LAMBERT and HAMEL
[2023] FCWA 71
•4 APRIL 2023
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: LAMBERT and HAMEL [2023] FCWA 71
CORAM: COHEN J
HEARD: IN CHAMBERS
DELIVERED : 4 APRIL 2023
FILE NO/S: 1280 of 2019
BETWEEN: MR LAMBERT
Applicant
AND
MS HAMEL
First Respondent
AND
MS RADLEY
Second Respondent
Catchwords:
COSTS – Child related proceedings – where mother seeks costs against paternal grandmother in substantive proceedings – where paternal grandmother discontinued her application – where court orders paternal grandmother cover mother's additional costs incurred for the Single Expert Witness – where court finds balance of mother's application "objectively without merit" – application otherwise dismissed
COSTS – Costs proceedings – where paternal grandmother seeks indemnity costs against mother in costs proceedings – where mother was put on notice of intention to seek a costs order in respect of the costs application – where court finds balance of the mother's application "objectively without merit" – fixed costs ordered against the mother on a party-party basis
Legislation:
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Lawyer A |
| First Respondent | : | Lawyer B |
| Second Respondent | : | Lawyer C |
Solicitors:
| Applicant | : | Law Firm A |
| First Respondent | : | Law Firm B |
| Second Respondent | : | Law Firm C |
Case(s) referred to in decision(s):
[2015] FCWA 65
Anison & Anison (2019) FLC 93-908
Bant v Clayton (Costs) (2016) 56 Fam LR 31
Bele & Vaughan (Costs) [2012] FamCAFC 198
Braithwaite & Braithwaite [2007] FamCA 468
Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225
Collins and Collins (1985) FLC 91-603
Greedy and Greedy (1982) FLC 91-250
I and I (No 2) (1995) FLC 92-625
Idoport Pty Ltd v National Australia Bank Ltd & Ors [2007] NSWSC 23
Jones v Dunkel (1959) 101 CLR 298
Kelly and Kelly (No 2) (1981) FLC 91-108
Kohan and Kohan (1993) FLC 92-340
Luadaka v Luadaka (1998) FLC 92-830
Madin v Palis (2016) 55 Fam LR 59
Munday v Bowman (1997) FLC 92-784
Parke & The Estate of the Late A Parke (2016) FLC 93-748
Prantage & Prantage (2013) FLC 93-544
Redmond & Redmond and Anor (Costs) [2014] FamCAFC 55
Stephens v Stephens and Anor (2010) 44 Fam LR 117
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lambert and Hamel has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
1The respondent mother, [Ms Hamel] ("the mother") seeks an order for costs against the paternal grandmother, [Ms Radley] ("the paternal grandmother") who had been the second respondent in these proceedings until she filed a notice of discontinuance.
Background
2The child, [Child A] born [in] 2013 ("[Child A]"), was the subject of the substantive proceedings, which were commenced by the applicant father, [Mr Lambert] ("the father") on 20 February 2019.
3Just prior to commencing proceedings, the father moved to [City A] as part of his employment with [Federal Agency A].[1] On or around 8 November 2021, the father subsequently relocated to [State B], again for employment purposes, where he continues to live.[2]
[1] Father's Case Information Affidavit (filed 20 February 2019) [12].
[2] Mother's Contravention Affidavit Contravention Application (filed 24 Aug 2022) [25].
4The mother filed her form 1A response on 2 May 2019.
5[In] December 2019, the court made an order that the paternal grandmother have leave to intervene in the proceedings, and she was, thereafter, known as the second respondent. The paternal grandmother filed her form 1A response on 20 December 2019 seeking interim and final orders for Child A to spend defined periods of time with her, for electronic communication with Child A, and for permission to send Child A letters, cards, and gifts.
6At the time of filing her responding documents, the paternal grandmother was residing in State B.[3] Interstate travel was required to facilitate the paternal grandmother and father spending time with Child A,[4] which was impacted by COVID-19 restrictions put in place by the various State governments.
[3] Paternal Grandmother's Case Information Affidavit (filed 20 December 2019) [1].
[4] See ibid [20(9)].
7On 23 March 2020, the court made detailed orders about the time Child A was to spend and communicate with her father, trial programming orders, and giving the paternal grandmother leave to seek a relisting of her application for interim orders set out in her form 1A response.
8[In late] 2020, the paternal grandmother's solicitors wrote to the court requesting a relisting following the easing of travel restrictions. Her solicitors also advised the court the paternal grandmother had attempted to negotiate with the mother about spending time with Child A, which was not successful.
9The proceedings were listed to an interim hearing [in] February 2021, which proceeded. The presiding Magistrate reserved his decision, which was subsequently handed down [several days later]. On that occasion, the court made the following orders:
1The child, [Child A], born [in] 2013, spend time with the Second Respondent, [Ms Radley], in Perth in 2021 as follows:
(a) on the Labour Day long weekend from the conclusion of school on 26 February 2021 until 5:00pm on 1 March 2021;
(b) on the Western Australia Day long weekend from the conclusion of school on 4 June 2021 to 5:00pm on 7 June 2021;
(c) from the conclusion of school on 5 November 2021 to 5:00pm on 7 November 2021; and
(d) on one further weekend after 1 July 2021 to be nominated by the Second Respondent on 30 days' notice, from the conclusion of school Friday until the commencement of school Monday (or Tuesday if the Monday is a public holiday).
2Upon the Second Respondent giving the First Respondent, [Ms Hamel], 30 days' notice of her intention to travel to Perth, the child spend time with the Second Respondent in Perth in 2022 and thereafter as follows:
(a) from the conclusion of school Friday until the commencement of school Monday; or
(b) from the conclusion of school Friday until the commencement of school Tuesday, if Monday is a public holiday.
3 The time referred to in the preceding paragraph occur no more than 4 times a year, at approximately 3 monthly intervals, unless otherwise agreed.
4 Handover is to occur at school on school days, and at the First Respondent's residence on non-school days.
5 The Second Respondent be permitted to contact the child via Skype or telephone as follows:
(a) once a month at times agreed between the Second Respondent and the parent with whom the child is spending time, or absent agreement at 9:00am AWST on the last Sunday morning of each month; and
(b) on the child's birthday, Easter Sunday and Christmas Day at times agreed between the Second Respondent and the parent with whom the child is spending time, or absent agreement at 7:00pm AWST.
6 In relation to such communication, each parent shall:
(a) ensure the child is available to receive the telephone or Skype call; and
(b) arrange for the child to telephone or Skype call the Second Respondent on the following night if, for any unforeseen circumstance, the child misses the telephone call.
7 The Second Respondent be permitted to send letters, cards, postcards, and/or gifts to the child, and the Applicant, [Mr Lambert], and the Second Respondent ensure that any such correspondence or gift is provided to the child within 48 hours or receipt of same.
8 There be liberty to the parties to relist the proceedings upon giving reasonable notice to the other party.
9 Any application for costs be made by way of written submissions to be filed within 21 days from the date hereof.
10 Any reply to submissions in respect to costs be filed 14 days thereafter.
11The question of any costs application be determined in Chambers.
12The said proceedings otherwise be transferred to the Family Court of Western Australia.
10Upon review of the court file, no party made an application for costs.
11On 15 March 2021, the parties were advised the proceedings had been listed for a readiness hearing [in mid] 2021.
12On 19 May 2021, the father's solicitors wrote to the court advising that in their opinion, the issues in dispute appeared minor, and they requested consideration be given to listing the proceedings for a pre-trial conference.
13On 24 May 2021, the paternal grandmother filed her trial material pursuant to the [trial programming orders].
