Mainor & Mainor
[2022] FedCFamC1F 975
Federal Circuit and Family Court of Australia
(DIVISION 1)
Mainor & Mainor [2022] FedCFamC1F 975
File number(s): PAC 2182 of 2014 Judgment of: RIETHMULLER J Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – PARENTING – Where first respondent mother involved in attempt to remove applicant father’s name from eldest child’s birth certificate in Country F – Where costs of rectification of birth certificate reserved by consent orders – Where the first respondent be ordered to be solely responsible for costs associated with rectifying birth certificate
FAMILY LAW – COSTS – Where first respondent mother removed child to Country G and Country F – Where circumstances of the case are exceptional – Costs ordered on a solicitor/client basis
Legislation: Family Law Act 1975 (Cth) ss 65D, 65Y, 117, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.06, 12.13, 12.14
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Donaghey v Donaghey (Costs) (2012) 47 Fam LR 306; [2012] FamCA 231
Kohan and Kohan (1993) FLC 92–340; [1992] FamCA 116
Love v Henderson (1996) FLC 92–653
Mainor & Mainor [2020] FCCA 2269
Munday v Bowman (1997) FLC 92–784
Stasiuk & Guild [2021] FamCAFC 62
Whipp v Richards (2012) 257 FLR 395; [2012] FamCAFC 11
Division: Division 1 First Instance Date of last submission/s: 16 June 2022 Place: Parramatta Number of paragraphs: 71 Counsel for the Applicant: Ms S Mahony Solicitor for the Applicant: Australian Family Lawyers Counsel for the First Respondent: Mr A J Hartnett Solicitor for the First Respondent: Genuine Legal Solicitor for the Second Respondent: Litigant in person (did not participate) ORDERS
PAC 2182 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MAINOR
Applicant
AND: MS MANIOR
First Respondent
MR C
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
RIETHMULLER J
DATE OF ORDER:
9 DECEMBER 2022
THE COURT ORDERS THAT:
1.The first respondent mother be solely responsible for the costs associated with compliance with Order 33 of the orders made 25 May 2022.
2.The first respondent mother pay the applicant’s costs of the proceedings, save for those costs the subject of costs certificates or other costs orders, in such sum as is agreed, and failing argument, to be assessed on a solicitor/client basis.
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 the pseudonym Mainor & Mainor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction
The parties entered into consent orders for the care arrangements of two teenage boys on 25 May 2022. Those Orders provide, in substance, for the boys to spend alternate weeks and half school holidays with the applicant. As the applicant is the biological father of the eldest boy, and the second respondent the biological father of the younger boy, the Orders provide for the first respondent mother (“the mother”) to share parental responsibility for each child with the child’s respective father.
Whilst the parties were able to reach a consent agreement for the care of the children, the costs of the proceedings between the applicant and the mother remain at issue. The parties agreed to forgo an oral hearing on the issue of costs and rely upon written submissions, agreeing to orders that:
36.Within 21 days the applicant and first and second respondent file written submissions in relation to any costs application in this proceeding, noting that to date costs have been reserved and to address the issue as to whether costs should be shared or borne by the [mother] in relation to order 33 concerning the applicant and [mother] doing all things necessary to discharge any order removing the applicant’s name from [the eldest child’s] birth certificate, and that the costs issue be determined on the written submissions.
(Orders made 25 May 2022)
The second respondent did not file any written submissions.
Order 33 of the consent orders made 25 May 2022, relating to the eldest child’s Country F birth certificate, provided for the parties to:
… do all things necessary and sign all such documents as may be necessary to discharge any order removing the Applicant’s name from [the eldest child’s] birth certificate and reinstate the Applicant on any documents concerning [the eldest child’s] paternal parentage, including [the eldest child’s] birth certificate.
When read with Order 36, it is clear that the intention is that the parties meet the costs and expenses referred to in Order 33 jointly at first instance, but that the question of which party ultimately bears those costs (or some proportion of them) is to be dealt with in the costs application envisaged under Order 36. This consent order proceeds on the basis that the relevant expense is a parenting expense: see s 65D of the Family Law Act 1975 (Cth) (“the Act”), as discussed in Love v Henderson (1996) FLC 92–653, and approved in Whipp v Richards (2012) 257 FLR 395 at [186].
The applicant’s written submissions filed 16 June 2022 rely upon a bundle of documents of over 900 pages, which, fortunately, was made somewhat accessible by being presented in a well bookmarked portable document format (pdf). However, on a costs application, detailed analysis and findings are neither required nor appropriate; to proceed otherwise would result in trials being run simply for the purpose of determining costs applications.
