M and C-k - [2007] FMCAfam 778

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & C-K

[2007] FMCAfam 778

FAMILY LAW – Costs – Rice v Asplund – applicant wholly unsuccessful – capricious proceedings – order for costs.

Family Law Act 1975, ss.117
Federal Magistrates Court Rules 2001

Rice v Asplund (1979) FLC90-215

Applicant:

Respondent:

File Number:

SYM 8720 of 2006

Judgment of:

Altobelli FM

Hearing date:

20 August 2007

Date of Last Submission:

20 August 2007

Delivered at:

Sydney

Delivered on:

19 October 2007

REPRESENTATION

Applicant:

Self Represented

Solicitor Advocate for the Respondent:

Mr Corbett

Solicitors for the Respondent:

Haydon Fowler Corbett Jessop

ORDERS

The mother pay the father’s costs of $3,330.00 within sixty days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 8720 of 2006

Applicant

And

Respondent

REASONS FOR JUDGMENT

I provide these brief reasons to explain why I have made an order for costs in this matter. By way of background the substantive proceedings before me related to B who was born on 2 March 2001, and who is now six years old. His mother was the unsuccessful applicant in the substantive proceedings. B’s father was the respondent. On the 20^th August 2007 I dismissed the mother’s application failed 22 December 2006, having regard to the principles set out in the Full Court decision in Rice v Asplund (1979) FLC90-215.
In my ex-tempore reasons provided at the time the application was dismissed I reflected on the fact that for most of B’s life his parents seem to have been litigating about him, or in relation to spending time with him. The most recent orders relating to B are dated 20 March 2006. These were Consent Orders. These orders carefully set out an arrangement for B to spend time with his father. The mother’s substantive application was filed on 22 December 2006, just over nine months after these orders were made. The main issue raised in the application was, in effect, a variation to the existing arrangement sought by the mother. The effect of this variation would be to break up the time that B spends with his father and reduce the amount of time he spends with his father during the school holiday period.
The mother was representing herself throughout the proceedings. She is obviously an intelligent, articulate woman. Whilst she was not familiar with legal process and much of the affidavit material she filed contained irrelevant material, nonetheless it was very clear why she wanted to changed he orders. As it turns out, I held that none of the reason she raised crossed the Rice v Asplund threshold, and thus her application should be dismissed. Further litigation was not in the best interests of B.
As I explained to the parents in my ex tempore reasons the principle in Rice v Asplund and my decision in this matter was based purely on what is in the best interests of B. I raised the issue of Rice v Asplund at a very early stage in these proceedings. Indeed, the Orders made 19 January 2007 first set the matter down for hearing on 27 February 2007 for determination of the Rice v Asplund issue. I provided several explanations of the principle to the mother even before the hearing of the issue. The mother was clearly on notice of the significance of this issue.
Both parties filed written submissions are to costs. In the mother’s submissions in relation to costs dated 17 September 2007 she makes the following statement :
I have read Rice v Asplund and am aware that it is not based on objective measures and is not a mathematical equation. It is discretionary, subjective and relies heavily on the personality of the judge and the judge’s knowledge and understanding of children’s needs. Generally, judges would not be where they were if they knew a lot about children. It takes a lot of library time (time away from the 24/7 needs of children) to become a judge. Because of this, the decision could have gone either way.
If one puts aside that this passage demonstrates the mother’s lack of respect of the capacity of judicial officers to understand children’s needs, it clearly demonstrates that at some stage during these proceedings the mother was aware of Rice v Asplund and the principles underlying it. As she herself says “the decision could have gone either way”. From this I infer that she was fully aware of the risk that she could lose her application, but chose to persist with it instead. It is curious however that a person who is so quick to criticise the capacity of judges to understand children’s needs would so obviously fail to perceive the impact on her own son of continued litigation in relation to him.
The mother’s lack of insight is as apparent in her costs submissions, as it was during the course of the substantive application. The essence as to the mother’s submissions as to why she should not pay costs is that the father refused to discuss the change to the orders, and therefore she had no choice but to go to court. She says that, in any event, the father is in a far superior financial position to hers and she has the responsibility to care for her children, including B. The mother submits that each party should pay their own costs.
The father’s submissions are framed having regard to the matters in s.117(2A) of the Act, which states:
(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.
The father says that the mother is in a good financial position, but he does not seriously suggest he is not in a superior financial position. The submission on behalf of the father is that the claim at all times lacked merit, and was wholly unsuccessful and that the mother was given numerous opportunities to discontinue the application at a much earlier stage, both by the court and through the father’s solicitors. A further submission on behalf of the father is that the making of the costs order would reinforce the court’s view that childrens’ orders are not to be subjected to frequent applications for variation.
The fact is that the father was entirely successful, and the mother entirely unsuccessful in her application. She was given every opportunity to discontinue, but she persisted. Even though she was self represented, she herself acknowledges that she knew the relevant legal principles.
The mother has demonstrated a disrespect for the court process, not just in her costs submission, but in the affidavit evidence on which she relied during the hearing. This is relevant under paragraph (c) and possibly (g) of s.117(2A). For example, in her affidavit filed 8 August 2007, at page seven she states as follows:
Now, I am just a mother, it seems my opinions are no longer respected. People with far less parenting experience than I, who care far less about my children than I do, are being given the right to make decisions about my children. I believe this is wrong, and does not reflect the ideology behind a democracy. My frustration can be summed up in the manipulated women sphere graphics- Annexure I.
The annexure to her affidavit is a document is that is entitled “The Australian Women’s Sphere”. It is a pictorial depiction of nine characters, eight men arranged around a woman in the centre. Associated with each picture is a caption containing a few words. For example, there is a picture of a man assaulting a woman with the caption “the wife basher gets the kids”. There is a picture of a portly gentlemen with the caption “I'm a doctor and I left my three year old alone locked in the car during a heat wave. No probs”. This is, I infer, a reference to an incident that took place between the parents some time ago. The father is a doctor. There is a picture of what appears to be an indigenous man holding a boomerang in one hand and a bottle in the other, with the caption “I have the kids”. In the centre is a picture of a women who appears to be wearing an academic robe with a mortar board on her head and reading a book and it contains the caption “But I may not be trusted to make decisions about my children”.
It is clear from all of the evidence that the mother feels that she knows best when it comes to her children, and she has little regard for either the father, or the court system. It is demonstrative of a capricious approach to the litigation that seems to focus almost exclusively on her own needs with precious little regards for the needs of her son. It is also a rather strange view to be held by someone who was the applicant in these proceedings.
The mother asserts that she is in a far worse financial position that the father. However, she fails to disclose her income or assets. For many other self-represented litigants, this might be understandable, but for the applicant, who is clearly intelligent and articulate, this is a serious omission in her costs argument. The father’s submissions in reply relating to costs attaches Land Titles Office searches indicating that the applicant mother is the registered proprietor of property at Glebe, and in the Parish of P, and in the Parish of A. Two of these properties are encumbered by mortgages. Even if the mother does own these properties, it does not indicate a capacity to meet an order for costs. Nonetheless, her failure to provide evidence to support her assertion that she is in a worse financial situation than the father does not satisfy me that she has no capacity to pay. I record that even if she had no, or little, capacity to pay, I would make a costs order to deter her from bringing capricious applications in relation to her son.
In the father’s submissions he seeks an order for costs in relation to the whole proceedings in the sum of $12,123.10. Alternatively he seeks an order for costs from 20 January 2007 to 30 August 2007 in sum of $8,444.70. I record the fact that if I were satisfied that the mother had the capacity to pay these costs, I would have no hesitation to pay the entire costs of the proceedings, however I am not satisfied that she has that capacity, though I still think it is necessary to make a costs order.
Under the circumstances, I make an order pursuant to Schedule 1 to Part 1 of the Federal Magistrates Court’s Rules 2001 for a lump sum in the sum of $1,875.00, representing stage 1A: an application that includes interim orders, and $1,250.00 for Stage 2, an interim hearing as a discrete event. In addition were several mentions, but I will only order her to pay for the costs of one of those mentions, in the sum of $205.00. Accordingly the sum of $3,330.00 should be paid to the father, or as he directs within sixty days.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:

Date: 19 October 2007