14On 2 June 2021, the mother's solicitors, [Law Firm D], wrote to the court in respect to the father's solicitor's suggestion that the parties participate in a pre-trial conference. The mother's solicitor advised as follows:
We respectfully do not agree with the position of the Applicant Father, that the issues in dispute are very minor. Unfortunately, there was no conferral between the parties prior to that being conveyed to the Court.
We are instructed that our client does not wish to attend a Pre-Trial Conference and does not wish to occupy the Court's limited mediation resources.
(As per original)
15Having regard to the Family Court Rules 2021 ("the Rules"), in particular the main purpose of the Rules, how the court is to apply the Rules to promote the main purpose, and the responsibility of the parties and solicitors in achieving the main purpose, the mother's attitude (and that of her then solicitors) to an opportunity to further mediate, is telling.
16The readiness hearing proceeded [as listed]. The court made an order extending the time within which the mother had to comply with [the trial programming orders]. The proceedings were otherwise included in the cases awaiting allocation of a trial date to be called over on a date to be advised.
17On 13 June 2022, the paternal grandmother filed a form 18 application for contravention ("the Contravention Application") alleging the mother breached the orders made 15 February 2021 by not making Child A available to spend time with her from 3 to 7 June 2022; her application was listed [in early] August 2022.
18On 25 July 2022, the father filed a form 2 application seeking the appointment of a Single Expert Witness ("SEW"). The father proposed various psychologists and particularly mooted the appointment of [Psychologist A]. In his affidavit filed in support of his application, the father raised concern about the mother's unwillingness to support time between himself and Child A pursuant to the consent orders made [in] 2020.[5] The father also deposed to the mother's unilateral decision to engage a clinical psychologist for Child A, [Psychologist B], of which he was unaware until he was provided with a report from Psychologist B setting out her recommendations about Child A's communication and time with her father.[6] It is unclear how Psychologist B came to form any views about court ordered arrangements in circumstances where she had not met the father or observed him with Child A.
[5] Father's Single Expert Witness Application Affidavit (filed 25 July 2022) [13] – [16].
[6] Ibid [17] – [20].
19On 29 July 2022, the mother filed a form 2A response seeking the appointment of [Psychologist C] as SEW. The mother filed a 29-page affidavit in support of her application. The mother refused to consent to the appointment of certain psychologists proposed by the father, as she had personally attended at the practice where they worked.[7] As such, her refusal was entirely appropriate.
[7] Mother's Single Expert Witness Application Affidavit (filed 29 July 2022) [23].
20Almost the entirety of the mother's affidavit is focused on concerns she has for Child A's mental health functioning in the context of Child A's relationship with her father. The mother also deposed to having concern about the escalating cost of the proceedings,[8] and only sought Psychologist C's appointment if the court decided that a SEW should be appointed,[9] which the court clearly did.
[8] Ibid [25].
[9] Ibid [26].
21[In early] August 2022, the court made orders by consent for Psychologist C's appointment. Paragraph 12 of the minute of consent orders attached to those orders relates to the parties sharing Psychologist C's costs equally.[10] The presiding Magistrate programmed the Contravention Application to a contravention conference [in late] August 2022. The proceedings were otherwise adjourned generally pending publication of Psychologist C's report and the parties' costs were reserved.
[10] Psychologist C's costs were fixed at $12,500 (GST inclusive).
22On 9 August 2022, the mother filed a form 2 application, which she sought be dealt with on an urgent basis. The mother sought to:
(a)discharge:
(i)the orders made [in] February 2021;
(ii)paragraphs 2 to 5 (inclusive) of the orders made [in] March 2020; and
(iii)paragraph 8 of the orders made [in] March 2020; and
(b)proposed alternate arrangements in respect to Child A's time with her father and sought various conditions in respect to the same.
23The mother's application was listed to [late] September 2022 for directions only.
24The contravention conference was convened [in late] August 2022. The convening Registrar's orders set out the following recitals:
(a) Substantive proceedings between all three parties in relation to parenting orders for the child, [Child A] born [in] 2013.
(b) [In] February 2021 after an interim hearing, orders were made by His Honour Magistrate Glass in relation to contact for the 2nd Respondent.
(c) On 13 June 2022 the 2nd Respondent filed a Contravention Application in relation to these orders alleging that the contact that she should have had on 3 June 2022 did not proceed.
(d)[In early] August 2022 the Presiding Magistrate, Her Honour Magistrate Wadsworth ordered the parties to attend the contravention conference (excusing the Applicant's attendance).
(e) At the commencement of the conference, the parties and their respective lawyers agreed that the discussions at the conference would be confidential.
(f) There is a Form 2 Application by the 1st Respondent listed for directions [in late] September 2022 seeking suspension of the orders made [in] February 2021.
(g) The substantive proceedings between the parties are now listed for Callover [in late] 2022.
(h) Although orders were made by consent [in early] August 2022 for the appointment of a Single Expert Witness [Psychologist C], it is unlikely there will be interviews in relation to that report before November 2022.
(i) There was discussion about the provisions of sections 60C and 60B of the Family Law Act 1975 (Cth).
(j) The conference convened initially in the presence of both the 1st Respondent and 2nd Respondent, but after a short time, proceeded by way of shuttle.
(k) The parties negotiated and were able to reach agreement in relation to some interim arrangements.
(l) A Minute of Consent Orders was prepared.
(m) As the 1st Respondent needed to collect the child, she left the conference at 5:35pm.
(n) In subsequent telephone discussions, the 1st Respondent provided instructions to her solicitor to sign the handwritten Minute of Consent Orders which was countersigned by the 2nd Respondent.
(o) At the request of the solicitors for the 1st Respondent and the 2nd Respondent, orders have been made by consent in terms of that handwritten minute.
(p) The solicitor for the 1st Respondent will provide a typed version of the Minute.
(q)Depending upon the outcome of contact arrangements for 3 and 4 September 2022, the solicitors for the parties, in the week commencing 5 September 2022 will provide a Minute of Proposed Orders in relation to this Contravention Application currently before the Court.
25The relevant paragraphs of the minute of consent orders attached to those orders are as follows:
1.The mother, [Ms Hamel], use her best endeavours to encourage [Child A] to spend time with the paternal grandmother, as follows:
1.1From 9am to 6pm on Saturday 3 September 2022; and
1.2From 9am to 12pm on Sunday 4 September 2022.
2.The mother facilitate a phone call between [Child A] and the paternal grandmother on 1 September 2022 in relation to the contact set out above.
3.Subject to paragraph 4 hereof, if [Child A] spends time with the paternal grandmother in terms of paragraph 1.1 and 1.2, then the paternal grandmother do all things and sign all documents necessary to forthwith cause her Contravention Application filed 3 June 2022 to be dismissed without any orders as to costs.
26On 5 September 2022, the court replicated the orders made by the Registrar on 31 August 2022.
27On 19 September 2022, the father filed a form 2A response seeking orders, in essence, that the mother's form 2 application for discharge and variation of the current arrangements be dismissed and that all previous orders for him to communicate and spend time with Child A remain in full force and effect.
28[In late] September 2022, the court made the following orders:
1.Upon the Court noting that the agreement reached at the Contravention Conference [in late] August 2022 was complied with, by consent, the Form 18 Contravention Application filed on 13 June 2022 otherwise be and is hereby dismissed.
2.The Form 2 Application filed 25 July 2022 and the Form 2A Response filed 29 July 2022 be adjourned generally, with liberty to the parties to relist upon short notice.
3.In the event matter is relisted, then by no later than 7 days prior to the resumed hearing, the Second Respondent is to file and serve the following documents:
(a) a Form 2A Response; and
(b) an affidavit of herself.
4.In the event that no request to relist the Form 2 Application and Form 2A Response is received by close of Registry on 20 December 2022, the Application and Response will otherwise be dismissed without further notice to the parties.