The events up to March 2020 are the subject of findings in the judgment of Judge Harman in Mainor & Mainor [2020] FCCA 2269. Whilst Judge Harman’s judgment was for the purpose of interim orders, it followed a part-heard trial where the witnesses were cross-examined. The findings of fact in that judgment are therefore binding upon the parties. I need not repeat the findings in that judgment in these reasons.
A number of court events in these proceedings are already subject to costs orders, and therefore not within in the ambit of this application.
background
The children the subject of these proceedings were born in 2006 and 2009. The children lived with the applicant and the mother until she and the applicant separated in 2014. Consent orders were made on 28 June 2014 for the two children to live with the mother and spend alternate weekends with the applicant. Following separation of the applicant and the mother, the mother and second respondent commenced cohabitating.
In early 2016, the mother advised the applicant that he was not the father of the youngest boy (born 2009), but that he was conceived during an affair with her current partner, the second respondent. The applicant arranged DNA testing for the younger child which confirmed that he is not that child’s biological father. This discovery, as one would expect, led to a considerable deterioration of the relationship (such that there was one) between the parties. The mother was, at best, dilatory in attending to changes in the child support assessment to end the assessment for the younger boy, leading to the applicant making applications concerning the child support assessment.
In 2016, reports were made to the Department of Family and Community Services suggesting sexual abuse of the two children (in particular the eldest child) by the applicant. The eldest child, when interviewed, made no disclosures of abuse but merely recounted things that he said the mother had told him. It is now clear that there was no truth in the allegations against the applicant.
From 2016 the mother stopped the applicant from seeing the children, even collecting them early on the Fridays that the applicant would be due to collect them from school, and advising the school that the applicant was not the youngest child’s father and so unable to collect the child. The applicant, during this difficult period, sent gifts to the children through the school.
In late 2016, the mother removed the children from Australia and travelled via Country E to Country F, before returning to Australia briefly and then moving to City J. The removal of the children from Australia was unlawful as it was in breach of s 65Y of the Act. The mother alleged that she advised the applicant she was taking the children on a holiday and that he emailed back saying “noted”, however a forensic computer examiner confirmed that the applicant did not send the email alleged. Whilst the mother alleged she had received threats from the applicant, which prompted her move to City J, this was rejected by Judge Harman who described it as a “bald-faced lie”: see Mainor & Mainor at [66].
The mother says that she took up a relationship with one “Mr H” at this time. However there was evidence that the second respondent was on the same flight to City J, and the interviews of the children by the family report writer led to the view that the mother was in a relationship with the second respondent. Judge Harman queried, but did not resolve, whether the second respondent is Mr H, and that Mr H is not a separate person as alleged by the mother.
In 2017, the applicant located the children in City J and commenced proceedings to have the children returned to Australia. The applicant travelled to City J to appear before the Court there. After the first court event in City J in late 2017, the parties were ordered to surrender their and the children’s passports to the City J Court. The applicant surrendered his passport, and the mother surrendered the Australian passports of her and the children. The father says he advised the Court that the mother and the children had Country F passports, but at that time the mother advised the Court she did not have them with her in Country G. The children spent half an hour with the applicant at the Court, supervised by a court officer. The Court proceedings were adjourned for one week and the mother failed to attend at Court the following week. The applicant lodged a missing person’s report and the Court issued a bench warrant. It transpires that the mother had decamped from the Country G and returned to Country F using her and the children’s Country F passports, where she remained until 2018.
In early 2018, the applicant sought orders for the sale of real property in Australia in order to fund proceedings to have the children returned. This appears to have prompted the mother to return to Australia.
Once the children had been returned to Australia contact arrangements were put in place for them to resume a relationship with the applicant. This proved difficult as the children were then oppositional to a relationship with the applicant. This difficulty was addressed by Judge Harman in Mainor & Mainor who found:
55. [Dr B] is clear in her view that [the eldest child’s] views oppositional to his father [the applicant] have been influenced by the mother and that the contamination of those views has been occurring for many years.
56. The bases [Dr B] identifies that she relies upon in expressing that opinion are substantiated and supported by the evidence before the Court, that is, that there are instances where [the eldest child] has been directly influenced with false statements made to him and/or statements put to him, whether false or otherwise, which are not his own and, secondly, that [the second respondent] was, at a very early point after separation - approximately eight weeks after - moved into [the mother’s] home and they became a family unit held out to both children as alternate and preferable to [the applicant] as a father.
