family Law Act.”
In Cassidy, Fogarty, Kay and Hase JJ referred to the decision of Ridehalgh v Horsefield (1994) 3 All ER 848 where Sir Thomas Bingham MR said as follows:
Solicitors and barristers may in certain circumstances be ordered to compensate a party to litigation other than the client for whom they act for costs incurred by that party as a result of acts done or omitted by the solicitors or barristers in their conduct of the litigation. The argument we have heard discloses a tension between two important public interests. One is that lawyers should not be deterred from pursuing their clients' interests by fear of incurring a personal liability to their clients' opponents; that they should not be penalised by orders to pay costs without a fair opportunity to defend themselves; that wasted costs orders should not become a back door means of recovering costs not otherwise recoverable against the legally aided or impoverished litigants; and that the remedy should not grow unchecked to become more damaging than the disease. The other public interest, recently and clearly affirmed by Act of Parliament, is that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponents' lawyers. The reconciliation of these public interests is our task in these appeals. Full weight must be given to the first of these public interests, but the wasted costs jurisdiction must not be emasculated.
The Full Court in Cassidy (at 82-365) said in conclusion as follows:
Whereas some of the cases say that there must be ``a serious dereliction of duty'' by the solicitor before a costs order can be made against that solicitor, in our view the matters identified by the Master of the Rolls in Ridehalgh v. Horsefield accurately reflect the law, which, in its application to this jurisdiction, can be set out as follows:
1. Pursuant to s. 117(2) Family Law Act, the Court has jurisdiction to make an order for costs against a solicitor or a non-party.
2. The court should not make such an order without giving the person to be affected by the order an opportunity to be heard.
3. The Court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of serious professional misconduct.
4. The solicitor has a duty to the Court to promote the interests of justice whilst at the same time attending to the needs of the solicitor's client.
5. A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default or negligence, any of which are found by a Court to be of a serious nature, may be sufficient to justify an order.
6. The jurisdiction is compensatory.
In the decision of the Full Court in Huda & Huda And Anor (Costs) [2017] FamCAFC 104 May J referred with approval to the decision of the Full Court in Cassidy and said as follows:
23.The essential question for determination is whether the wife’s solicitors acted improperly or unreasonably (r 19.10(1)(c)) or that the respondents costs were wasted (r 19.10(2)(e)). One basis claimed for the order for costs and on an indemnity basis is that there was an absence of evidence to support the wife’s application. Further, it is contended that the unlikely success of the application was raised with the solicitors for the wife in correspondence and ignored by them.
24.An example of the level of the serious nature of the conduct of a solicitor required for a costs order to be made is Z (a Solicitor) & Limousin (2010) FLC 93-433. The basis for the order was:
203.…the failure of, or disregard by the solicitor, a very experienced practitioner in the jurisdiction, to conclude that the proceedings had no prospect of success, and his failure to advise discontinuance, or for him to withdraw from them, within a reasonable time, which justified the order. …
In the recent decision of Pilkvist & Coburn (Deceased) [2020] FamCA 92 Carew J said (at [44]) as follows:
A costs order can be made against a lawyer where they have failed to comply with the Rules or where their conduct has been improper or unreasonable. There is no requirement for a finding of negligence or professional misconduct or default. Of course, not every failure to comply with the Rules would warrant a costs order. In my view, it would only be in cases where the failure is clear and the consequences serious that costs against a lawyer would be warranted. Likewise, not every example of a lawyer acting improperly or unreasonably would necessarily warrant a costs order. The discretion to award costs should be exercised with caution bearing in mind the competing public policy interests. I am also mindful that the applicant has not waived legal professional privilege and in those circumstances, not every relevant fact may be known to me.
In order to reach the threshold in which costs are awarded against a solicitor there needs to be evidence of the ‘wasting of costs’ not simply inappropriate behaviour, if there is only inappropriate behaviour a referral to the appropriate legal disciplinary body might be a more appropriate course of action. This is because the power within r 19.10 of the Rules is compensatory and not punitive in nature.
PROCEDURAL FAIRNESS
The lawyer from whom an order for costs is sought is entitled to procedural fairness. Rule 19.11 of the Rules states as follows:
Notice of costs order
(1)Before making an order for costs against a lawyer or other person who is not a party to a case, the court must give the lawyer or other person a reasonable opportunity to be heard.
(2)If a party who is represented by a lawyer is not present when an order is made that costs are to be paid by the party or the party's lawyer, the party's lawyer must give the party written notice of the order and an explanation of the reason for the order.