5.The said proceedings otherwise be transferred to the Family Court of Western Australia.
29It is salient to note for present purposes, the paternal grandmother's application was dismissed without any order as to costs.
30[In late] 2022, the proceedings were listed for a 3-day trial to commence [in early] 2023.
31On 27 October 2022, the paternal grandmother filed a form 10 notice of discontinuance under cover of letter of same date. In the covering letter, the paternal grandmother advised the court she would not pay the setting down and hearing fees pursuant to the orders dated [in] March 2020 nor would she make arrangements to meet her share of Psychologist C's costs as ordered pursuant to paragraph 12 of the minute of consent orders attached to the orders made [in early] August 2022.
32On 31 October 2022, the court accepted the paternal grandmother's form 10 notice of discontinuance for filing and removed her as a party. No order was made in respect of the setting down and hearing fees, nor the apportionment of Psychologist C's costs.
33On 2 November 2022, I made orders in chambers discharging the previous order in respect to the setting down and hearing fee for trial and apportioning the non‑refundable setting down and hearing fees for a 3 day trial between the mother and father at 50 per cent each. I did not make any orders regarding Psychologist C's costs.
34On 16 November 2022, the mother filed a form 2 application seeking costs against the paternal grandmother. The orders sought by the mother are set out at [48] below.
35Law Firm D ceased acting for the mother on 5 December 2022, and on 6 December 2022, [Law Firm B] commenced acting.
36[In] December 2022, I made the following programming orders in respect of the costs dispute:
Respondent's Cost Application
1.By no later than close of Registry on 23 December 2022, the solicitors for the Applicant, [Mr Lambert], shall advise the solicitors for the Respondent, [Ms Hamel], as to whether the paternal grandmother will be called as a witness in the forthcoming trial.
2.In the event the Respondent's costs application against the paternal grandmother is pressed, by no later than close of Registry on 27 January 2023, the Respondent file and serve written submissions in respect of costs.
3.Within 21 days of service of written submissions in relation to costs, as referred to in the preceding paragraph, the paternal grandmother have leave to file and serve written submissions in response, together with a Form 8 notice of address for service.
4.The issue of costs otherwise be determined in Chambers.
5.In the event written submissions are not filed in compliance with paragraph 2 of these orders, the Respondent's Form 2 application e-Lodged 16 November 2022 be and is hereby dismissed.
37On 27 January 2023, the mother filed written submissions as to costs.
38On 7 February 2022, the court distributed Psychologist C's report. The paternal grandmother did not participate in Psychologist C's assessment, however, Psychologist C was provided with and considered documents filed by the paternal grandmother. In my view, this was both appropriate and necessary to the father's case, irrespective of the paternal grandmother's involvement or otherwise; he was alleging a failure by the mother to promote Child A's relationship with not only himself but other family members of importance to Child A, including but not limited to, the paternal grandmother. The ability of the parties to promote these relationships was a consideration to be addressed by Psychologist C in the terms of reference for her report.[11]
[11] Minute of Consent Orders attached to the Orders made [in early] August 2022 [1(f)(ii)].
39The trial in respect of the substantive proceedings was listed to commence on [in early] 2023. To the credit of the parties and their respective legal representatives, a final minute of consent orders was agreed. As the substantive proceedings had concluded, I enquired with counsel for the mother whether she continued to press her costs application against the paternal grandmother; I was subsequently advised she did.
40On 20 February 2023, the paternal grandmother filed her form 2A response and written submissions in reply. The paternal grandmother sought indemnity costs against the mother in respect of the costs application only, with her orders sought set out in full below at [50].
41On 21 February 2022, the court received a letter from the mother's solicitor raising concern about the paternal grandmother having filed a form 2A response in circumstances where my orders of 9 December 2022 did not explicitly permit her to do so. The letter went on to state as follows:
If the Court is persuaded to hear and determine, on the papers or otherwise, the paternal grandmother's costs application against the mother, our client seeks to be heard on the issue in the interests of procedural fairness and natural justice.
(As per original)
42The letter from the mother's solicitor also drew the court's attention to certain paragraphs in the paternal grandmother's written submissions which reference confidential information arising from the contravention conference.[12] I accepted the objection, and by letter dated 23 February 2022, I advised the parties of my intention to disregard the offending paragraphs.
[12] Paternal Grandmother's Written Submissions (filed 20 February 2023) [25]–[26] ("Paternal Grandmother's Costs Submissions").
43As the mother was pressing her application, the paternal grandmother was entitled to formally respond; the court's refusal to allow her to do so would have been tantamount to a denial of procedural fairness. Further, pursuant to r 150 of the Rules, the paternal grandmother was entitled to file a form 2A response, as she was seeking orders different to that of the mother, namely, costs against the mother if the mother's costs application was unsuccessful.
44On 23 February 2023, I made the following directions in chambers:
6.By no later than close of Registry on 10 March 2023, the Respondent has leave to file brief written submissions in reply, limited to 10 pages in length.
7.By no later than close of Registry on 17 March 2023, the Court is to be advised in writing, as to whether either party seeks to make brief oral submissions, and if so, the Court is to be advised of any unavailable dates and an estimate of hearing time. If the Court does not receive a reply on or prior to that date, her Honour will proceed to determine the costs application in Chambers.
45On 10 March 2022, the mother filed further written submissions in compliance with my directions.
46I note that on 20 March 2023, the mother's solicitors, Law Firm B, who had represented her from 6 December 2022, filed a notice of ceasing to act, and the mother's former solicitors, Law Firm D, came back onto the record.
47Neither party sought a relisting of the proceedings pursuant to the orders made 23 February 2023.
Orders sought
48The mother seeks orders in terms of her Application, in which she seeks the following orders:
1.That this application be listed [to the next hearing] at 10:00am.
2.That the formerly Second Respondent, [Ms Radley], do pay the costs of the Respondent, [Ms Hamel], as assessed or determined.
(As per original)
49The mother relies on:
(a)the affidavit of herself filed on 16 November 2022 in support of her application for costs ("Mother's Costs Affidavit");
(b)written submissions on costs filed 27 January 2023 ("Mother's Submissions");
(c)written submissions in reply filed 10 March 2023 ("Mother's Reply"); and
(d)the various affidavits referred to by her in her submissions.
50As per her form 2A response filed on 20 February 2023 ("Paternal Grandmother's Response"), the paternal grandmother seeks the following orders:
1.The Form 2 Application in a Case filed on 16 November 2022by [Ms Hamel] ("the mother") be dismissed.
2. The mother pay the costs of [Ms Radley] ("the grandmother") in relation to this costs application on an indemnity basis fixed in the sum of $7,000 or, in the alternative and without concession, fixed in such other sum deemed appropriate by the Court.
3. In If the Court shall determine that any portion of those costs sought pursuant to the preceding paragraph not be paid on an indemnity basis, the paternal grandmother seeks the costs be paid on a party/party basis fixed in sum of $3,000 or, in the alternative, fixed in such other sum deemed appropriate by the Court.
(As per original)
51The paternal grandmother relies on the following:
(a) her affidavit filed 1 November 2019 [35] – [36] ("Paternal Grandmother's Joinder Affidavit");
(b)her trial affidavit filed 24 May 2021 [13] – [46] ("Paternal Grandmother's Trial Affidavit");
(c) her affidavit filed 13 June 2022 ("Paternal Grandmother's Contravention Affidavit");
(d)her written submissions as to costs filed 20 February 2023 ("Paternal Grandmother's Submissions");
(e)the mother's affidavit filed 9 August 2022 ([62] and annexure 1) ("Mother's Interim Affidavit"); and
(f)the Mother's Cost Affidavit.
52I have carefully read all the documents relied on by the parties. However, I note that I have considered the proceedings holistically as part of my assessment.