57. The final issue [Dr B] identifies is that there is the presentation of various complaints with respect to [the applicant] repeated by the children which simply have no basis in fact, the most fundamental of which is the children’s anger towards [the applicant] that he is responsible for all of the unsettled and disrupted arrangements in the period 2016 to 2018. [The mother], possibly in concert with members of her family and/or [the second respondent], are responsible for those disruptions - no one else.
…
60.The family report suggests that [the eldest child’s] views are disproportionate to his experience of the [applicant]. He is described as being highly influenced by his mother, being coached (and demonstrably so) by his mother in relation to the sexual abuse allegations, directly and indirectly influenced by his mother, as demonstrated by his counselling notes, and having a high degree of emotional immaturity.
61.[The eldest child’s] complaints with respect to [the applicant] are described as exactly echoing the complaints of his mother. It is suggested, with respect to [the youngest child], that his views are extremely rigid and negative, similarly, that they entirely reflect the views of his mother, and are, in all probability - and the basis upon which that opinion is expressed is, to my satisfaction, established by the evidence - influenced by his mother’s views and particularly his mother’s perception of a new family being a better alternative.
62.Both children are described as having a very close relationship with their mother, (for example, paragraphs 186 and others). However, that must be seen in light of [Dr B’s] evidence that this is not necessarily healthy when the closeness of that relationship, whilst containing aspects of good parenting, are also founded in the children having a false reality created for them as to the past and present and, thus, potentially, significantly impacting their future.
63.The bitterness and acrimony between the parents is also suggested to severely disadvantage these children and, at paragraph 232, it is suggested to utterly eclipse the capacity for either parent to functionally communicate with the other. Certainly, [the applicant] is angry and bitter towards [the mother], notwithstanding his protestations that it is not so, (although I accept his evidence, at least conditionally, that it is not his primary motivation in these proceedings).
(Footnotes omitted)
Judge Harman, mindful that the best interests of the children was the paramount consideration in the proceedings, went on to consider how best to meet the children’s interests rather than focusing on punishing the mother. Judge Harman ordered that the children spend alternate weeks with the applicant, which orders have ultimately, in substance, been agreed upon by the parties on a final basis.
In November 2020, following the retirement of Judge Harman, Judge Dunkley ordered that the adjourned trial be aborted and transferred the proceedings to this Court (Federal Circuit and Family Court of Australia Division 1), where ultimately the parties reached a settlement with respect to the parenting orders earlier this year. Judge Dunkley also issued a costs certificate with respect to the aborted trial. Following transfer to this court, Foster J ordered that the second respondent be joined to the proceedings.
As the mother points out in her written submissions filed 15 June 2022, there have already been some costs orders:
36.It has already been noted that Judge Dunkley made an order for a costs certificate under the [Federal Proceedings (Costs) Act 1981 (Cth)] in respect of the aborted trial. A costs order made by this Court (if any) should not disturb that costs certificate.
37.On 19 August 2021, [a Registrar] made orders by consent dismissing the Applicant’s application in a case filed on 25 January 2021. By consent, there was no order as to the costs of that application. Any costs order made by this Court (if any) should not disturb this order.
38. The following orders of the Court have expressly reserved costs:
(a) the order of Judge Harman dated 3 August 2020 (relating to the hearing of the Applicant’s application in a case dated 15 July 2020); and
(b) the order of Riethmuller J - dated 16 May 2022 in respect of that day’s court event.
The cost to the applicant of the court proceedings has been enormous, exceeding $340,000 as is itemised in 24 pages of costs schedules.
The applicant seeks costs on an indemnity basis. The mother opposes any costs orders.
There is no dispute that costs in family law proceedings are to be determined in accordance with s 117 of the Act. Ordinarily, the parties are to bear their own costs: s 117(1) of the Act. This may be seen as reflecting the reality that in parenting and property settlement disputes, there will often be a need for court orders and that, in many cases, there will be genuine disputes that parties should be able to have determined without risk of costs orders. Of course, there are always cases where a costs order is appropriate, as is provided for in s 117(2) of the Act which provides the Court with a discretion to order costs, having regard to the circumstances in particular cases. Section 117(2A) of the Act lists a number of relevant considerations, as follows:
117 Costs
…
(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 parties have addressed these relevant considerations in their submissions.
