Liske and Ainscomb (No 2)

[2012] FamCA 952

FAMILY COURT OF AUSTRALIA

LISKE & AINSCOMB (NO. 2) [2012] FamCA 952

FAMILY LAW – COSTS – Where the mother made an application seeking payment of legal costs incurred in parenting proceedings – Where father removed three month old baby from its mother and refused to return her – Where child not at risk - Whether the circumstances justify the making of a costs order – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the circumstances justify the making of a costs order in favour of the mother – Orders that the father pay the mother’s costs on an indemnity basis up to an including the first court appearance and thereafter on a party/party basis up to the next court date including the taking of judgment and payment of her application for costs on a party/party basis as agreed or assessed.

Family Law Act 1975 (Cth) ss: 117(1); 117(2); 117AA; 118; 117(2A)

Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225
In the marriage of Munday & Bowman (1997) FLC 92-784
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT: Ms Liske

RESPONDENT: Mr Ainscomb

FILE NUMBER: SYC 4337 of 2012

DATE DELIVERED: 19 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: By way of written submissions received 28 September, 31 October and 5 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies

SOLICITOR FOR THE APPLICANT: York Family Law

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Holding Redlich

Orders

1. That the father pays the mother’s costs of her application filed 23 July 2012 as follows:

   (a)up to and including the appearance on 23 July 2012 on an indemnity basis;

   (b)from 24 July 2012 up to and including the appearance on 27 July 2012 and taking judgment on 31 July 2012 on a party/party basis; and

   (c)her application for costs in relation to the above application on a party/party basis.

2. That the father pay the costs referred to above as agreed or failing agreement, within twenty eight (28) days of assessment.

3. The Court certifies for counsel on 27 July 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Liske & Ainscomb (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4337 of 2012

Ms Liske

Applicant

And

Mr Ainscomb

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Ms Liske  (“the mother”) that Mr Ainscomb (“the father”) pays legal costs which she incurred in parenting proceedings commenced on 23 July 2012. 

2. The proceedings related to the parties’ baby daughter who, on 20 July 2012, was surreptitiously removed from the mother by the father.  The parties had separated well prior to the baby’s birth and from birth she lived in Sydney with the mother.  When the father took the baby he returned to Melbourne where he lives.

3. After the mother realised what the father had done, even with police assistance, she was unable to persuade him to return their baby who was still breastfed.  Thus, she sought urgent orders, including for a recovery order. 

4. The mother was successful in securing an order that the baby be returned to her, which occurred the same day as orders were made.  Because of concerns raised by the father about the mother’s mental health, provision was made for short term supervision which would last until a further interim hearing.

5. On the adjourned hearing date the father proposed that the child live with the mother, abandoned his argument in favour of supervision and sought overnight time with the child (unsupervised).  For her part, the mother proposed that the child spend time with the father three days per week for seven hours on each occasion, supervised and that his wife not participate. 

6. In the event, interim orders were made which provided that the father has less time with the baby than proposed by the mother which is to be supervised.  He was restrained from including his wife in his time with the baby.

7. Otherwise the background facts of this case are detailed in my reasons for decision delivered 31 July 2012.

The applicable law

1. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is the relevant provision concerning costs and provides the general rule that subject to s 117(2), s 117AA and s 118 each party to proceedings under the Act shall bear his or her own costs. If there are circumstances that justify it in so doing, the Court may make an order for costs pursuant to s 117(2) as the Court considers just.

2. It is submitted on the mother’s behalf:

   … that given the orders that were made by the Court, the position of the father at each of the interim hearings, the opposition of the father to return the child to the mother’s care including before proceedings were commenced, the relative financial positions of the parties and the mother’s proposal at Court on 24 July 2012 [in] the circumstances of this case justify departure from the position that each party pay their own costs.