53I have also considered the affidavit of the SEW, Psychologist C, filed 7 February 2023. Whilst I am acutely aware that the substantive proceedings settled by consent and Psychologist C was not cross-examined, her report forms part of the court file and there are aspects of her report I consider relevant to the discrete issue to be determined by me, including:
•her views about the mother's attitude towards Child A's relationship with her father and paternal grandmother and the reasonableness of the same;
•Child A's attitude towards spending time with her paternal grandmother; and
•Psychologist C's opinion or prediction about what is likely to happen to Child A's relationship with her father and paternal family members if the mother had sole parental responsibility for Child A.
Report of Psychologist C
54Whilst I accept that Psychologist C's evidence was untested as the matter settled, I do not consider her evidence irrelevant, and it becomes, for present purposes, a matter of weight. Accordingly, I note the following aspects of Psychologist C's assessment:
•Child A told Psychologist C that her mother and stepfather do not like her father or step-mother and she thought they, "sort of not like [Child B]", being the father and his partner's son;[13]
[13] Single Expert Witness Report, Psychologist C (filed 7 February 2023) ("SEW Report") 19.
•Child A wished her mother and stepfather liked her father;[14]
•Child A described her paternal grandmother as "awful helpful" and "very nice" and could not answer anything she did not like about her or spending time with her;[15]
•psychometric testing for the mother showed some problematic behaviour around obsessive-compulsive behaviour and thinking with a tendency towards overly rigid perfectionism;[16]
•the mother appears to rely heavily on what Child A has reportedly told her about her experiences with her father. Psychologist C considered there to be some danger in taking too literally Child A's complaints about her father and her experiences with her father when she appears to be sensitized to her parents' conflict, and perhaps her mother's disapproval of her father. The mother appears to suffer from feelings of resentment towards the father and his mother, in particular, and may be too keen to hear negative complaints about them from Child A;[17]
•Child A is at the centre of interest and affection to a large pool of family members;[18]
•Child A's behaviour with Psychologist B suggests that under pressure, she is likely to espouse thoughts, feelings and beliefs that are not her own (or at least not the full picture);[19]
•the mother's capacity to wholly meet Child A's emotional needs are compromised by a failure to understand Child A's enjoyment of the father;[20]
•the mother's capacity to encourage Child A's relationship with the father, and in my view, by extension, the paternal grandmother, is compromised by her strong beliefs about them, which may not be valid, nor does she appear to understand how her beliefs are likely to impact on Child A;[21]
•if the mother was granted sole parental responsibility, it would likely result in diminished time between Child A, her father and paternal family members, limited communication and estrangement from them, and that psychological assessment suggests she is not likely to facilitate these important relationships for Child A;[22] and
•Psychologist C's recommendation that Child A spend most school holiday periods with the father.[23]
[14] Ibid.
[15] Ibid 20, 21.
[16] Ibid 27.
[17] Ibid 32.
[18] Ibid 33.
[19] Ibid.
[20] Ibid 34.
[21] Ibid.
[22] Ibid 34–35.
[23] Ibid 35.
55Having regard to Psychologist C's report in its entirety and all the evidence before the court, I consider that I can safely conclude that where Psychologist C raises concern about the mother's attitude or beliefs about the father, those same beliefs extend to the paternal grandmother.
The mother's case
56The mother seeks costs only insofar as they relate to the paternal grandmother's involvement in the substantive proceedings.[24] The mother does not seek costs of, or incidental to, the Contravention Application[25] which, having regard to the outcome of that application, and comments and recommendations made by Psychologist C in her report, is sensible.
[24] Mother's Submissions [2].
[25] Ibid [3]; Mother's Costs Affidavit [28].
57It is submitted on behalf of the mother that she has experienced financial pressure because of the proceedings particularly due to the paternal grandmother's involvement.[26]
[26] Mother's Submissions [24]; Mother's Costs Affidavit [24] – [26].
58At the time the paternal grandmother intervened in the proceedings, all three parties lived in different states.[27] The mother asserts that after the father relocated to State B, she requested the paternal grandmother to discontinue as a party, as Child A could reasonably spend time with the paternal grandmother during those periods Child A was in the care of the father; the paternal grandmother refused to discontinue.[28]
[27] Mother's Submissions [30].
[28] Ibid [32].
59The mother submits that the paternal grandmother's involvement in the proceedings was misconceived and the evidence the paternal grandmother sought to adduce lacked probative value.[29] It is further submitted that the paternal grandmother's discontinuance justifies a costs order being made against her.[30]
[29] Ibid [41].
[30] Ibid [42] citing Bant v Clayton (Costs) (2016) 56 Fam LR 31 [16] (May, Strickland and Tree JJ).
60The mother also relies on various offers to settle, which the mother considered reasonable offers to comprise, that the paternal grandmother either refused or ignored.[31] It appears to be the mother's position that once the father moved to State B, Child A could spend time with the paternal grandmother during those periods Child A was spending time with the father.
[31] Mother's Submissions [50]; Mother's Costs Affidavit [10] – [19].
61Lastly, the mother refers to the increased costs involved with Psychologist C's assessment, which was to be split three ways.[32] As a result of the paternal grandmother's decision to discontinue, Psychologist C issued an updated invoice, which re-apportioned the paternal grandmother's third between the parents. As a result, the mother paid an additional $2,083.00.[33]
[32] Mother's Submissions [53]–[54]; Mother's Costs Affidavit [20] – [22].
[33] Mother's Submissions [55]; Mother's Costs Affidavit [23], annexure 1 "Further invoice received from [Psychologist C] attached to email dated 25 October 2022".
62The mother seeks costs on a party-party basis in the sum of $22,852.10, inclusive of disbursements.[34] In the alternative, and should items 1 ‑ 28 (inclusive) and 84 be discounted, the mother seeks costs in the sum of $14,429.40. Items 1 – 28 and 84 are in the amount of $8,845.10. On my calculation, this reduces the costs to $14,007.
Mother's procedural fairness objection
[34] Mother's Submissions [56], [60].
63As set out above at [41] – [43], the mother's solicitor wrote to the court upon receipt of the Paternal Grandmother's Response and Submissions raising concern about procedural fairness to the mother, which I respectfully fail to understand.
64 First, it is always open to a party to seek costs against another party in circumstances where an application for costs is unsuccessful. As such, the Paternal Grandmother's Response should have been reasonably expected and addressed in the mother's substantive written submissions.
65 Second, the mother was on notice that such an application would be brought if she pursued her costs application, which she elected to do.
66 Third, at the hearings on [in late] 2022 and [early] 2023, I specifically asked counsel for the mother whether she intended to pursue her costs application. In respect to the latter date, I observe the mother would have had the benefit of Psychologist C's report at the time she again elected to press her application.
67In the event I am wrong about the matters addressed above, I consider that any defect in that process was cured by granting the mother leave to file written submissions in reply, noting this leave was granted after:
(a)the distribution of Psychologist C's report;
(b)the mother and father reaching a minute of final consent orders on the first day of trial;
(c)the mother confirming for a second time in open court that she intended to pursue her costs application against the paternal grandmother; and
(d)was only agitated after the paternal grandmother filed her written submissions, to which she was entitled to submit pursuant to orders made [in late] 2022.
68All in all, I find the mother was sufficiently on notice of the paternal grandmother's application for indemnity costs, and that she had ample opportunity to respond to the case against her.
The paternal grandmother's case
69The paternal grandmother's position is that there should be no order as to costs arising from the substantive proceedings, and the Mother's Application should be dismissed with costs in her favour.[35]
[35] Paternal Grandmother's Submissions [3].