The financial circumstances of the parties
The applicant contends that both he and the mother are in employment, and that the mother owns real property. The applicant submits that the mother has the capacity to meet a costs order.
The mother says she is self-employed with weekly expenses of $4,487, exceeding her income by approximately $1,000 per week. She submits that she has “principal financial responsibility for the two children” and deposes that she meets all of the costs of the youngest child, and that the applicant does not meet much of the expenses of the eldest child (Mother’s written submissions filed 15 June 2022, paragraph 77). The mother’s only significant asset is the property situated at L Street, Suburb M NSW, worth an estimated $2,100,000 or so, which is subject to a significant mortgage of about $1,440,000. The mother submits that a costs order, as sought by the applicant, would be oppressive. The mother gives no explanation of how her expenses are being met when they exceed her income of approximately $1,000 per week. I am not satisfied that the mother has given a true account of her finances. I am persuaded that she has a significant asset.
Whether the parties are in receipt of assistance of legal aid
Both the applicant and the mother agree that they each privately funded the proceedings, and neither of them were funded by legal aid.
The conduct of the parties in the proceedings generally
At paragraph 13 of the applicant’s written submissions filed 16 June 2022, the applicant sets out a list of matters which he says justify the making of a costs order in his favour:
(1)Conduct in breaching the final orders made by consent on 28 June 2014 (discussed further in the following section);
(2)Conduct in making false allegations of family violence against the applicant, where:
(a)The mother conceded at trial before Judge Harman that she manufactured various emails which were suggested to contain threats towards her by the applicant (at [52]).
(b)With regard to the mother’s fears as to the children’s safety as a result of the alleged family violence by the applicant, Judge Harman found that the “threats that are the basis for the asserted fear are manufactured” (at [90]).
(3)Conduct in making false abuse allegations against the applicant and encouraging the eldest child to do so, where:
(a)The mother had run a case throughout proceedings that the applicant had abused the children, and had sexually abused the eldest child (his biological child).
(b)Judge Harman accepted the version of events the eldest child provided to the Department of Family and Community Services, whereby the child made no disclosure of abuse or sexual abuse by the applicant, instead that he had been told certain things by the mother (at [33–34]), and had been coached by the mother in relation to the sexual abuse allegations (at [60]).
(c)The applicant submits that the mother advanced this position despite there being contrary independent evidence available to the parties under subpoena, including the eldest child’s lack of disclosure of the alleged abuse.
(4)Conduct in falsifying evidence which the mother relied upon at trial, where:
(a)During proceedings, the mother claimed that the applicant sent her an email responding “noted” to her proposal for the children’s departure to the Country G; it was found at trial by Judge Harman that this email had not been sent by the applicant (at [37]). The mother also manufactured the emails with respect to the alleged threats by the applicant, and the allegations of abuse and sexual abuse (as mentioned above).
(b)Although the mother’s evidence at trial was that she had separated from the second respondent and ended the relationship during the period the children lived in City J, Judge Harman did not accept this to be true (at [39]).
(c)The mother gave a false statement to the City J Police, the City J Child Welfare Authority and the City J Court, including that despite being required to surrender hers and the children’s passports, the mother claimed she did not hold the children’s Country F passports with her in the Country G. Judge Harman found that “she either did or was able to replace them very quickly” since she soon after decamped to Country F (at [53]).
(d)The mother sought to “mislead the Court as to something which is profoundly important, indeed central, to its determination”, in relation to the manufactured emails containing threats by the applicant, evidence which the mother swore, and then subsequently reaffirmed at the commencement of her evidence at trial to be true (at [91]).
(5)Conduct in falsifying records relevant to the children’s birth records, including that:
(a)The mother altered the eldest child’s birth certificate to secure his school enrolment.
(6)Conduct in unilaterally removing the children from Australia to Country G without the consent of the applicant (as above): see findings of Judge Harman in Mainor & Mainor that the mother removed the children from the Commonwealth of Australia without the applicant’s consent (at [36]), and that the removal of the children was unlawful (at [38]).
(7)Conduct in misleading the Court of City J and removing the children from the Country G to Country F without consent of the applicant (as above);
(8)Conduct in alleging that the mother was not aware of proceedings before the Court following the Initiating Application being filed on 1 November 2016, where Judge Harman concluded that the mother was aware of the proceedings, having conceded that certain documents, including copies of orders, had been sent to her: see Mainor & Mainor at [43].