In his Amended Response to the mother’s Application in a Case filed on 4 June 2020, the father sought an order that the mother or in the alternative Ms Teffaha pay his costs of the mother’s Application and his Response to that application. On 10 August 2020 my reasons and the orders, which included a timetable for the filing of any submissions in support of any application for costs, was forwarded by the Court to Ms Teffaha by email addressed to …, the email address on the mother’s application. I am satisfied in these circumstances that Ms Teffaha was aware that the father was seeking costs against her and aware of the orders for the filing of submissions in support of any application for costs.
I am also satisfied that the father’s submissions in support of his application for costs were served upon Ms Teffaha by letter addressed to her at Advocate Me, Preston Victoria and by email addressed to her at …. As Ms Teffaha had been restrained from acting on behalf of the mother the father’s submission were also forwarded to the mother by email. I am satisfied that in these circumstances Ms Teffaha being aware of the application for costs against her had the opportunity to be heard by filing submissions in response to that application and has not done so.
ARE THEIR CIRCUMSTANCES JUSTIFYING AN ORDER FOR COSTS?
The father submits that although the Court is required to consider all of the s 117(2A) factors there are two of those factors which stand out in this case.
The Conduct of the Parties to the Proceedings - s 117(2A)(c)
As submitted by the father I found that the mother’s Application in a Case filed 6 May 2020 in which she sought to vary the parenting orders made by consent some 9 weeks earlier was, in circumstances where she had failed to comply with an order also made by consent that she be further psychologically assessed, “totally misguided”.
I also dismissed the mother’s application to discharge the ICL having found that the mother had misinterpreted both the evidence upon which she relied in support of her application and the role of the ICL. I found that in relation to this issue that the evidence did not establish that the ICL had not discharged her duty to act in the child’s best interests or demonstrated any bias toward the mother. In my view the mother’s application to discharge the ICL was similarly misconceived.
I am satisfied with respect to the father’s application that the mother be restrained from instructing Ms Teffaha to act on her behalf that the mother continued to instruct Ms Teffaha to act on her behalf notwithstanding the robust views expressed by the presiding Magistrate during the intervention order proceedings as to the obvious difficulty of Ms Teffaha continuing to act on her behalf in circumstances where she was also a witness in the case and notwithstanding the father’s objections.
Even if the mother had not understood why Ms Teffaha should not act on her behalf, although I am satisfied that was not likely the case, Ms Teffaha should have recognised the conflict, as she ultimately did during the course of the hearing, and either advised the mother not to oppose the father’s application or withdrawn. Although I found that Ms Teffaha lacked objectivity and may have prejudiced the mother’s case and it is not possible to determine what advice if any Ms Teffaha gave the mother in relation to this issue, that the mother opposed the father’s application and Ms Teffaha would not withdraw when requested to do so left the father with no alternative other than to seek orders restraining Ms Teffaha from acting on behalf of the mother.
I accept as submitted by the father that the costs he incurred in opposing the mother’s application to vary the parenting orders and discharge the ICL and his application to restrain Ms Teffaha from acting for the mother were in these circumstances caused by the conduct of the mother and her solicitor.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings – s 117(2A)(e)
I accept as submitted by the father that the mother was wholly unsuccessful. The mother’s application to vary the parenting orders and discharge the ICL was dismissed and the Court made the orders sought by the father restraining Ms Teffaha from continuing to act on behalf of the mother.
Financial Circumstances of the Mother - s 117(2A)(a)
It is the father’s case that the mother’s financial circumstances are such that she can afford to meet any order for costs the Court might make but that even if she did not have that capacity that would not preclude the Court making an order for costs in favour of the father. I am satisfied that on 5 August 2021 the Court made orders pursuant to which the mother is to receive the sum of $385,000 by way of property settlement and that in these circumstance she has the capacity to meet an order for costs. Even if she does not have the necessary funds, the father seeks an order for costs against both the mother and Ms Teffaha, which I will address in due course.
In circumstances where Ms Teffaha has chosen not to file any submissions in reply to the father’s submission in support of his application for costs I am unable to make findings as to her capacity to meet an order for costs. However in circumstances where the father’s application for costs against her is in effect unopposed I am satisfied that this should not preclude the Court making an order for costs against Ms Teffaha.
Legal Aid - s 117(2A)(b)
Neither the father nor the mother are in receipt of legal aid.
Whether proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court - s 117(2A)(d)
Order 10 of the interim parenting orders by consent of 27 February 2020 provided as follows:
The Mother attend upon an independent psychologist (other than Ms K or psychologists from M Health Service or P Health Service) as nominated by the Independent Children’s Lawyer for the purposes of a review of her mental health functioning, including whether she presents any risk to the child, and a report be prepared thereafter, such assessment to take place not before the end of June 2020 and as soon as practicable thereafter.