70In the Paternal Grandmother's Joinder Affidavit, she sets out the reasons why she sought to intervene in the proceedings. Those reasons include, but are not limited to, her prior role in Child A's life which she described as extensive[36] and the mother's refusal to support Child A communicating and spending time with the paternal grandmother unless Child A was in her father's care.[37] The paternal grandmother's evidence was that the mother would not even pass on presents or cards from the paternal grandmother to Child A.[38]
[36] Paternal Grandmother's Trial Affidavit [13] – [46].
[37] See Paternal Grandmother's Joinder Affidavit [15], [18] – [21]; Paternal Grandmother's Trial Affidavit [38].
[38] Paternal Grandmother's Joinder Affidavit [55]; Paternal Grandmother's Trial Affidavit [108] – [115].
71[In] February 2021, after a further contested hearing, the court made orders in terms of the paternal grandmother's interim application. The mother was again wholly unsuccessful in respect to her opposition to that application.[39]
[39] Paternal Grandmother's Submissions [9].
72The paternal grandmother filed her Contravention Application after the mother refused to make Child A available to spend time with the paternal grandmother on 3 June 2022 in Perth after having given the mother notice as early as 2 December 2021; I have detailed this earlier in these reasons. In the Paternal Grandmother's Contravention Affidavit, she further alleges the mother breached [the] February 2021 orders at least 15 times in respect to facilitating monthly and special day electronic communications;[40] these were not the subject of the Contravention Application.
[40] Paternal Grandmother's Contravention Affidavit [46].
73Given the orders arising from the contravention conference and the fact that the application was not relisted, I assume Child A spent time and communicated with the paternal grandmother in line with the agreement reached at the contravention conference.
74I pause to note the mother submits I should make no inference from the outcome of the conciliation conference.[41] I do not consider the assumption in the preceding paragraph to be an inference from the outcome, rather an inference made from the subsequent conduct noting the orders made by consent.
[41] Mother's Reply [6].
75Paragraph 27 of the Paternal Grandmother's Submissions outline why she elected to discontinue her application, which she asserts was for the following reasons:
(a)the mother's attitude to the Court Orders and her failure to comply with the same;
(b)the paternal grandmother's concern that regardless of any orders the court made the mother would not allow her to spend time or communicate with Child A; and
(c)the paternal grandmother's concern after the contravention conference that her involvement in the proceedings was negatively affecting Child A given the mother's attitude[.]
(As amended)
76The paternal grandmother's reasons are not inconsistent with the tenor of the concerns outlined by Psychologist C in her assessment. I otherwise observe the form 10 notice of discontinuance was filed approximately two months after the contravention conference.
Relevant law
77The court has a very broad discretion in costs matters.[42]
[42] Collins and Collins (1985) FLC 91-603, 79,877 (Evatt CJ, Pawley and Barblett SJJ).
78There are two primary matters for determination;
(a)whether there are circumstances that justify an order for costs; and if so
(b)what order for costs is just.
79Rule 335(1) of the Rules sets out the various orders the court can make, and is in terms below:
335.Method of calculating costs
(1)A court may order that a party is entitled to costs —
(a)of a specific amount; or
(b)as assessed on a particular basis (for example, lawyer and client, party and party or indemnity); or
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 2.
80It is not the law that a costs order can only be made in what has been described as "a clear case". Although a finding of justifying circumstances is an essential preliminary consideration to the making of a costs order, there is no additional or "special" onus on an applicant for an order for costs. An order for costs is made to compensate a party against expenses incurred in litigation and is not punitive in nature.[43]
[43] Stephens v Stephens and Anor (2010) 44 Fam LR 117 [67] (May, Boland and O'Ryan JJ).
81The general rule is that each party shall bear his or her own costs,[44] but that rule is expressed to be subject to s 117(2) of the Family Law Act 1975 (Cth) ("the Act") and must yield whenever the court finds that there are circumstances which justify the making of a costs order. If the court does much such a finding, it may, subject to sub-section (2A), make such orders as to costs as it considers just.
[44] Family Law Act 1975 (Cth) s 117(1).
82Subsection 117(2A) provides as follows:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
83It is unnecessary to spell out detailed reasons for decisions in costs matters.[45]
[45] [2015] FCWA 65; Greedy and Greedy (1982) FLC 91-250; Luadaka v Luadaka (1998) FLC 92-830.
84The weight to be given to the various factors referred to in s 117(2A) of the Act is a matter for the court. All the factors, however, must be considered and balanced when considering whether the overall circumstances justify the making of a costs order.[46] On the other hand, there is nothing to prevent any one of the factors being the sole foundation for an order for costs.
[46] I and I (No 2) (1995) FLC 92-625.
85A disparity in financial resources between parties to family law litigation can sometimes justify an order for costs in favour of the party with fewer financial resources.[47] At the same time, the apparent inability of a party to pay costs is not a bar to a costs order being made in circumstances where, for example, that party's conduct as a litigant warrant such an order.[48]
[47] Kelly and Kelly (No 2) (1981) FLC 91-108, 76,811 (Evatt CJ, Emery SJ and Nygh J).
[48] Braithwaite & Braithwaite [2007] FamCA 468 [106]–[107] (Kay, Warnick and Boland JJ).
86It is well settled that s 117(2A)(e) of the Act refers to a situation where proceedings as a whole have been unsuccessful, for example, where an application without merit has been dismissed.[49] An application is not wholly unsuccessful simply because a notice of discontinuance is filed; without being heard and determined, there has not been a full assessment of the application's merit.[50]
Indemnity costs
[49] Anison & Anison (2019) FLC 93-908 [37] (Kent J).
[50] Parke & The Estate of the Late A Parke (2016) FLC 93-748 [18] (May and Ryan JJ).
87It is well established 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."[51]
[51] Yunghanns & Ors v Yunghanns& Ors andYunghanns (2000) FLC 93-029 [30] quoting Kohan and Kohan (1993) FLC 92-340.
88In Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225, Sheppard J affirmed there should be some "special or unusual feature in the case to justify the court in departing from the ordinary practice."
89In Redmond & Redmond and Anor (Costs) [2014] FamCAFC 55, the Full Court cited with approval the following extract from the decision of Strickland J in Bele & Vaughan (Costs) [2012] FamCAFC 198:
27.The ordinary rule is that an order for costs is calculated on a party/party basis, and it emerges from the authorities… that to depart from that rule exceptional circumstances need to be demonstrated.
28.As to what might constitute an exceptional circumstance, reference can be made to the oft-cited decision of Sheppard J in Colgate-Palmolive Co & Another v Cussons Pty Ltd where his Honour detailed circumstances that might qualify. Usefully, Holden J in Munday v Bowman (1997) FLC 92-784 drew from the decision of Sheppard J the following examples:
(a)Where it appears that 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.
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.
(c)Evidence of particular misconduct causing loss of time to the court and to other parties.
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
(e)An imprudent refusal of an offer to compromise.
(Citations omitted)
90The approach described by Holden CJ in Munday v Bowman (1997) FLC 92-784 (relying, as it does, on Sheppard J's dicta in Colgate-Palmolive) remains good law.
91The party's conduct as a litigant is relevant to the issue of indemnity costs.[52]
[52] See Prantage & Prantage (2013) FLC 93-544.
92Notwithstanding the matters discussed above, "the categories of circumstances which enliven the discretion to award indemnity costs are not closed".[53]
[53] Yunghanns [31].
93However, the observation of the Full Court in Madin v Palis (2016) 55 Fam LR 59 [23] must be considered, where the Full Court stated that an application for indemnity costs should be made, and such costs only be ordered "in the most extreme cases".
94Therefore, the question that must be asked in these proceedings is whether the parties' respective conduct is such that would warrant an order for costs, and if so, should they be awarded on an indemnity basis.