(9)Conduct in being non-responsive to questions during cross-examination at the final hearing before Judge Harman in March 2020: see his Honour Judge Harman’s findings, and assessment of the mother as a result of her cross-examination, evidenced in the transcripts of the final hearing, and as outlined in his reasons for judgment in Mainor & Mainor [2020] FCCA 2269.
As a result of the above conduct by the mother, the applicant submits that his costs were increased in a number of ways. The applicant was required to commence the proceedings, and prepare evidence in response to the mother’s contentions (which were dismissed by the Court), issue subpoenas, adduce evidence from a forensic computer expert in relation to the manufactured emails by the mother, file further applications to address the mother’s conduct in seeking to change the children’s birth records in Country F, and participate in proceedings which were elongated by the mother’s conduct, causing a lengthy trial and the costs of the expert on two occasions.
The applicant submitted that the mother’s conduct as a whole was “obstructive, dishonest and non-co-operative and that this caused the proceedings to be both unduly delayed and unduly costly” to the applicant, and that this is a justifying circumstances in support of making of a costs order against the mother in the applicant’s favour.
The mother concedes that the emails contained in her affidavit filed 28 September 2018 were not authentic (or “manufactured” at [52]). The mother acknowledged that she departed Australia in 2016 with the children: see mother’s written submissions filed 15 June 2022, paragraph 68. It was also accepted that the applicant had expended funds in attempting to have the mother return to Australia with the children. Notably, the mother concedes that these factors are relevant to s 117(2A)(c) and s 117(2A)(d) of the Act.
However, the mother submits that Judge Harman noted that both the mother and the applicant “had a role to play in how poor things have become” for the children (at [77]), and the mother points to the observations the Family Report writer, Dr B, about the applicant and his behaviour:
The [applicant] presents as extremely angry and bitter regarding the mother’s actions. He presents as consumed with the injustices which he perceives he has had to tolerate. This sense of injustice appears to have consumed to the [applicant] to the extent that he was unable to clearly express a sense of empathy for the children’s predicament and their experiences.
…
I think this is a good exemplar of the [applicant]’s attention, which is gravitated towards the adult legal and financial matters between himself and the mother. These have become so consuming, that he has neglected to attend to the children’s experiences and their predicaments. I think this has had and continues to have an adverse effect on his parenting of the children.
(Family Report dated 29 January 2019, paragraph 226)
The mother submits that parenting proceedings were required due to the difficulties between the parties. In this sense it is argued that s 117(1) of the Act weighs in favour of no costs order being appropriate. It is apparent that the mother’s conduct was likely to evoke the feelings the father exhibited. Whilst these feelings were unhelpful when viewed from a child focused perspective, one could hardly be critical of the father’s reaction to the mother’s conduct. I am not persuaded that this weighs significantly against the father’s cost application. However, the conduct of the parties in the litigation has also had a significant impact upon the costs of that litigation. The applicant’s submissions identify much conduct that caused significant increases in the costs of the litigation which weigh heavily in favour of a costs order for that part of the costs incurred due to the conduct referred to by the applicant. The question of whether proceedings were actually necessary at all but for the mother’s conduct is discussed under the next heading.
Whether the proceedings were necessitated by failure to comply with a previous order
The applicant submits that the mother failed to comply with the consent orders made 28 June 2014, which in essence, caused the applicant to initiate the proceedings as a whole, resulting in the applicant incurring the associated legal fees to date.
At paragraph 27 of the applicant’s written submissions, the applicant sets out further breaches of orders by the mother as follows:
(a)Failing to facilitate spend time with orders between February 2016 and February 2018 (during the time she removed the children from the Commonwealth of Australia without the applicant’s consent);
(b)Failing to facilitate the exercise of equal shared parental responsibility by the parents; and
(c)Acting contrary to s 65Y of the Act in removing the children from the Commonwealth of Australia without the applicant’s consent.
To the extent that the parenting orders now differ from the 2014 orders, it appears to be only in order to meet the changed needs of the children, resulting from the disputes following the mother’s breach of the orders and conduct in removing the children from Australia.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The applicant relies on both the outcome of the proceedings, and the position adopted by the parties throughout proceedings in order to establish whether a party was “wholly unsuccessful”.
Firstly, the applicant points out that the mother relied upon a case theory that the applicant was using the legal proceedings to “get back at her”, which Judge Harman rejected: see Mainor & Mainor at [64].