At paragraph 25 of my reasons I stated as follows:
As submitted by counsel for the father the mother’s mental health is a critical issue in this case. It is difficult to understand in these circumstances why the mother would have consented to orders on 27 February 2020 requiring her to attend upon an independent psychologist nominated by the ICL to assess her mental health functioning, including whether she presents a risk to the child, and then both failed to comply with that order and then filed an application without that assessment having been completed, and more importantly how the court could make an order discharging the previous orders and returning the child to the mother’s care in the absence of that critical evidence.
Although the proceedings may strictly speaking not have been necessitated by the mother’s failure to comply with a previous order in my view the fact that she filed an application and insisted on pursuing that application in the face of the opposition of the father and the ICL, without having complied with the orders requiring her to be assessed is a relevant consideration.
Whether any party to the proceedings has made an offer in writing to the other party to the proceedings to settle and the terms of any such offer - s 117(2A)(f)
Having regard to the letter dated 7 May 2020 sent by the father’s solicitor to settle the matter I accept as submitted by the father that although there may not have been an offer to settle the matter the mother was on notice that the father would be seeking costs against her in the event that she pursued her application. That letter said as follows:
Given the considerable expense our client is again being put to in having to defend your client’s baseless application, we put you and your client on firm notice that our client will be seeking that your client’s application be immediately struck out at the hearing on 8 May 2020 with costs to be sought against your client on an indemnity basis.
Other Matters - s 117(2A)(g)
The father also relied upon the conduct of the mother in other proceedings in this Court and in other courts in support of his application for costs, in particular as to whether the Court should order indemnity cost including as follows:
(a)On 19 June 2020 the mother filed an Application in a Case seeking that consent orders made on 28 June 2019 be dismissed. Hartnett J after hearing submissions dismissed the mother’s Application in a Case and made orders that the mother pay the father’s costs on an indemnity basis in the sum of $7,500. This order was stayed until the property proceedings were complete;
(b)On 22 August 2019 the County Court of Victoria ordered that the mother pay the father’s costs fixed in the sum of $10,853;
(c)On 17 June 2019 the Magistrates Court of Victoria ordered that the mother pay the father’s costs fixed in the sum of $4,637;
(d) On 22 August 2018 the Magistrates Court of Victoria ordered that the mother pay the father’s costs fixed in the sum of $2,200;
(e) On 19 September 2018 the Magistrates Court of Victoria ordered that the mother pay the father’s costs fixed in the sum of $2,200; and
(f)On 17 June 2018 the Magistrates Court of Victoria ordered that the mother pay the costs of the father’s brother Mr KK following unsuccessful Intervention Order proceedings against him. These costs were fixed in the sum of $2,200.
In my view what this history of litigation does demonstrate is that as submitted by the father the mother is a seasoned litigant and would in these circumstances likely to have been well aware of the consequences of pursuing unmeritorious applications. Even if the mother did not understand Ms Teffaha, as a qualified legal practitioner, should have both understood and have advised her client accordingly. .
In all of circumstances I am satisfied that there are circumstances in this case that justify an order for costs.
QUANTUM OF COSTS
Although the general rule is that costs should be payable on a party and party basis I am satisfied that the circumstances of this case are exceptional and warrant an order for indemnity costs. Although I do not know what advice the mother received from Ms Teffaha and I have expressed significant reservations about her competence and her objectivity which raises questions about whether the mother was properly advised I am also satisfied that Ms Teffaha, as a qualified legal practitioner, would or should have known that, given the history of the proceedings, the mother not having been further psychiatrically assessed as require by the orders her application had no reasonable prospect of success. And in my view the mother as an experienced litigant having consented to orders to that further psychiatric assessment should have known, whatever advice she was given, that her application had not reasonable prospect of success. And that similarly there was little prospect given what I am satisfied were obvious conflicts of resisting the father’s application restraining Ms Teffaha from acting on behalf on her behalf.
I am satisfied that the circumstances are exceptional and that the father should not be required to bear the costs of meeting the mother’s misconceived application and I propose make an order for indemnity costs.
This leaves the question of who should be responsible for paying those costs. In my reasons expressed my concern that not only was there a conflict but that “the mother’s solicitor’s lack of objectivity may have prejudiced the mother’s case and may have indirectly had a negative impact on the welfare of the child”. Whilst in these circumstances it is reasonable to infer that the mother may not have been properly advised that the liability for costs should rest solely on Ms Teffaha, as previously referred to the mother is an experienced litigant.
In these circumstances I am satisfied that the mother and Ms Teffaha should be jointly and severally liable to pay the father’s costs as sought by the father.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan. Associate:
Dated: 14 September 2021
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