LILWALL & JOPSON (No.2)

[2017] FCCA 103

FEDERAL CIRCUIT COURT OF AUSTRALIA

LILWALL & JOPSON (No.2) [2017] FCCA 103

Catchwords:

FAMILY LAW – Costs – costs application – three interim applications by the mother – mother wholly unsuccessful – time wasting submissions which were inconsistent with the evidence – consideration of financial circumstances – mother ordered to pay father’s costs.

Legislation:

Family Law Act 1975, s.117 (2A)

Cases cited:

Collins and Collins (1985) FLC 91-603
Penfold v Penfold (1980) FLC 90-800

Applicant: MR LILWALL

Respondent: MS JOPSON

File Number: CSC 243 of 2016

Judgment of: Judge Willis

Hearing date: 13 October 2016

Date of Last Submission: 14 November 2016

Delivered at: Cairns

Delivered on: 24 January 2017

REPRESENTATION

Solicitors for the Applicant: Newman Family Law

Counsel for the Respondent: Mr Johnston

Solicitors for the Respondent: Tiyce & Lawyers

Solicitors for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

1. The mother is to pay the father’s costs of and associated with the interim applications filed by the mother on 4 October 2016 in the sum of $5,044.00. Such sum is to be paid to the father care of his solicitor, by no later than 24 June 2017.

2. The Independent Children’s Lawyers costs remain reserved pursuant to orders of 13 October 2016.

IT IS NOTED that publication of this judgment under the pseudonym Lilwall & Jopson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 243 of 2016

MR LILWALL

Applicant

And

MS JOPSON

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the father who was a respondent to an Application in a Case filed on 4 October 2016 by the mother.[1]   The mother opposes the application and asks that the application be dismissed and that each party pay their own costs.

   [1] He is the applicant in the substantive proceedings.

2. The application was for leave for short service, that the matter be listed prior to 14 October 2016, a stay of the orders of parenting Orders made on 1 September 2016, that I recuse myself from further hearing of this matter, that the matter be transferred to the Family Court of Australia and that the father pay the mother’s costs of the application and finally that the costs be awarded on an indemnity basis.

3. Although the matter was listed for mention only on 13 October 2016 and served on the day before, at the request of Counsel for the mother and with the co-operation and agreement of the father’s lawyer, the ICL and the Court accommodating the matter I heard and determined the matter on 13 October 2016.

4. At the conclusion of the daylong hearing, the following orders were made:

   1. That the matter is to proceed on an urgent basis.

   2. That Order 2 (application for recusal) of the Application in a Case filed by the Mother on 4 October 2016 is dismissed.

   3. That Order 3 (application to transfer to the Family Court of Australia) of the Application in a Case filed by the Mother on 4 October 2016 is declined however, it will be reconsidered after the release of the expert reports.

   4. That Order 4 (application for stay) of the Application in a Case filed by the Mother on 4 October 2016 is dismissed.

   5. That the Application in a Case filed by the Mother on 6 October 2016 (for a Judge other than Judge Willis to hear the stay) is dismissed.

   Costs

   6. NOTING THAT the Father makes an application for costs of and incidental to today’s proceedings;

   a. The Father is to file and serve written submissions, a minute of orders sought (including reference to the relevant scale), a financial statement and any affidavit relating to the issue of costs within 14 days of the date of this Order.

   b. The Mother is to file and serve submissions in reply, a minute of orders sought (including reference to the relevant scale), a financial statement and any affidavit relating to the issue of costs within 14 days of being served with the Father’s submissions.

   7. The Independent Children’s Lawyer’s costs are reserved.

   BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER:

   8. That Orders 4 (b), 4 (c), 4 (d) and 4 (e) made on 1 September 2016 be varied to provide that changeovers occur at the café opposite the local hotel at (omitted).

   9. That Order 4 (b) of the said Orders be varied by deleting the dates 4, 5 and 6 November 2016 and substituting 11, 12 and 13 November 2016. 

   10. That the mother shall deliver the child X born (omitted) 2014 to the paternal Grandmother at 9:00 am on 22 December 2016.

5. The parties have requested and I have agreed that I delay determining the costs application until the outcome of the mother’s pending appeal in relation to the Orders made on 13 October 2016 and the Orders of 1 September 2016 was known. The reasons of Justice Murphy were released on 9 December 2016. Both appeals of the mother were dismissed.

6. The father is seeking an order for costs fixed in the sum of $5,044.00 pursuant to the Federal Circuit Court scale. The mother asks that each party pay their own costs. I have had regard to the father’s case outline, affidavit and financial statement filed on 27 October 2016 and the case outline, affidavit and financial statement of the mother filed on 11 November and 14 November 2016 respectively. The Independent Children’s Lawyer has not filed any submissions but has asked that his costs be reserved.

