Lodge & Tiller (No 3)
[2023] FedCFamC1F 30
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lodge & Tiller (No 3) [2023] FedCFamC1F 30
File number: MLC 9308 of 2009 Judgment of: CARTER J Date of judgment: 1 February 2023 Catchwords: FAMILY LAW – COSTS – where the father and Independent Children’s Lawyer sought costs – where the mother has failed to attended court on multiple occasions – where the proceedings were adjourned for the mother to participate – consideration of factors in s 117 of the Family Law Act 1975 (Cth) – costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) s117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Division: Division 1 First Instance Number of paragraphs: 30 Date of last submissions: 19 January 2023 Date of hearing: 19 January 2023 Place: Melbourne Counsel for the Applicant: Andrew Combes Solicitor for the Applicant: Wightons Lawyers The Respondent: Litigant in person (did not participate) Counsel for the Independent Children's Lawyer: Sarah Mansfield Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 9308 of 2009 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LODGE
Applicant
AND: MS TILLER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CARTER J
DATE OF ORDER:
1 february 2023
THE COURT ORDERS THAT:
1.Within 60 days, the mother pay the costs of the father in the amount of $6,788.28 being for the hearing days on 2 and 12 August 2022.
2.The father forthwith serve a copy of these orders on the mother by email.
3.All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
AND THE COURT NOTES THAT:
A.Pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court may vary or set aside a judgment or order made in the absence of a party.
B.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION
On 19 January 2023, the part heard final hearing of this matter was to resume. The mother did not attend court that day, notwithstanding I was satisfied she was well aware of the hearing date. Final orders were made in the mother’s absence.
At the conclusion of the final hearing, the father and the Independent Children’s Lawyer made an application for costs thrown away on 2 and 12 August 2022. On both those occasions the mother did not attend court, and proceedings were unnecessarily delayed and frustrated.
The orders I made on 19 January 2023 – save for a change in relation to the mechanics of changeover – were in the same terms as proposed final parenting orders sent to the mother on 21 December 2022. The Independent Children’s Lawyer indicated she supported those proposed orders.
On 28 December 2022, the mother emailed the parties regarding criminal proceedings brought against the parties’ child X born in 2008 (“X”). The mother did not acknowledge the correspondence sent on 21 December 2022.
On 30 December 2022, the father’s solicitors sent a further email to the mother requesting a response to the father’s proposal for final parenting orders to avoid trial affidavit preparation. That father’s solicitors wrote:
We note that the parties must otherwise file their updated trial affidavits in early January and in circumstances where is it apparent that [X] will now reside with our client in Queensland, any further trial and the cross examination of the parties appears to be unproductive and only contribute to the emotional and financial impact of legal proceedings…
On 31 December 2022, the mother emailed the parties that she did not agree with the father’s proposed orders. Later that day, the Independent Children’s Lawyer emailed the mother seeking clarification as to which orders the mother disagreed with. I note the mother did not reply to the email from the Independent Children’s Lawyer.
On 4 January 2023, the father’s solicitor sent a letter to the mother and Independent Children’s Lawyer. The father sought, in addition to the Independent Children’s Lawyer’s request on 31 December 2022, that the mother provide details of any alternative orders she sought.
On 8 January 2023, the mother emailed the parties notifying them she would not be attending the final hearing on 19 January 2023 “[d]ue to extensive trauma caused by previous Federal Circuit Court appearances”. The mother further stated “I will await the Final Orders”.
On 12 January 2023, the father’s solicitors sent the mother a letter that read in part:
We refer to previous correspondence and, in particular, our requests that the parties seek to resolve this matter prior to Trial.
We note you do not consent to the proposed final parenting Orders put forward by the father.
On at least two occasions we have requested you to outline what Orders are disputed and what Orders you are seeking. To date, you have not responded to those requests.
The father has now incurred additional costs to prepare Trial Affidavit material, notwithstanding that you have relinquished care of [X] and consented to him relocating to Brisbane.
…
In the event you fail to appear at the final hearing on 19 January 2023 we shall seek, on behalf of the father, a Costs Order on an indemnity basis, in relation to costs incurred by him in respect of the hearing on 2 August 2022, 12 August 2022 and 19 January 2023 in circumstances where you have been provided opportunity to resolve the matter and elected not to engage in any discussions.
I am satisfied that the mother was on notice that a costs application would be made by the father. The Independent Children’s Lawyer also sought costs, but that appears to be without notice to the mother. Accordingly, I am prepared to deal with the application for costs made by the father.
THE LAW IN RELATION TO COSTS
The general rule in relation to costs is that each party will bear their own costs. That is set out in s 117(1) of the Family Law 1975 (Cth) (“the Act”). However, that rule is subject to the provisions of s117(2). That subsection provides that a court may make such order for costs as it considers just if “…the court is of opinion that there are circumstances that justify it in doing so…”
Subsections 117(2A)(a)-(g) of the Act set out the matters the Court must consider in determining whether to exercise its discretion and make an order as to costs. No one factor must be present, and no particular factor is to be given more or less weight than any other. The factors to which the court must have regard are as follows:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, 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.
