Lambert & Lambert
[2017] FCCA 349
•2 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAMBERT & LAMBERT | [2017] FCCA 349 |
| Catchwords: FAMILY LAW – Costs – Application for indemnity costs – discussion of principles – costs awarded. |
| Legislation: Family Law Act 1975, s.117 Federal Circuit Court Rules 2001, r.21.02 |
| Cases cited: Cochrane & Cochrane [2012] FMCAfam 984 Munday & Bowman (1997) FLC 92-784 Rice & Asplund (1979) FLC 90-725 Penfold & Penfold (1980) 144 CLR 311 |
| Applicant: | MR LAMBERT |
| Respondent: | MS LAMBERT |
| File Number: | PAC 2933 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 7 December 2016 |
| Date of Last Submission: | 7 December 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 2 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conte Mills |
| Solicitors for the Applicant: | APJ Law |
| Counsel for the Respondent: | Ms Judge |
| Solicitors for the Respondent: | Kevin Hockey & Associates |
ORDERS
The Response filed 15 July 2016 is dismissed.
The Respondent pay the Applicant’s costs in the amount of $4,400 within 42 days.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Lambert & Lambert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2933 of 2016
| MR LAMBERT |
Applicant
And
| MS LAMBERT |
Respondent
REASONS FOR JUDGMENT
Introduction
On 28 May 2015 with consent of the parties, the Court made final parenting orders with respect to the parties’ three children:
a)X, born on (omitted) 2002;
b)Y born on (omitted) 2003; and
c)Z born on (omitted) 2003.
(“Final Orders”)
Both Z and Y are to live with the mother pursuant to the Final Orders.
On 27 June 2016, the Mother filed an Initiating Application seeking a recovery order with respect to Z (“the Recovery Application”).
The Recovery Application first came before the Court in a busy duty list on 4 July 2016. For reasons which are explained below, the Recovery Application was adjourned and ultimately the issue of recovery was dealt with on 18 July 2016.
On 15 July 2016, the father filed a Response, seeking a variation of the Final Orders; in summary that Z live with the father and Y live with the mother.
The matter proceeded on the basis that there was a threshold issue for the Court to determine,[1] that threshold issue being whether the father’s Response filed 15 July 2016 is to be dismissed pursuant to the principles in Rice v Asplund.[2]
[1] See for example Miller & Harrington (2008) FLC 93-383 at [72] where the Full Court said that the rule in Rice and Asplund might be applied either at a preliminary stage or at another stage of parenting proceedings
[2] (1979) FLC 90-725
Ultimately, on 2 November 2016 the matter was allocated a hearing date in respect of the threshold issue and the wife’s costs application in respect of the Recovery Application was stood over to be determined at the same time.
Relevant Legal Principles
These are parenting proceedings which are to be determined by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings. However, given that there are already final orders in place in respect of the children, the Court is firstly concerned with whether it should entertain the application at all.
In Rice & Asplund[3] the Full Court said:
The principles which, in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied that…there is some changed circumstance which will justify such a serious step, some new factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing…
[3] (1979) FLC 90-725 at 78,905
The rule in Rice and Asplund is of long-standing, has been consistently recognised and applied both by the Full Court of the Family Court, the Family Court and this Court, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently[4]. It is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course.[5]
[4] Poisat & Poisat [2014] FamCAFC 128 at [8] and [13]
[5] SPS & PLS (2008) FLC 93-363 at [73]
The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation.[6]
[6] King & Finneran (2001) FLC 93-079 at [44] and [64]
Changed Circumstances
It was submitted on behalf of the father that:
a)the events which constitute a significant change of circumstances are that from February 2016, Z has expressed his view that he would like to live with the father and attend (omitted) school (omitted);
b)since the making of the consent orders, the father has relocated from (omitted) to (omitted);
c)Z refused to return to the mother’s home after the June long weekend because he wanted to live with the father and attend (omitted school); and
d)the views and preferences of Z are significant enough to mean that the existing orders are no longer viable or can no longer work.
The circumstances regarding Z were submitted to constitute a significant change within the meaning of the principle in Rice & Asplund.
Determination of the Rice & Asplund issue
The Final Orders provide as follows:
2. That except as otherwise stated, the Father and the Mother (Parents) have equal shared parental responsibility for the major long term issues for the Children.