7. For the purposes of these reasons, I rely on but do not repeat all of my reasons for judgment of 13 October 2016.

The Law

1. Section 117(2) of the Family Law Act 1975 is the relevant section. It provides essentially for each party to pay their own costs. S. 117(2) provides that the Court can make an order for costs, and when considering whether to do so, the Court is required to consider certain matters set out in s 117 (2A) together with any other relevant matter.

2. In Collins and Collins (1985) FLC 91-603 at page 79,877 the Full Court said:

   “In deciding whether the circumstances justify an order for costs, there is a broad discretion to be exercised, having regard to the factors set out in subs. (2A) so far as relevant.  Those factors…. are not to be read in a restrictive way, however, the discretion remaining is a broad one:  Penfold v Penfold (1980) FLC 90-800 at pp 75,053-75,054 (High Court); quoted in Mallet v Mallet (1984) FLC 91-507 at pp 79,123-79, 124 (by Wilson J).”

3. In Penfold and Penfold (supra), the High Court overturned a decision of the Full Court of the Family Court who upheld an appeal against the trial judge’s decision to order that the husband pay the wife’s costs in relation to a maintenance application.  Importantly the whole of the High Court (who unanimously overturned the Full Court’s decision)  held that:

   (a) The general rule expressed by section 117 (1) that each party should bear his own costs, is not paramount to section 117(2) and must yield whenever a judge finds a particular case where there are circumstances justifying the making of an order for costs.

   (b)  Apart from the requirement that the judge must find that there are circumstances justifying a costs order, there is nothing in section 117(a) or (32) which imposes any additional or special onus on an applicant for costs.  It is not correct to say that an order for costs can only be made in a clear case.

4. Justice Murphy of the High Court also added:  “Presentation of a false statement of financial circumstances which puts the other party to the trouble and expense of disproving it, is a circumstance which justifies an order for costs. Courts should regard such circumstances which tend to undermine the integrity of proceedings with great concern, and should do everything in their power to determine who is responsible in order maintain that integrity.”

5. Turning to the considerations under section 117(2):

(a) The financial circumstances of each of the parties

1. The father is employed as a contractor (occupation omitted) on an annual income of approximately $156,000.00. He has no home or other significant assets. He has car repayments and another loan and is using up his weekly income through the cost of his ongoing legal fees which he is paying through a payment plan to his lawyers. Whilst he lists his income at $3,000.00 per week, his deductions for income tax, superannuation and child support of $155.50 per week, mean he has regular deduction of $1,998.50 from his salary. Added to that are his own living expenses.  From the balance $1,001.15, the father has to pay the expenses set out at section ‘N’ of his financial statement.  Those items total $3,062.50 which includes $2,000.00 being his own rent and repayment of legal fees. As can be seen from these figures, the father is actually spending more than he is earning given his legal fees.

2. The mother is not in paid employment and is currently in receipt of Centrelink of $345.00 per week, Family Allowance of $151.00 per week and $71.95 is received as Child Support – a total of $567.00. The father works on a roster as a (occupation omitted), working two weeks on and one week off. For the week that he is off, he does not get paid. He is also not paid for the days he takes leave to attend court.

3. The mother has significant assets as she owns an unencumbered home which the mother estimates is worth $210,000.00. The mother does not have the expense of rent or a mortgage. The mother has listed a loan from her parents including a personal loan from her father in the sum of $105,000.00 for the purposes of paying for her legal proceedings.  I am unaware how much of that sum has been expended. The mother has a car, horses and pays $18.00 per week on a no interest loan scheme. 

(b) Whether either party is in receipt of Legal Aid

1. Neither party to the proceedings is in receipt of Legal Aid.  The father has been privately represented in the proceedings as has the mother.

(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, direction to answer questions, admissions of facts, production of documents and similar matters.

1. The parenting Orders under appeal were made on 1 September 2016.  The appeal was filed on 27 October 2016, the day prior to the expiration of 28 days to appeal.

2. The Application in a Case for a stay of the Orders was filed on 4 October 2016 but not served until the 12 October 2016, with Counsel for the mother saying that sealed copies were not returned to them until that day.  The father’s time, pursuant to the Orders of 1 September 2016 (only happens once a month) was ordered to commence on Friday 14 October 2016, the day after the mention.  

3. The mother’s Counsel advised the Court on arrival on 13 October 2016 that the matter was listed for hearing today and that is why he and his solicitor were flown up to Cairns and they wished all of the applications to be heard.  That advice was entirely inaccurate. As I said on the day, the matter was listed for mention only and a solicitor for the mother phoned the court the afternoon before to request that the matter be listed for the afternoon to enable Counsel to attend.  That solicitor was advised that the matter was for mention only, and the solicitor responded that in that case, he would appear by phone.