3. It is submitted on the father’s behalf that his actions were motivated by his concern that the mother posed a risk to the baby’s physical and emotional safety.  It is argued that the proceedings were necessitated by the mother “continuing to express suicidal thoughts following [the child’s] birth as outlined in paragraphs 66 to 69 of [the father’s] affidavit filed 24 July 2012”.  It is conceded that his application to retain the child failed and, by order dated 24 July 2012, the child returned to the mother.  It is argued, however, that the mother was not wholly successful because “… an order was made that [the child’s] time with [the mother] be supervised by the [Child Care Agency F] pending further order”.

4. At the adjourned hearing, the father highlighted the mother’s “history of self harm and suicidal ideation”.  Reference is made to paragraphs 6, 7 and 9 of my reasons for decision.  In those paragraphs two particularly serious incidents (which predate the child’s birth) were discussed.  It would appear that reference to these paragraphs is made to bolster the father’s argument that he had reason to be concerned for the child in the mother’s care and, notwithstanding his lack of success on each occasion the matter came before the Court, there are no circumstances which would justify an order for costs.

5. Excluding the relative financial positions of the parties, the matters relied upon by the mother and summarised at paragraph 9 of these reasons amount to justifying circumstances.  As will be apparent from my reasons delivered 31 July 2012 all that occurred was that the mother and child had been physically unwell, she asked that the father help.  This he did willingly but, without the mother’s consent, kept the baby. 

6. In relation to the initial order for supervision, as the transcript of that hearing would reveal, this was ordered in circumstances where serious allegations were made by the father.  Supervision was ordered for three days and, following production of documents under subpoena and further evidence, even the father conceded that supervision was unnecessary.  In this regard, paragraphs 39 to 43 of my reasons are apt.  These are set out below:

   39.There is no doubt that since at least May 2011, the mother has been distressed in her relationship with the father and anxious and worried about what she perceives is his attitude towards her.  With the impending birth of their baby, these stresses escalated to such a degree that she required support from a psychologist.  Whilst the psychologist sees the mother as having coped, her notes are replete with references to the mother’s concerns about what she sees as the father’s controlling and manipulative behaviour and anxiety that he would take the baby from her.  Of course, in this latter regard, she was prescient as this is exactly what he did.  From the psychologist’s notes and in the arrangements made for the baby to spend time with the father following the baby’s birth, the mother has reasonably consistently maintained a commitment to the baby having a relationship with the father.  It is notable in this regard that she was distressed by what she perceived to be his initial reluctance to bestow his surname on their daughter. 

   40.It is at the father’s behest that an order will be made for the parties to attend a psychiatrist to assess their mental health and capacity to care of the baby.  Although he will participate in the process, the gravamen of his case is that it is the mother’s mental health which is in issue and that her mental health is such that the baby should live with him.  It is accepted that the father has established that at least from May 2011 the mother has experienced periods of emotional and psychiatric distress and needed psychological support. 

   41.At this stage, the evidence suggests that the reason the mother required psychological support was to cope with the stresses of dealing with the father and their relationship issues.  In circumstances where the baby is so young and is breastfed, it is agreed that the baby will live with her during the interregnum, the Court should not take steps which would exacerbate the mother’s stress.  This is because the mother’s emotional and psychiatric wellbeing is intrinsically linked with the baby’s wellbeing.  Whilst the mother has friends who offer support and are on affidavit, she does not have family in Sydney.  The types of deep familial or personal relationships which she might otherwise call upon to help her as a new mother and in her relationship with the father are not immediately to hand.  There is no doubt that on a reading of the affidavits filed by the mother that her trust in her own judgment in relation to the father as well as in him has been shattered.  He has quite simply caused her to face her greatest fear.  Namely, that he would take the baby away.  It is not unreasonable for her to be afraid he may do so again.  In this regard, greater weight is given to the fact that he did this only two weeks ago than to him complying with the order to return the baby and his concession during that the interregnum that the baby should live with the mother. 