Calculation of costs
95Part 19 division 5 of the Rules deals with the calculation of costs. The method of calculating costs is set out in r 335(1) which I have set out above at [79].
96The purpose in all rules of court enabling an order for costs in a specific amount without formal assessment or taxation is to "avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation".[54]
[54] Idoport Pty Ltd v National Australia Bank Ltd & Ors [2007] NSWSC 23 [9] (Einstein J).
97As Murphy J observed in Parke & The Estate of the Late A Parke (2016) FLC 93-748 [130] (citations omitted):
If the court is to fix a sum it should be "fixed broadly having regard to the information before the Court". The process does not "by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place".
98The court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any "scientific or formulaic manner".[55]
[55] Ibid [10] (Einstein J).
99Rule 331 of the Rules requires a party applying for indemnity costs to inform the court if the party is bound by a costs agreement, and the terms of any such agreement; the paternal grandmother has provided a copy of her costs agreement and schedule of costs incurred.[56]
Section 117(2A) factors
The financial circumstances of the mother and paternal grandmother
[56] Paternal Grandmother's Submissions annexures 4, 5.
100Neither the mother nor the paternal grandmother have filed form 13 financial statements in the proceedings.
101On her evidence, the paternal grandmother is semi-retired and works part-time [for] [Federal Agency B].[57] The paternal grandmother's husband works fulltime as [an officer] for Federal Agency B and part-time as an [analyst] and [recreational activity instructor].[58]
[57] Paternal Grandmother's Trial Affidavit [7].
[58] Mother's Submissions [20] citing [Mr Radley] Witness Affidavit (filed 24 May 2021).
102The mother is employed fulltime as [a consultant] with [State Agency A].[59] Her husband is a lawyer.[60]
[59] Mother's Updating Trial Affidavit (filed 18 January 2023) [5].
[60] See [Mr Hamel] Updating Witness Affidavit (filed 18 January 2023) pt C.
103The mother asserts that she has been placed under financial pressure because of the proceedings, which has been exacerbated by the paternal grandmother's involvement in them. I accept submissions made on behalf of the paternal grandmother that the mother has not provided any evidence to support her assertion in this regard.[61]
[61] Paternal Grandmother's Submissions [35].
104However, the court should accept as a general proposition that litigation is expensive, particularly where solicitors (and counsel) are retained, and parties are put to the expense of preparing documents for contested hearings, conferences, and trial. In this matter, I anticipate both the mother and paternal grandmother have experienced financial pressure associated with the litigation.
105I note there were two contested hearings involving the paternal grandmother, both of which the mother was wholly unsuccessful. The paternal grandmother did not seek costs against the mother in respect to those applications nor were costs agitated by either party in respect to the Contravention Application.
106I observe the paternal grandmother's concession that she does have some capacity to meet an order for costs if one is made against her.[62]
Receipt of legal aid
[62] Ibid [40].
107This is not a relevant consideration.
Conduct of the parties
108Both parties have made submissions in respect to how the court should treat the other party's conduct.
109The mother invites the court to draw an adverse inference against the paternal grandmother pursuant to the rule in Jones v Dunkel (1959) 101 CLR 298. She suggests the inferences arises from the paternal grandmother's failure to answer the mother's question as to when she became aware of the father's intention to relocate to State B.[63] The mother suggests that the inference to be drawn, is that the paternal grandmother's answer would not have assisted her case. The mother points to the possibility that the court may not have made the orders that it did [in] February 2021, for Child A to spend time with the paternal grandmother, if it had been appraised of that information.
[63] Mother's Submissions [31]–[36]. The mother further submits the paternal grandmother's knowledge on this issue and her failure to disclose it to the court and the mother is a "critical issue": Mother's Reply [22].
110In support of the submissions detailed above, the mother points to the close relationship between the paternal grandmother and father, and the paternal grandmother's failure to give evidence about the father's intention to relocate to State B in her trial material.
111The mother further relies on her submission that Child A experienced difficulties when spending one on one time with the paternal grandmother and that the paternal grandmother should have acted on the recommendations of Psychologist B.[64]
[64] Mother's Submissions [37]–[38].
112The court could only accept the latter submission if it accepted the foundation upon which Psychologist B's opinions were reached, and the mother's evidence as being factually correct, which I cannot. Such a submission ignores the possibility that Child A told the mother and Psychologist B things that were not truthful but were aligned with what Child A thought the mother wanted to hear.[65] Further, it ignores the probability that the mother was either unable or unwilling to view anything related to the paternal grandmother objectively, irrespective of what Child A said or did.
[65] See SEW Report 32.
113As the trial settled, the court did not need to make findings of fact or credit, which extends to the parties and the witnesses, including Psychologist B and Psychologist C. However, I have several issues with Psychologist B's involvement in these proceedings and her conduct more generally.
114It is astounding to me that a psychologist would:
(a)undertake clinical work with a young person in circumstances where they knew or ought to have known of ongoing Family Court proceedings and where the parent initiating the therapy did not, at that time, have sole parental responsibility for the young person; and
(b)not contact the other parent in an attempt to get a more holistic picture of what might be happening for that young person.
115Further, it is surprising that Psychologist B would write a report, having never met the other parent or observed the parent-child relationship, making recommendations that impact court orders.
116It is evident that Psychologist B did not think critically about Child A and the situation she found herself in. Psychologist B appears to have accepted the mother and Child A's narratives as factually correct and she did not turn her mind to issues such as parental influence or the impact on young children of being triangulated in parental conflict. This is particularly disappointing in circumstances where it was only the mother, or her allies, facilitating Child A's attendance upon Psychologist B.
117For present purposes, I reject any criticism offered by the mother against the paternal grandmother for her refusal to accept or act on any recommendations made by Psychologist B, given my concerns about Psychologist B's involvement generally.
118The mother further submits that the paternal grandmother's involvement in the proceedings was misconceived and the evidence the paternal grandmother sought to adduce lacked probative value.[66]
[66] Mother's Submissions [41].
119With the greatest of respect to the mother, the submissions filed on her behalf ignore one critical issue, which permeates the decision I am required to make: the mother's attitude towards the father and paternal grandmother's relationship with Child A, and whether that factor may have been a significant contributing factor to the necessity for the institution of proceedings in the first place, and to the prolonged nature of the litigation. Psychologist C's report lays bare the extent to which this concern was relevant to the court's determination. Whilst repetition rarely adds weight, I again observe Psychologist C's prediction that if the mother had sole parental responsibility for Child A, the likely outcome would be estrangement from her father and paternal family.
120The mother's belief that the paternal grandmother's application was "frivolous, vexatious, without any proper purpose"[67] is telling as to the mother's attitude towards the paternal grandmother and Child A's right to have a relationship with her.
[67] Paternal Grandmother's Submissions [8].
121Had the matter proceeded to trial, the issue of the mother's attitude towards the father and extended paternal family members would have been highly relevant to the court's consideration as to what was in Child A's best interests. As such, it is difficult to understand how evidence going to this issue could be characterised as lacking probative value.
122The mother submits many offers to compromise were put to the paternal grandmother, which she refused.[68] To accept the submission, the court would need to be satisfied that the mother's offers to compromise were reasonable, as she asserts. I am unable to find they were in fact reasonable, having regard to the opinions and recommendations proffered by Psychologist C, and the interim findings made by the court that it was in Child A's best interests to communicate and spend time with the paternal grandmother in her own right.
[68] Mother's Submissions [50].
123It is submitted on behalf of the paternal grandmother that it is the mother's understanding of the paternal grandmother's case that is misconceived.[69] It appears to be the mother's position that once the father moved to State B, Child A could spend time with the paternal grandmother during those periods Child A was spending time with the father.[70] The paternal grandmother submits that her position was clear: she was seeking to spend time with Child A on four occasions per year in Perth, at her own cost, and have a phone call with her once per month.[71] The court ultimately concluded, after a contested interim hearing, that the paternal grandmother's proposal was in Child A's best interests.