6. That Y and Z spend time with or communicate with the Father as agreed between the Parents and failing agreement, then as follows:
1. with the Father each third weekend between 7pm and 8pm on a Friday until Sunday 3pm during term time;
2. every long weekend during term time between 7pm and 8pm on a Friday until before school on the following Tuesday;
3. with the Father, at his own election, every other weekend in (omitted) from after school on a Friday until before school on a Monday , with the Father to provide the Mother with 3 day's written notice of his intention to spend time with the Children, provided that the children spend at least one weekend a month with the Mother;
4. with the Father during a weekday in (omitted) upon the Father providing the Mother with 24 hours written notice from after school until the commencement of school the following day;
5. in the event either the Mother or Father have a special family occasion the parent whose family member is holding or is the reason for the function shall give the other parent at least 14 days written notice of a request for the children to attend the family occasion and the other parent shall use their best endeavours to make the children available, with the requesting parent to pay for any additional travelling costs for the children; and
6. for all other times, Y and Z live with the Mother in (omitted).
8. That Y and Z shall spend school holiday time with their Parents as agreed and failing agreement as follows:
1. with the Father for 10 days in each autumn, winter and spring holiday period;
2. with the Mother for the balance of the autumn, winter and spring holiday period;
3. for the first half of each summer school holiday period with the Mother in odd numbered years commencing 2015 and the second half of each summer school holiday period with the Father in odd numbered years;
4. for the first half of each summer school holiday period with the Father in even numbered years commencing 2016 and the second half of each summer school holiday period with the Mother in even numbered years; and
5. for the whole of the Christmas period with the Mother in odd numbered years and the Father in even numbered years and Z in relation to their holiday arrangements once they reach the age of 12 and their school preferences.
Also of importance to the current application are the notations made by the Court in the orders made on 28 May 2015. The relevant notation is as follows:
And the Court further notes that it is intended that the Parents will respect the mature wishes of Y and Z in relation to their holiday arrangements once they reach the age of 12 and their school preference. (emphasis in original)[7]
[7] It was submitted on behalf of the father at the hearing of the Recovery Application, in relation to this notation, that the parties had envisaged that schooling would become an issue between the parties.
Although the Final Orders were made by consent, the chronology of proceedings evident from the Court file shows that the orders were not entered into at the first available opportunity, but rather after numerous steps were taken in the proceedings, including the preparation and release of a Family Report dated 17 November 2014.
That Family Report provides as follows:
4.3 At interview, the mother confirmed her desire to relocate to (omitted) with the subject children…
4.4 In his Response, the father essentially sought equal shared parental responsibility, the twins to live with him and spend time with the mother each alternate weekend…
…
4.7 The father raised a further issue, that of continuing boarding for X and possible boarding for the twins in 2016 at his former college (omitted school)…
…
5.19… the issue of the children attending boarding school is one where there is no agreement between the parents, with the mother favouring the children living with her and attending local schools and the father wishing to pursue the possibility of boarding schools for all three subject children in future; subject to having necessary finances…
…
8.22 When interviewed individually, Z exhibited no overt anxiety. When asked about his school experiences, he reported positively… He then spontaneously said “in year seven I’m trying to get to (omitted school)”. When the Report Writer reflected on his saying that he was trying to get there, he said “because we have to apply to get a scholarship.” He then said that this would help with the costs of schooling.
8.30… when asked what he [Z] felt should happen with him if the mother relocated to (omitted), he said “I’d probably stay in (omitted) with dad.”
9.10 It is the Report Writer’s opinion that it is rarely appropriate for sibling groups to be split and in the case of the this family it is of significant importance given the security sourced by each sibling from the others and the sense of family engendered by the sibling group; particular (sic) given the likelihood that the children feel, to some extent, abandoned by the parental separation and the father’s early decision to enter into cohabitation, including attempts to create a blended family. During this report process the siblings were assessed as sharing strong and functional attachments with each other.
9.11…It is the Report Writer’s opinion that the children’s views… have not been adversely affected to any significant degree by either parent.
At the time of the Family Report interviews, the father was living in (omitted) with his then partner in the former matrimonial home of the parties.
The father in coming to the Final Orders took into account the views that were expressed by the children in the Family Report.
The children have not, by and large, been spending time with the father pursuant to the Final Orders. The father argued that the mother had not complied with the orders in that time did not always occur, however, no contravention application was ever filed and the matter was ultimately said not to be relevant to the determination of the threshold issue.