   42.The father’s behaviour in taking the baby two weeks ago shows a breathtaking lack of regard for the effect this would have upon the mother’s parenting capacity.  In short, it is far too soon to be confident that he would not, if given the chance, do so again if the mood struck him. 

   43.There is little doubt that it is in the baby’s interests for the mother to be as emotionally settled as possible and for the mother and baby to be afforded the opportunity to settle down following the recent events discussed above.  In circumstances where the mother is so anxious and has been identified as requiring ongoing psychological support to deal with the stresses of the last year or so, in particular, in relation to her dealings with the father, there is a strong case made for supervision of the father’s time during the interregnum. 

7. Having found justifying circumstances, to determine what order, if any, should be made as a consequence, s 117(2A)(a)-(g) must be considered.

8. Sub-section (a) is concerned with the parties’ financial circumstances.  The mother cares for the child full-time and does not have paid employment.  It is inferred that she is in receipt of government benefits.  She resides in an apartment she owns.  The father has not filed a Financial Statement.  It is properly conceded that his financial circumstances are greater than the mother’s.  At paragraphs 32 and 36 of my earlier judgment, his financial circumstances were considered.  At paragraph 32 it was inferred “…that he has reasonably significant financial means”.  Comparatively, the father is in a better financial position than the mother and the application of the sub-section weighs in her favour.

9. Neither party is in receipt of a grant of legal aid.

10. Sub-section (e) requires the Court to consider whether any party to the proceedings has been wholly unsuccessful.  On both occasions the proceedings came before the Court, the father was unsuccessful.  Although he achieved short-term supervision of the child’s care by the mother, it was established that supervision was not warranted.  The application of the sub-section favours the mother.

11. Sub-section (g) entitles the Court to take into account such other matters as the Court considers relevant.  It is most relevant that these proceedings arose because the father took a three month old baby who was being breastfed from its mother.  Because she was physically unwell, she asked for the father’s help following which in a most egregious way he betrayed her trust.  These are very serious matters.  Without in any way intending to be critical of those who advised the father, before he acted the father received legal advice in relation to parenting matters.  So that it is clear, there is no suggestion the father’s legal advisors anticipated he would act as he did.  The point is, however, that having received legal advice in relation to parenting matters the father was equipped to anticipate just how dimly the Court would view him taking the child in the manner he did.  Not only do these factors weigh heavily in favour of an order for costs, they support the mother’s contention that costs should be ordered in her favour on an indemnity basis.

12. Indemnity costs are rarely awarded and when awarded, it is generally accepted that the circumstances which warrant elevating an order for party/party costs to indemnity costs would be exceptional and are “still an exception in this and other jurisdictions”.  In the marriage of Munday & Bowman (1997) FLC 92-784 at 84,661 per Holden CJ. In Munday & Bowman, Holden CJ cited with approval Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225. In particular, the circumstances identified by Shepherd J where, in the exercise of the Court’s discretion indemnity costs have been awarded. Subsequently, in Yunghanns v Yunghanns (2000) FLC 93-029 the Full Court of this Court commented that the category of circumstances that would justify an order for indemnity costs is not closed.

13. When the factors discussed above are balanced with each other in the extraordinary circumstances of this case an order for indemnity costs up to and including the appearance on 24 July 2012 is warranted.  Namely, that component of the proceedings which involved the mother’s application for the child to be returned to her.  Thereafter, the proceedings concerned where the child would live and the circumstances of contact with the other parent.  That component of the proceedings is not so exceptional that indemnity costs are appropriate.  Thus, while an order for costs of the proceedings are appropriate, a distinction will be drawn between a portion which is ordered on an indemnity basis, and the remainder will be on a party/party basis.

14. The father has been entirely unsuccessful in his opposition to the mother’s application for costs.  It is just that an order is also made in the mother’s favour.

15. For these reasons, the orders identified at the start of this judgment are made.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 19 November  2012.

Associate:     

Date:             19 November 2012