[69] Paternal Grandmother's Submissions [46].
[70] Mother's Submissions [28].
[71] Paternal Grandmother's Submissions [47].
124Pursuant to the legislation, the paternal grandmother was entitled to bring the applications she did in her own right and distinct from her son's. Both of her applications were wholly successful, on the basis the court determined it to be in Child A's best interests to maintain a relationship with her paternal grandmother in the manner sought by her.[72]
[72] The court rejected the mother's grounds for opposing joinder and found the paternal grandmother had standing pursuant to s 65C(ba) of the Family Law Act1975 (Cth): Transcript of Reasons for Decision, Magistrate Glass ([2019]) 5 – 6.
125Whether the father lived in City A or State B, the mother's position would have limited Child A's relationship with the paternal grandmother to one half of school holiday periods. Self-evidently, this meant Child A would have no communication or contact with her paternal grandmother during the school term, which on average, is a period of around 10 weeks, even if the paternal grandmother was available for calls or to travel to Perth to spend time with Child A.
126It is obvious from the mother's trial material she values the role of her parents and [Mr Hamel's] parents in Child A's life, however on the evidence, this does not extend to the paternal grandmother's role in Child A's life. The mother deposed to being concerned about Child A's ability to spend time with her family if the mother's time with Child A was reduced.[73] The mother appears not to have considered:
•the significant additional time she was having with Child A by virtue of Child A being in her sole care during the school term;
•the father's feelings about having his already limited time with Child A being further limited to carve out time for Child A to spend with the paternal grandmother;
•any time between Child A and the paternal grandmother would be contingent upon the mother making Child A available to communicate and spend time with the father, which was far from certain given the mother's negative attitude about him and the difficulties he deposed to experiencing in respect to maintaining his own relationship with Child A; and
•most importantly, the potential impact on Child A of being afforded such limited opportunities to maintain and further develop her relationship with her paternal grandmother.
[73] Mother's Trial Affidavit [154].
127The paternal grandmother submits the mother's conduct increased her own costs and the other parties' costs,[74] which I accept. The mother opposed two applications brought by the paternal grandmother, both of which she was wholly unsuccessful in opposing. I am not satisfied that even if the court was made aware of the father's relocation to State B, it would have impacted the orders made [in] February 2021, as the paternal grandmother's case was to spend time with Child A in Perth.
[74] Paternal Grandmother's Submissions [42].
128It is important for the court not to lose sight of the fact that costs are not just incurred in respect to the preparation of documents and attendance at a hearing. Lawyers properly should confer and negotiate to avoid applications being filed, which both parties' solicitors did in these proceedings, as is made clear from the mother's itemisation of costs. Regrettably for the mother, her position in respect to both applications brought by the grandmother was fixed and negotiations failed to resolve matters by consent. Whilst the costs spent on conferral may be money well spent if sensible agreement can be reached, it can increase cost significantly, particularly if a party is unwilling to be flexible, as was the mother.
129It is submitted on behalf of the paternal grandmother that the mother breached orders during the proceedings, which necessitated a Contravention Application being filed.[75] Whilst the details of the discussion at the Contravention Conference are confidential,[76] I can have regard to the orders pronounced by the Registrar and what transpired thereafter. In essence, the orders provided for:
(a)make-up time, with a caveat in respect to the mother using her best endeavours to encourage Child A to spend time with her paternal grandmother; and
(b)the Contravention Application to be dismissed without any orders as to costs if Child A spent time with the paternal grandmother in accordance with the makeup time order.
[75] Ibid [21]–[24].
[76] See Orders, Registrar French ([late] August 2022) recital (e).
130As the Contravention Application was dismissed, I infer that make-up time proceeded. I again observe the notice of discontinuance was filed a few months thereafter.
131The mother submits the paternal grandmother's discontinuance justifies a costs order being made against her.[77] The paternal grandmother submits there was a legitimate basis for the paternal grandmother discontinuing her application for the reasons set out above. There is no independent evidence to suggest the paternal grandmother's reasons for discontinuing her involvement in the proceedings are disingenuous. In fact, when one has regard to the mother's evidence and Psychologist C's report, it is arguable that the paternal grandmother's actions were entirely focused on Child A. Without a significant shift in perception, the mother was unlikely to support Child A's relationship with her paternal grandmother, particularly if it required any modicum of co-operation on the mother's part.
[77] Mother's Submissions [42]–[46] discussing Bant.
132In respect to the discontinuance, both parties have referred the court to Bant v Clayton (Costs) (2016) 56 Fam LR 31, which I have considered. I accept the submissions filed on behalf of the paternal grandmother that this matter can be distinguished from Bant for several reasons, including but not limited to:
(a)the paternal grandmother continued in the litigation after interim orders were made in her favour, as the court made a finding that it was in Child A's best interest to spend time with her in the terms sought by her;[78] and
(b)having regard to the facts of this case, and the evidence before the court, the paternal grandmother's reasons for discontinuing are both plausible and reasonable and not tied to the father's relocation to [City B in State B].[79]
[78] Paternal Grandmother's Submissions [55(c)].
[79] Ibid [55(d)–(e)].
133I decline to draw an adverse inference as invited by the mother. The rule in Jones v Dunkel is complex, and unless the appropriate circumstances are present, the court should not be tempted to draw such an inference.
134I do not consider it appropriate to draw such an inference against the paternal grandmother for the following reasons:
(a)the matter did not proceed to trial, and as such, credibility findings cannot be made; and
(b)I accept the plausibility of the reasons proffered in the paternal grandmother's written submissions as to why she did not answer the mother's query, namely that in her opinion, her knowledge of the father's relocation to City B was irrelevant in the context of the case, having regard to the orders sought by her,[80] and that her reason for discontinuing was founded on her perception of the mother's conduct[81] coupled with the impact the proceedings were having on Child A.
[80] The paternal grandmother sought to spend time with Child A in Perth and regular phone calls, both of which required the mother's cooperation.
[81] This perception is largely supported by Psychologist C's assessment.
135Finally, it cannot be said the applicant was wholly unsuccessful because the evidence was not heard, and the issues not judicially determined.[82]
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
[82] Bant; Parke.
136The paternal grandmother asserts that the mother repeatedly breached the orders made [in] February 2021, which became the focus of the Contravention Application filed by the paternal grandmother. As noted earlier in these reasons, discussions that take place in and arise from mediation style conferences, of which the contravention conference is one, are confidential. Whilst it may be open to me to draw certain inferences based on the Paternal Grandmother's Contravention Affidavit and the minute of consent orders reached at the conference; I do not consider it appropriate for me to do so. Accordingly, I have disregarded from the paternal grandmother's written submission, those paragraphs that relate to matters specifically arising from the contravention conference.
137However, I do have regard to [62] of the Paternal Grandmother's Submissions, which directs the court to [53] of the Paternal Grandmother's Contravention Affidavit, in which the paternal grandmother confirms her belief that the mother "will not comply with the Orders in the future if the Court does not deal with her contempt." The paternal grandmother's belief about the mother's attitude to Child A's relationship with her and vis-a-vis her attitude towards orders made [in] February 2021 predates the contravention conference taking place. I consider this submission relevant to the paternal grandmother's decision to discontinue her involvement and consider Psychologist C's report lends support to the paternal grandmother's concern and beliefs.