The father’s evidence is that since approximately February 2016, Z had expressed a view that he would like to live with the father and attend (omitted school).
Z spent time with the father over the June long weekend in 2016. Z did not return to live with the mother in accordance with the Final Orders, resulting in the mother making the Recovery Application.
On the first return date of the Recovery Application[8], the mother was represented by Counsel, however, there was no appearance by the father. On that day the Court was advised that Z had been returned to the mother on Saturday, 2 July 2016 and that he was due to spend time with the father pursuant to the Final Orders during the school holidays which were coming up.
[8] 4 July 2016
The mother’s Recovery Application was adjourned to Monday, 18 July 2016, which was the second last day of the relevant school holiday period. By that stage, the father had filed his Response.
Both the mother and father were represented on the adjourned date of the Recovery Application.
When the matter was called, the Court was advised that following the school holiday time with the father, both children had been due to be returned to the mother on Saturday, 16 July 2016. However, Y was returned on the Sunday and Z was not returned at all. As such, the Recovery Application was pressed. The Court heard submissions from both parties. Inter alia, it was submitted on behalf of the father that he had no difficulty in returning the child to the mother provided that the child had “a voice in these proceedings”.
The matter was stood in the list for a short period such as to allow the parties the opportunity of having some discussions, after the Court had indicated that it was minded to make a recovery order. It was ultimately agreed that Z would be returned to the mother at 12 noon on 19 July 2016 at (omitted). Furthermore, an order was made for the parties and the children to attend a Child Inclusive Child Dispute Conference with Mr W in (omitted) on 15 September 2016.
Both parents and all three children attended upon Mr W and ultimately a Memorandum dated 19 September 2016 was produced to the Court, which read:
11. … Although the children interacted with both parents during this event, Z appeared to spend the majority of his available time during this Conference with his father, while X and Y appeared to spend the majority of their available time with their mother.
…
14. Although Z described (omitted high school) as “good”, he said “I want to go to (omitted school) [Why’s that?] for better opportunities and better education”. He cited the fact that “my sister goes there”, X’s forthcoming school excursion to (omitted) in 2017, and the possibility of playing a variety of sports as reasons for this change. When asked about the prospect of living with his father, Z said this will be “good”. Z added that “I think [Y] wants to go to (omitted school) as well”. When asked how he would feel if Y didn’t go to (omitted school), Z said “I’d be a bit disappointed”.
15. Z was asked if he feels any pressure from either parent about his schooling arrangements, and he replied “Dad’s trying to support me to do what I want [What do you want to do?] I want to go to (omitted school)”. When asked how his mother feels about this, Z replied “I don’t’ think [Mum] likes the idea”.
16. If he was to go to (omitted school), Z said “I’d miss [Mum…but] we’d catch up…every two or three weeks, like Dad does now”. Z was asked how he would feel about leaving his current friends behind in (omitted), and he replied “I don’t know”. However, Z explained that “I’ve wanted to go to (omitted school) from when I was in Year 5 at (omitted school)”. He said that “lots of my friends from there were going to (omitted school)” as well, so he will already know some of the other students who will be in his year.
…
20. Z was asked if he would like to say anything to the Judge (through the family consultant) about his future schooling arrangements, and he replied that he would like to tell her that “I want to go to (omitted school), but if I don’t like it I would want to go back to [live in] (omitted)”.
…
22. Y was asked about the possibility of going to (omitted school), and he replied “I may like to go to (omitted school), but I’m not quite sure about right now. I was considering it but something’s happened…X always wanted us to come to (omitted school) but when Dad snapped she said not to come…she said just to stay [in (omitted)]”. Consequently, Y said “I’d feel safer to stay with Mum”.
…
25. In the event that he was to go to (omitted school), Y said “I’d prefer to be boarding [Why’s that?] Just because of the incident that happened”. Y said he is worried about his father’s reaction to his comments, adding “I’m not too keen on [going to (omitted) with Dad this weekend]…I saw the counsellor at school yesterday [Why was that?] I am really worried about going…I asked her if there was any chance of staying here this weekend…I really don’t want to go, and it’s not the first occasion I haven’t wanted to go…X [used to think] I was being selfish, but I think now she may understand why I haven’t wanted to go”.
26. Y was asked how he felt if Z went to (omitted school) and he didn’t, and he replied “Mum doesn’t want me and Z to be separated…It would make more sense if Z stayed here, because I feel the safest in (omitted)”. When asked what should happen if Z still wanted to go to (omitted school), Y replied “I’m not quite sure…Mum would probably let us go in Year 9 or Year 10”.