Secondly, it was submitted that the mother’s conduct and position throughout the proceedings “was so inconsistent with the children’s best interest that the Court would be satisfied that she was wholly unsuccessful” (applicant’s written submissions filed 16 June 2022, paragraph 33), referring to the fact that he was successful on the following applications:
34.1. His Application for Recovery of the Children filed 1 November 2016.
34.2. His Application to place the children’s name on the Airport Watchlist filed 1 November 2016.
34.3. His Hague Application seeking the children’s return to the Commonwealth of Australia filed 27 February 2017.
34.4. His Application in a Case filed 16 November 2017 seeking injunctive property relief.
34.5. His Application for restraints on the Mother being permitted to travel with the children outside the Commonwealth of Australia and the maintenance of their names on the Airport Watchlist as filed 12 March 2018.
34.6. His Application to adduce further evidence in the Final Hearing in respect of the [Country F] birth record proceedings filed 15 July 2020 and heard 3 August 2020.
(Applicant’s written submissions filed 16 June 2022, paragraph 34)
Thirdly, the applicant submits the mother was “wholly unsuccessful” on two parts of her position advanced at the final hearing before Judge Harman; that the eldest child spend only two nights a fortnight with the applicant, and that the youngest child spend time with the applicant in accordance with his wishes.
The mother submits that neither party has been “wholly unsuccessful”, but that she achieved greater success than the applicant on her final proposal, where the proceedings “have largely been compromised on a final basis” as proposed by her in her Amended Response filed 24 June 2021.
As referred to above, the outcome was ultimately a reflection of the changed needs of the children that occurred during the lengthy proceedings rather than the applicant not being successful. I am persuaded that in substance the mother was unsuccessful in the proceedings.
Offers of settlement
The applicant submits that the mother refused the offers made by him on 25 July 2018 (interim arrangements), 14 May 2021, and 2 June 2021. The consent orders made 25 May 2022 provide for the children to live with the applicant and the mother in an equal week-about arrangement.
The applicant made an offer on 25 July 2018 for interim orders, seeking to increase his time with the children from each alternate weekend (Friday after school to Sunday evening), to include an additional night on Sunday (being Friday after school to the commencement of school on Monday), and an additional night on Wednesday in the off week. Whilst an interim proposal, it was for less time than ultimately achieved by the applicant.
After the hearing before Judge Harman in March 2020, and the release of the updated Family Report of Dr B dated 12 August 2020, the applicant made an offer to settle on 14 May 2021. The applicant’s offer sought was for the children to live with the applicant and spend time with the mother on alternate weekends, and half of the school holidays. The applicant did not obtain orders better than his offer for a change of residence.
The parties attended a court organised alternate dispute resolution (“ADR”) on 27 May 2021, to which no agreement was reached. Having received no response to his offer prior to the ADR (above), the applicant put forward a further settlement offer on 2 June 2021. This offer sought, inter alia, that the applicant and the mother have equal shared parental responsibility for the eldest child, that the children live with the applicant and the mother in a shared care arrangement on a week about basis, and half of school holidays. In substance, this offer reflects the consent orders made on 25 May 2022.
The mother did not raise any particular matters in relation to offers to settle in her submissions. However, it is apparent upon review of the applicant’s bundle of material, that the applicant, in essence, reaffirmed his offer dated 2 June 2021 in a letter to the mother’s solicitor on 10 May 2022, and indicated that the mother made an offer that “remains the same as her offer made last year”. On the material before me in relation to this application, the specific details of the offer made by the mother some time prior to 10 May 2022 are unknown.
There is no doubt that the applicant achieved a better outcome under the consent orders made 25 May 2022 than the offer for interim orders made by him on 25 July 2018. He did not achieve more time than his offer of 14 May 2021 but did obtain orders similar to his offer of 2 June 2021.
Other matters
The applicant submits that the mother’s conduct during the proceedings is of an “exceptional kind” which would warrant the making of an indemnity costs order: see Kohan and Kohan (1993) FLC 92-340 and Munday v Bowman (1997) FLC 92-784.
The applicant also set out a list of further conduct by the mother which he says justifies the making of an indemnity costs order:
41.1. That [the mother’s] case was conducted with a wilful disregard of the known facts and in circumstances where she was represented from at least December 2017 should have known that her case as pleaded had poor prospects of success.
41.2. That [the mother’s] conduct caused unnecessary delay and increased court events causing loss of Court resources and loss to the [applicant].
41.3. That [the mother] made false allegations that ought never have been made together with groundless contentions.
41.4. That the Mother’s allegations against the [applicant], given she was found to have falsified evidence to support those, would be categorised as scandalous.