138A further submission was made by the paternal grandmother that the mother unilaterally elected to take Child A to Psychologist B to support her non‑compliance with orders.[83] The mother's reliance on Psychologist B's views feature in affidavits of herself and in her written submissions filed in support of her costs application. I have already provided my views about Psychologist B's role in the proceedings, which do not warrant repeating.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
[83] Paternal Grandmother's Submissions [58].
139The mother was wholly unsuccessful with respect to her opposing the paternal grandmother's application for joinder and for interim orders providing for Child A to spend time with her. However, the paternal grandmother elected not to pursue costs in respect of either of those applications.
140The mother concedes this consideration relates to cases where the application is heard and determined and the application is wholly unsuccessful,[84] which is not relevant in this matter.
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
[84] Mother's Submissions [49].
141Both parties depose to offers having been made by the other. I accept the submission made by the paternal grandmother that offers should be considered having regard to the context in which they were made.[85]
[85] Paternal Grandmother's Submissions [67].
142In respect to the offers made by the mother, an offer made on 11 November 2019 predates the paternal grandmother's successful application to seek her own orders to spend time with Child A.
143An offer made on 9 November 2021, post-dates the court finding it was in Child A's best interests to spend time with her paternal grandmother in line with the orders sought by the paternal grandmother, which was for time in Perth. As already commented on, the only person who could facilitate that time was the mother, as the father was residing in City A and State B. As that was the case, it was irrelevant where the father was living.
144An offer made on 1 August 2022 post-dates the Contravention Application but predates the contravention conference which resulted in an agreement being reached for Child A to spend time with the paternal grandmother.
145The offer made on 28 October 2022 post-dates the filing of the paternal grandmother's form 10 notice of discontinuance.
146On 25 March 2021, the paternal grandmother made an offer which proposed orders largely in the same terms of the [orders made in] February 2021, which the mother rejected.
147In respect to the Mother's Application, the Paternal Grandmother's Submissions refer to the following offers made by the grandmother:
(a)on 16 December 2022, whereby the paternal grandmother's solicitors advised that if the mother did not discontinuance her Application, the paternal grandmother would seek indemnity costs in respect of the same. The paternal grandmother submits no response was received;[86] and
(b)on 10 February 2023, the paternal grandmother's solicitors wrote to the mother's solicitors, requesting the mother file a notice of discontinuance with respect to her cost application, which the mother subsequently advised she was not prepared to do.[87]
[86] Paternal Grandmother's Submissions [71], annexure 2.
[87] Ibid [72] –[73], annexures 2, 3.
148It is the paternal grandmother's submission that the mother should be ordered to pay the costs of and incidental to the Paternal Grandmother's Response, as the mother had wilfully refused to discontinue her cost application in circumstances where her application has no merit.[88]
Such other matters as the court considers relevant
[88] Ibid [74].
149The paternal grandmother's form 10 notice of discontinuance was filed under cover of letter filed 27 October 2022 in which the court was advised as follows:
In light of our client filing a Notice of Discontinuance, and our client no longer being a party to the proceedings:
1. She has not provided her available dates for trial, and therefore will not provide a response with respect to the 2 new fixed dates for trial;
2. She will not pay the setting down and hearing fee, in accordance with paragraph 21 of the Orders dated [in] March 2020; and
3. She will not make arrangements to pay the cost of the Single Expert Witness' fees in accordance with paragraph 12 of the Minute attached to the Orders dated [early] August 2022.
(As amended)
150The paternal grandmother submits the appointment of a SEW was not her suggestion, and she consented to Psychologist C's appointment with a view it may confine the issues in dispute.[89] I observe it was the father who first applied for the appointment of a SEW, with the mother subsequently filing and seeking the appointment of an alternate expert.
[89] Ibid [76].
151Psychologist C's assessment did not involve the paternal grandmother directly, but notwithstanding that, her report lends weight to the paternal grandmother's concern, both about the mother's attitude towards her, and the mother's ability to genuinely support Child A's relationship with the paternal grandmother in the absence of orders.
152The filing of a notice of discontinuance does not discharge orders in force, nor does it in and of itself abrogate obligations imposed on a party pursuant to an order.
153The orders for Psychologist C's appointment, which were consented to by the paternal grandmother, split Psychologist C's fee in equal thirds between the parties. As a result, Psychologist C re‑apportioned the paternal grandmother's third between the parties, which resulted in the mother incurring an additional expense of $2,083. There was no order made for the re-apportionment of Psychologist C's fees.
154Whilst an application for costs is not a child-related matter, and as such, Child A's best interests are not a consideration, I cannot ignore that these proceedings involve a little girl whose emotional and psychological wellbeing has been compromised by her parents' conflict. To the parent's credit, and with the assistance of Psychologist C's report, they were able to resolve the substantive proceedings by consent on the first day of trial. However, that agreement does not resolve the concerns raised in Psychologist C's report, and on that basis, I would suggest that there is a fragility to the agreement, although I sincerely hope that for Child A's sake, I am wrong.
155On the basis of the evidence the parties themselves rely on for the purpose of their respective cost applications and Psychologist C's report, I have concern about how my decision may impact on Child A, particularly, if the mother is unsuccessful, given the high level of dysfunction within Child A's family system globally and the mother's negative attitude about the paternal family, which self-evidently, is unlikely to be assisted if a costs order is made against her.
Conclusion
156Weighing up all the matters addressed above, I consider the paternal grandmother should reimburse the mother for the additional cost associated with Psychologist C's report, fixed in the amount of $2,083.
157Whilst I accept the Paternal Grandmother's Submissions in respect to this issue, she consented to an order to meet one third of the costs associated with Psychologist C's assessment and an order was made to that effect; that order was not discharged or varied. As a result of the paternal grandmother's decision to discontinue, Psychologist C unilaterally re-apportioned the paternal grandmother's one third share to the parents, a decision over which the parents had no control. Psychologist C's re‑apportionment of her fees did not release the paternal grandmother from her court ordered liability to meet one-third of Psychologist C's costs, and I consider it appropriate she indemnify the mother in respect of that additional cost incurred.
158I note the same situation is true of the father who was also put to additional expense, but I have not been requested to consider that issue and make no further comment.
159I otherwise decline to make any further costs order in the mother's favour, as I consider the balance of her application to be objectively without merit, and in my view, it should not have been brought, let alone pressed. I accept the submission made on behalf of the paternal grandmother that the mother's costs were increased because of the mother's own conduct. In coming to this conclusion, I pause to reflect on the fact the paternal grandmother did not press for costs in respect to the two applications the mother unsuccessfully opposed. I consider those applications were likely to have cost both parties more than the $2,083 awarded to the mother to reimburse her in respect to the paternal grandmother's share of Psychologist C's assessment.
160Whilst I am empathetic to the paternal grandmother's application for indemnity costs, applying the legal principles distilled from the cases referred to above, I do not consider this to be a case which would warrant the ordering of costs on an indemnity basis. As noted above, I also have concern about the potential impact on Child A if such an order were to be made, given the high level of conflict and distrust within her family system, and the importance of ensuring that external events do not create pressure on the sensible agreement reached between the parents at the trial in the substantive proceedings.
161Given my view about the merit of the Mother's Application and my consideration of the factors set out in s 117(2A), I am persuaded it is appropriate to exercise my discretion to make a costs order against the mother in respect of the costs dispute. Such costs are to be paid on a party-party basis fixed in the sum of $3,000.
162Taking into consideration the $2,083 to be paid to the mother, the net sum payable to the paternal grandmother is $917.
Orders
163I intend to make the following orders:
1.Within 14 days of the date of publication of these orders, the Respondent, Ms Hamel, pay to the former Second Respondent, Ms Radley, costs fixed in the sum of $917.
2.The Form 2 Application filed on 16 November 2022 and the Form 2A Response filed on 20 February 2023 be and are hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
MG
Associate
4 APRIL 2023
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