27. Later during interview however, Y reported that “Z’s been wanting to go to (omitted school) ever since he was little…I [used to think] Dad was influencing him and threatening him.. [but now I understand] he genuinely wants to go”. In the event that Z was to go to (omitted school) and he didn’t, Y said “I might miss him, but I think I’ll get over it”.
…
34. Neither party in this matter wishes to embark on another round of extended litigation in light of their previous proceedings in the Federal Circuit Court at Brisbane. However, at the conclusion of this Conference there was no agreement about the future schooling/living arrangements for Z (or Y).
35. Z himself indicated that he wants to go to (omitted school), although he added the significant caveat that “if I don’t like it I would want to go back to [live in] (omitted)”. With regard to whether Z is under pressure to express views that are consistent with those of his father, I consider that he probably is, although this is not necessarily any different from most children who internalise parental goals as their own, and who want to please their parents, and behave in ways that will make their parents proud of them.
36. If the question is whether Z is under pressure to express views that are contrary to his own, this does not appear to be the case. I note Y’s insightful assessment that, despite his concerns about Z living with their father, “Z’s been wanting to go to (omitted school) ever since he was little…I [used to think] Dad was influencing him and threatening him… [but now I understand] he genuinely wants to go”.
…
39. One issue that causes me some concern is Z’s caveat that “if I don’t like it I would want to go back to [live in] (omitted)”. Unfortunately, final orders simply don’t work like that, and given the genesis of the current dispute I am reluctant to recommend that Z’s views (as interpreted by his conflicted parents) should be the primary factor for determining his schooling arrangements. Mr Lambert expressed some concern about Z repeatedly changing his living arrangements back and forth between his parents, and I share this concern because such a pattern could obviously become very distressing for him.
40. One possibility to address this uncertainty might be to facilitate Z (but not Y) living with his father and attending (omitted school) for a period, say six to twelve months, and then reviewing the situation with a further Child Inclusive Conference towards the end of that period.
In light of all of the evidence, the Court finds that Z’s wish to live with the father and/or attend (omitted school) is not a changed circumstance. The wish to attend (omitted school) is a wish that Z had since he was very young, it is a wish that was expressed during the interviews for the purposes of the Family Report, and it is a wish that the father was aware of when he and the mother came to the agreement ultimately embodied in the Final Orders and provided for in the Notations to those Final Orders. Z’s wish to live with the father was also expressed during the Family Report interviews. Given the opinion of Mr W, the Court is not minded to place significant weight on Z’s wishes in any event.
The father does not seek an order that Z attend (omitted school). Rather, he seeks an order for a change of residence for only one of the children. Such an order would ultimately mean separation of the siblings, a matter which is against the opinion of the Family Report writer. The father did not place before the Court any expert or other relevant evidence as why this proposed separation would be in all of the children’s best interests.
Furthermore, concerning to the Court is what the father said to Mr W, namely, that he proposed for both of the boys to live with him. This was ultimately not reflected in the father’s application (i.e. Response) but it is open to the Court to infer from the Child Inclusive Conference Memorandum that this is the father’s ultimate intention given that the interviews with Mr W occurred after the filing of the Response. Whether this is so, is not a matter about which any findings are ultimately made.
The Final Orders provide for the children to live with the mother. The Final Orders contain a notation that the parties have agreed to respect the children’s wishes regarding their schooling. This does not mean that the parties are bound by the children’s wishes. There are mechanisms for consultation provided for in the Final Orders, and there are compulsory dispute resolution obligations under the Family Law Act 1975. Family dispute resolution in the context of this dispute about the most appropriate school for Z has not occurred. As such, the submissions made on behalf of the father that the existing orders are no longer viable or can no longer work because of Z’s wishes are also not supported by the evidence.
In relation to the submission that Z refused to return to the mother following the June long weekend, as this being a changed circumstance as such, such submission is not supported by the evidence for reasons explained below.
On 2 June 2016, the father sent to the mother an email which read:
Ms Lambert
In terms of the Children’s Orders, Z will be commencing at (omitted school) next term as per his mature wishes. (which you agreed to respect).
X remains free to make her choice (which she has done).
You were advised of this change by Z in January, February and during the school holidays.