41.5. That the Mother’s conduct would be seen to have adduced false, misleading and fraudulent evidence in proceedings.
(Applicant’s written submissions filed 16 June 2022, paragraph 41)
(Citations omitted)
The applicant submitted that the proceedings are analogous with those of Donaghey v Donaghey (Costs) (2012) 47 Fam LR 306 in which the mother’s flagrant breach of orders, and the steps taken to hide the children’s location from the applicant (and the resulting difficulty and expense incurred by the applicant), constituted “exceptional circumstances”, justifying the making of an indemnity costs order.
The mother does not join issue with the applicant’s submissions, but instead points out that some of the delay was caused by court delays in having the matter listed for final hearing, noting the COVID-19 pandemic, and not simply the parties’ conduct alone. The mother also submits that the Court should consider the conduct of the applicant after the making of the orders by consent on 25 May 2022. The mother submits that the applicant had made publications about the proceedings which may have amounted to breaches of s 121 of the Act. The mother identified two Facebook publications by the applicant (which are exhibited to an affidavit filed 15 June 2022), described by the mother as follows:
(a) In the first post, the Applicant published a post headed “Lying Women ! Lying [Country F] !. PROVED !.” along with an excerpt of the orders of this Court bearing the Court’s seal; and
(b) In the second post, the Applicant published a ‘check in’ at the Federal Circuit Court in Parramatta in which he published a newspaper clipping headed ‘VICTORY! [COUNTRY N SURRENDERS]’. The Applicant narrates the clipping with a post that reads ‘Replace “[Country N]” with “[Country F]” to modernise my Victory J Its now all over bar the ex paying for her sins $$$’ and then proceeds to tag several individuals.
(Mother’s written submissions filed 15 June 2022, paragraph 84)
The above publications have since been removed by the applicant. The mother submits that this behaviour is reflective of the applicant’s conduct and behaviours observed by Dr B in the Family Report dated 29 January 2019 (as discussed above), and that the applicant’s behaviour in publishing the Facebook posts should be considered by the Court when determining an order for costs.
If the applicant breached s 121 of the Act, that can be subject of proceedings. Any breach of s 121 after the proceedings does not bear upon the conduct of the parties during the litigation. I am not persuaded that any weight should be placed upon these Facebook matters in the context of this costs application. I have discussed above the applicant’s reactions to the mother’s conduct.
Other COSTS Issues
Costs pursuant to Order 33 of the orders made 25 May 2022
As mentioned above at [5], the parties were to meet the costs referred to in Order 33 of the orders made 25 May 2022 jointly at first instance, in relation to discharging any order removing the applicant’s name from the eldest child’s birth certificate in Country F. The question of which party ultimately bears the costs (or some proportion of them), is to be determined as part of this application. Both the applicant and the mother have made submissions in this regard.
At some point, the applicant became aware of court proceedings in 2017 in Country F in relation to the eldest child. The applicant obtained a copy of documents from the Country F proceedings, including the “Verdict” of Country F in City O between the applicant and the mother. The applicant says that City O is the mother’s home town (Applicant’s affidavit filed 30 July 2021, paragraph 121). The applicant had the documents translated by a NAATI translator. The Verdict states that Country F proceedings were initiated by the applicant, that the mother filed a written request to have the application decided in her absence, that the mother admitted the “claim” (that the applicant is not the father to the eldest child), and that the proceedings were heard without the parties present. The Verdict made orders to remove the applicant’s name as the father of the eldest child on his birth certificate.
There is dispute between the parties as to whether it was the applicant or the mother who commenced proceedings in Country F in this regard. The mother submits that any costs of implementing Order 33 and discharging any Country F order removing the applicant’s name from the eldest child’s birth certificate should be shared equally between the parties.
The applicant seeks that the mother be solely liable for any costs incurred in facilitating compliance with Order 33. I accept, as the applicant submits, that the mother’s claim that he commenced the Country F proceedings to remove his name from the eldest child’s birth certificate should be rejected as implausible, as it was only in the mother’s interests to take such steps. The applicant also highlights that there is a lack of evidence that he had ever travelled to Country F following the birth of the children, unlike the mother, and raises the mother’s conduct throughout the proceedings. In these circumstances, the applicant submits that the costs of implementing Order 33 have only been incurred as a result of the mother’s conduct in commencing proceedings in Country F, and that the mother should bear the costs of compliance with Order 33.