4. There were various arguments of Mr Johnson of Counsel put forth on behalf of the father that were time wasting. This was on a day that the matter was not even listed and that other matters were waiting to be heard.  Submissions were made to the effect that his client did not get the interim contested hearing that she sought. Mr Johnson wrongly submitted that his client had never consented to Orders for unsupervised time and that she wanted a contested hearing.  These submissions occupied much of the time taken by Counsel for the mother. As I set out in my reasons for dismissing the mother’s application, this entire argument ignores what the transcript clearly shows actually happened at the hearing which was that the mother agreed through her solicitor that there was no longer a need for supervision. These submissions were time wasting and inaccurate. As set out in my reasons for judgment of 13 October 2016 at paragraph 112 in part;

   “…The application for appeal reads as though there has been a fully contested hearing including about supervision and that the judge hearing it has not gone through the legislative pathway. That was not the case. The appeal grounds do not make any acknowledgment of the fact that the mother has been legally represented throughout the hearing and that the Court has been told that the parties have agreement as to no supervision and agreement about the first tranche of time, but minor disagreement about the increase of time (a matter of hours) on some of the other tranches of time….”

5. Another argument by Counsel for the mother included that the mother didn’t understand things “like the rest of us” which was entirely without foundation. Counsel for the mother quoted random pieces of the transcript during the hearing without having regard to the whole of the transcript. This was also time wasting and lead to submissions being made that placed an inaccurate slant on what the true position was. There was further time wasted on the submissions made about the application to transfer the matter to the family court as it was “complex because it involved mental health issues.” This submission was completely at odds with the complexity of the work undertaken in the Federal Circuit Court day in day out and with the knowledge that many matters in the Federal Circuit Court involve one or both parties having mental health issues. Further, it was too early in the proceedings to be satisfied any final hearing would be longer than 5 days. These submissions were time wasting.

6. Generally I am satisfied that much of the time taken by the mother’s arguments during the 13 October 2016 took up unnecessary time of the Court and lead to a waste of this Court’s valuable time.

(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. The proceedings initiated in this matter were not initiated due to the failure of either party to comply with an order. 

(e) Whether any part to the proceedings has been wholly unsuccessful in the proceedings

1. The mother in this matter was wholly unsuccessful in each of the Orders for recusal, transfer and a stay of the Orders and costs sought in the Application in a Case filed on 4 October 2016.

(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

1. There have been no formal offers in writing to settle the matter. The mother however was placed on notice by way of letter from the solicitor for the father dated 27 September 2016 that an order for costs would be sought should the Application in a Case filed on 4 October 2016 proceed.

(g) Such other matters as the Court considers relevant

Discussion

1. I have had regard to the financial circumstances of each of the parties.  The mother portrays herself as being in difficult financial circumstances however she owns a home and therefore lives rent free.  She has a regular income and healthy child support.  The father earns a greater income though he does not have significant assets, he works on a two week on one week off roster, he does significant driving to spend time with his child, he pays his child support and his expenses exceed his income.  His expenses include repayment of a loan for legal fees. The mother has chosen to spend fees on flying to Cairns her Sydney lawyer and Counsel when they were given leave to appear by phone. The matter was clearly listed for mention only, and had the solicitor for the father and the ICL and the Court not been so accommodating, that money would have been entirely wasted given the matter was to be mentioned.   It is a matter for the mother as to how she spends her legal fees and it is a matter for herself and her parents as to the repayment of any loan from them, and as to when and if it is ever to be repaid. I do not consider that the mother’s financial circumstances are reason for her to avoid a costs order.

2. The mother has been wholly unsuccessful.  Her arguments that she did not agree to unsupervised time and that this was not by consent and her lawyer did not have the opportunity to speak, and that the mother did not understand what was going on “like the rest of us” were entirely without foundation and time wasting. 

3. The father is working hard to earn his income and he is doing the bulk of the significant driving to spend time with the child, all at his own cost.

4. The father is seeking costs pursuant to the Federal Circuit Court Scale fixed in the sum of $5,044.00. The father will have paid significantly more than the amount provided for in the scale to his solicitor. In addition he has had to pay for his solicitor to prepare a further affidavit as to his financial circumstances and submissions, which could have been done on the day of the hearing, however, the mother’s lawyers requested to leave to catch their plane and thus the costs were dealt with by making an order for submissions and other documents to be filed. The father has not claimed an amount to cover the costs associated with the preparation of his affidavit, statement of financial circumstances and submissions.

5. In all of the circumstances I am satisfied that it is appropriate to make an order for mother to pay the father’s costs of and associated with the interim application filed by the mother on 4 October 2016 in the sum of $5,044.00. Such sum to be paid to the father care of his solicitor, by no later than 24 June 2017.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date:  24 January 2017