You agreed to this change at every point along the way both to me and to Z. Z has advised a number of people of the changes specificly [sic] his grandparents. I have changed my accommodation to facilitate room. (which Z was involved in)
I look forward to your cooperation during the transition stage.
Mr Lambert
The mother responded saying she did not agree, and that the parties needed to talk further and make further enquiries.
To put things further in context, the parties were not in agreement even before the June long weekend that Z would attend an information day at (omitted school), which the father had booked for Tuesday, 14 June 2016, being a school day. The parties had some discussions about attending mediation in early June 2016, but no agreement about that process was reached.
Z and Y were due to commence spending time with the father on Friday, 10 June 2016. Only Z went with the father when he came to pick the twins up. The orders provide for time to conclude before school on Tuesday, although the mother says in her evidence that Z was due to be returned on Monday, 13 June 2016. In any event, the date of return was not an issue between the parties.
What occurred was that the mother was unable to drive to pick Z up at the conclusion of the time and the father refused to take on the burden of the drive himself. He did not avail himself of the opportunity of sending Z by bus as suggested by the mother, instead Z stayed with the father and missed out on three weeks of school. The issue of Z apparently becoming upset with the mother because of her refusal to agree to a change of school by the child half way through the year, was not mentioned by the father until some days after Z did not return to the mother.
Initially, the father’s response was to the effect of:
He will just have to wait til (sic) you can [drive]
… you said you could not pick up today. What about tomorrow or the next day?
…
Dear Ms Lambert it is unusual that a person cannot drive. You continue to not explain why however this does not make me magically able to get Z back. End of story. I have explained the situation. I accept that you don’t accept it but I cannot help that. I am doing the best I can and you remain doing nothing.[9]
[9] Text message sent by the father on Tuesday, 14 June 2016
It was not until Thursday, 16 June 2016 that the father says for the first time (while trying to find out when the mother will be able to drive to pick Z up):
Z is not prepared to go anywhere until you stop this nonsense (being a reference to the mother’s refusal to agree to Z changing schools to go to (omitted school)).
The solicitor will be in touch.
…
Z does not want to talk to you. He is upset at your actions and what he now sees as lies. I will try to get him to talk later to you.
The mother then invited the father to meet at (omitted) Police Station so that Z could be handed over. The father refused to do so.
There were further text messages between the parties, which show that both parents had different views about what Z wanted, but do not prove that Z was refusing to return to live with the mother. At most, on 15 and 16 June 2016, there is an assertion from the father that Z wanted to be ‘left alone’ and for the fight between his parents about his choice of schooling and living arrangements to cease.
The evidence shows that the child is caught up in the parental dispute. The evidence does not on the balance of probabilities, support the finding that Z refused to return to live with the mother[10].
[10] Rather it would support a finding that the father refused to return Z until the issue of Z’s schooling could be resolved to the father’s satisfaction. However, it is not necessary for the Court to make such a finding in order to resolve the threshold issue.
Apart from what was contained in the Case Outline document, the submission that the changed circumstances involved the father moving to (omitted), was not developed further at hearing, and does not of itself or in addition to any other matter, warrant a reopening of the parenting issue.
The Rice & Asplund issue is determined at a preliminary stage in the proceedings. While the issue is determined on untested evidence, this is so because the parties did not require any witnesses for cross-examination.
The Court finds that there are no changed circumstances warranting the reopening of the parenting issues. In weighing up the benefits to the children of allowing the matter to be contested in a fresh hearing against the detriment of their being again involved in the stresses of litigation, the Court finds that on balance the best interests of the children are served by the father’s Response being dismissed.
Costs
The mother seeks the costs of the Recovery Application in the amount of $5742.00, same being a claim for indemnity costs.
The starting position with respect to costs, as set out in s117 of the Family Law Act 1975 (Cth), is that, subject to subsection 117(2), each party to proceedings under the Family Law Act 1975 shall bear his or her own costs.
The discretion to award costs is a broad discretion.[11]
[11] see for example Collins & Collins (1985) FLC 91-603.
The High Court held in Penfold & Penfold[12] that it is necessary for the Court to make a finding of justifying circumstances as an essential preliminary to the making of an order for costs. The Court is not required to specify the circumstances which justify the making of such an order.