DISCUSSION
In terms of the parties’ financial circumstances, as best as I understand it, neither parent is in paid employment. I anticipate the mother would say she has no financial capacity to meet a costs order. Impecuniosity is, of course, no bar to a costs order being made.
The father privately pays the costs of his representation. The mother was provided assistance pursuant to the Commonwealth Family Violence Cross Examination of Parties Scheme, but was not satisfied with her representation. She was subsequently self-represented.
The costs sought are in relation to two days when the mother did not attend court.
The mother’s non-appearance on 2 August 2022 meant the final hearing could not continue. The mother’s non-appearance on 12 August 2022 again meant the final hearing could not continue. Although interim orders were made that day, the substantive trial had to be adjourned part heard to 19 January 2023.
On each of those occasions, the mother asserted that her mental health was impacted to the extent that she could not attend court on those days. However, despite having ample opportunity to do so, the mother has not adduced evidence from any medical or allied health professional that corroborates her assertions. Moreover, I note that the records from Organisation B regarding the mother’s attendance there on 1-2 August 2022. The document tendered in the substantive proceedings indicated that the health provider told the mother they did not feel comfortable to provide support for any adjournment application made by her at that time. Those records further indicated the mother wanted to avoid court and deliberately took the day off to go to the beach with her daughter to achieve this on 2 August 2022. The mother has not provided any reasonable explanation for this decision.
The mother has adduced nothing from any professional regarding her non-attendance on 12 August 2022.
The father and the Independent Children’s Lawyer attended on those days. The father has to meet the costs of his barrister and solicitor attending on both days, when the trial could not continue purely as a result of the mother’s failure to attend. Similarly, the public purse is required to fund counsel for the Independent Children’s Lawyer on those days. As noted, the mother has not produced any evidence to support her assertions that she was not well enough to attend – or otherwise explain her non-attendance - on either of those court hearing days.
The mother also did not attend the hearing on 19 January 2023. Again, that non-attendance is without adequate explanation.
I note that core principle six in the Central Practice Direction – Family Law Case Management deals with the non-compliance of a party to proceedings. Part 3.12 provides that:
If at any time during the course of proceedings, the Court considers that a party or their legal representatives have pursued or defended an Application, Response or Reply without legal foundation and/or other than in good faith or without making a reasonable and genuine attempt to resolve the issue(s) in dispute where safe to do so, the Court may:
…
(h) make such other orders as are appropriate, including orders for costs, which may include an order for costs against a party’s legal representatives.
It seems to me that the mother has not appeared to make reasonable or genuine attempts to resolve the parenting. She has not responded meaningfully to the most recent proposals by the father. She has previously made proposals that are inappropriate – including that X be placed into foster care. At times, she has not articulated the orders she seeks. At others, she has oscillated significantly in the care arrangements she thought would be in X’s best interests.
The father’s conduct as a litigant has been appropriate.
The proceedings were not necessitated by the failure of a party to comply with previous orders.
The mother has, effectively, been wholly unsuccessful in these proceedings.
As I have already indicated, the mother was provided with a copy of proposed orders in December 2022, as sought by the father and supported by the Independent Children’s Lawyer. Had she consented to those orders, they could have been made in chambers without the necessity of an appearance. Those are the orders I ultimately made, with a minor amendment only in relation to the mechanism for changeover.
DETERMINATION
In the exercise of what has been described as a wide discretion, and taking all of the factors into account, it does seem to me there are circumstances that justify departing from the usual rule that each meet their own costs. In my view, it is appropriate that the mother contributes to the father’s costs.
In terms of the quantum, pursuant to rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), I am able to fix an amount for costs. This enables the parties to avoid the expense, delay and inconvenience involved in taxation. In making an order under rule 12.17(1), as I am, I may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in sub-rule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable proceedings;
(d) whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e) the time properly spent on the proceeding, or in complying with pre-action procedures;
(f) whether expenses (paid or payable) are fair, reasonable and proportionate.
It is apparent the matter is somewhat complex. I have outlined what I regard as unreasonable behaviour on the mother’s part. Conversely, the father’s conduct, and that of his lawyers, has been reasonable and appropriate. I note the scale amounts for counsel, and the hourly rate allowed for solicitors, and the amount incurred by the father for those days. Taking all these matters into account, and in the exercise of my very broad discretion, I will order that the mother pay the following costs:
(a)counsel for the father on 2 and 12 August 2022 in accordance with the scale, at $2,040.64 per day (being a total of $4,081.28); and
(b)the father’s instructing solicitor for her attendances on 2 and 12 August 2022 at $1,045 and $1,662 respectively (being a total of $2,707).
I am satisfied these costs are fair, reasonable and proportionate. Those costs are to be paid within 60 days.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 1 February 2023
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