[12] (1980) 144 CLR 311
As long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the Applicant needs to establish for an order for costs. It is not the law that a costs order can only be made in what has been described as a ‘clear case’. [13]
[13] See in general the comments made by the Full Court in Wrenstead & Eades [2016] FamCAFC 46 and in particular where the Full Court approved the comments of the judge below at [103]
In Latoudis v Casey[14] the High Court stated as follows:
… in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of an unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.”[15]
[14] (1990) 170 CLR 534
[15] Referred to in the context of family law proceedings by Judge Kemp in Cochrane & Cochrane [2012] FMCAfam 984 at [17]
In determining what order, if any, should be made under s117(2) the Court must have regard to the prescriptive but non-exhaustive list of considerations in sub-section (2A).
Rule 21.02(2) Federal Circuit Court Rules2001 provides that in making an order for costs the Court may set the amount of costs; or set the method by which the costs are to be calculated; or refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules.
Section 117(2A) of the Family Law Act 1975 provides the factors that the Court in ordering what costs, if any, should have regard to.
All relevant matters referred to in s117(2A) must be taken into account: Re David Costs[16].
[16] (1998) FLC 92-809. See also Braithwaite & Braithwaite [2007] FamCA 468 at [115]
In Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor[17], the Full Court held that there is nothing to prevent any one factor being the sole determinate for an order of costs to be made.
[17] (2005) 33 Fam LR 123
There is nothing in the Family LawAct 1975 which inhibits the making of an order for indemnity costs.[18] However, an order for costs itself is a great departure from the normal standard.[19]
[18] See Prantage & Prantage (2013) FLC 93-544
[19] See Kohan & Kohan (1993) FLC 92-340.
The passage of Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd[20] stating the position with regards to indemnity costs is well known:
… there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice [of party/party costs]. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at p 8) in Tetijo, “the categories in which the discretion may be exercised are not closed”.
[20] (1993) 46 FCR 225
The courts have identified a number of circumstances where an order for indemnity costs may be warranted, those being for example:
a)Where proceedings were commenced or continued where a party should have known that it had no chance of success;
b)Where there are false allegations of fraud;
c)Where there has been particular misconduct by a party causing loss of time to the court and to the other party; or
d)An imprudent refusal of an offer of compromise.
The above principles are of course, applicable to matters decided under the Family Law Act 1975[21], and have been applied by this Court, the Family Court and the Full Court of the Family Court in appropriate instances.
[21] Eg. Munday & Bowman (1997) FLC 92-784
The mother is reliant on a Disability Support Pension, while the father is employed. His evidence in relation to the payment of school fees for the children at (omitted school) is such that the Court infers he has the financial capacity to meet the costs order sought by the mother.
The Recovery Application was ultimately determined by the parties’ agreement for the child to be returned to live with the mother. That agreement having been reached after the hearing of the Recovery Application commenced on 18 July 2016. The father was wholly unsuccessful in relation to his opposition to the Recovery Application.
The mother had sought to resolve the issue of Z’s return without recourse to litigation through correspondence with the father’s legal representatives.
The father was aware of the terms of the Final Orders and unilaterally sought to impose a parenting arrangement that was different to those Orders, despite the mother’s protests to such occurring and in light of the mother’s protests to such occurring.
In all of the circumstances, an order that the father pay the mother’s costs is an appropriate order. However, there are no exceptional circumstances justifying an order for indemnity costs. Not all of the costs of the Recovery Application have been thrown away, for example, the mother has relied upon her affidavit filed in support of the Recovery Application at the hearing of the threshold issue.
If costs were to be assessed pursuant to the Schedule 1 of the Federal Circuit Court Rules 2001, then the total amount of scale fees is as follows:
a)Item 2: $2,704 + $294[22] = $2,998
b)Item 3: $1,801 + $1,081[23] = $2,882
Total: $5,880
This would in fact be a greater amount than the costs actually incurred by the mother.
[22] Mention on 4 July 2016
[23] Hearing on 18 July 2016
As such, the Court assesses the costs thrown away by the mother in having to bring the Recovery Application where the father ultimately consented to the orders sought by the mother, at $4,400 with such costs to be paid by the father within 42 days. This is an order that is appropriate in all of the circumstances.
Conclusion
The interests of the children in not being the subject of further litigation is more powerfully in their welfare than to allow the application to continue. As such, the father’s application for a variation of the Final Orders is dismissed.
Likewise, an order for the father to pay the mother’s costs in the amount of $4400 within 42 days is appropriate, in all of the circumstances.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 2 March 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
-
Remedies
-
Procedural Fairness
0
7
3