In light of the previous findings of Judge Harman in Mainor & Mainor, and the list of matters raised by the applicant, it does not seem fanciful that the mother would initiate proceedings in Country F seeking to have his name removed from the eldest child’s birth certificate. As pointed out by the applicant, it was only in the mother’s interests to take such steps and any version of events to the contrary appear on balance to be implausible. There is no other person identified by the mother who would have any interest in taking such a step. Most significantly, even if another person had meddled in the affairs of the parties in this way, it must have been apparent to the mother that such a step would not be taken by the applicant. In my view, the appropriate order is for the mother to be solely responsible for the costs of rectifying same and implementing Order 33 of the orders made 25 May 2022.
Costs of the foreign proceedings
In the applicant’s Further Amended Initiating Application filed 12 March 2018, the applicant seeks costs as on an indemnity basis of the proceedings under the Hague Convention of the Civil Aspects of International Child Abduction, in the Country G in 2017, as follows:
26. That the Mother pay the [applicant]’s legal costs on an indemnity basis in connection with this proceeding and the proceeding under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention").
27. That further to Order 26, the Mother pay the [applicant]’s legal costs on an indemnity basis connection with the proceeding under the Hague Convention petition, including the costs of his transport, including return flights to the [Country G]. his accommodation in the [Country G] in attending the hearing at the Court of [City J] [in late 2017], the legal costs paid by him to his [City J] Attorney, [P Lawyers], to [Mr Q] and the legal costs incurred by him in [Mr R] acting on his behalf in relation to the Hague Convention petition within 28 days upon the [applicant] providing those itemised invoices.
(Applicant’s Further Amended Initiating Application filed 12 March 2018, paragraphs 26–27)
Specific submissions relating to this issue are absent from the applicant’s written submissions.
Firstly, as highlighted by the mother in her written submissions filed 15 June 2022, the travel costs sought by the applicant are not costs in the usual sense of court proceedings, and are not recoverable by way of a costs order: Cachia v Hanes (1994) 179 CLR 403 at 410–411, and Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at 339. Secondly, the costs sought by the applicant with respect to the legal fees of his foreign lawyers in the Country G, fall outside the scope of the rules of this Court: see r 12.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Costs that are incurred in proceedings of a foreign court overseas, would appropriately be the subject of a costs order in that court.
Costs of the proceedings in Country G are compensatory in nature for expenses outside the ambit of the costs in this Court. They would be more appropriately considered by this Court in accordance with a Contravention Application stemming from a breach of Court orders by the mother (see Pt VII and s 117A of the Family Law Act 1975 (Cth)), whereas the present application relates only to costs (professional costs relating to the proceedings).
Previous cost certificate and costs orders
As noted above at [8], there are previous applications where some costs issues have already been determined. Such matters cannot be the subject of the current application. Those costs are not open to be revisited on this application.
Following the part-heard trial before Judge Harman in March 2020, the two days listed in September 2020 to finish hearing the trial were vacated as a result of Judge Harman’s resignation from office. On 27 November 2020, the proceedings came before Judge Dunkley and orders were made granting both the applicant and the mother a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) as a result of Judge Harman being no longer available to hear the case.
The applicant has not yet had his claim under the costs certificate determined. The mother submits that any costs order should not disturb the costs certificate issued by Judge Dunkley. These costs were outside the control of the parties and should not be the subject of a further costs orders.
Requirements of r 12.06 of the Rules with respect to indemnity costs
Both parties have filed costs notices as required by the rules: see r 12.06 of the Rules. However, neither the applicant nor the mother has filed with the Court a copy of the costs agreements by which they were bound in support of an indemnity costs order, as required by the rules: see r 12.13(4) of the Rules.
I have identified various costs issues that have already been dealt with, and make no orders affecting those costs. I decline to make orders with respect to the costs of the Country G proceedings for the reasons set out above. For the reasons set out above, the mother should be responsible for the costs of rectifying the eldest child’s birth certificate in Country F.
With respect to the balance of the costs, I have reflected upon the matter as a whole, and the requirements of s 117 of the Act. I have also had careful regard to the leading cases discussing when indemnity costs may be appropriate: see Kohan and Kohan (1993) FLC 92–340 and Stasiuk & Guild [2021] FamCAFC 62. I am persuaded the circumstances of this case are exceptional and that the appropriate order for costs not already dealt with, in the particular circumstances of this case is for the mother to pay the applicant’s costs on a solicitor/client basis.
Orders as to costs
I therefore make orders that:
(a)the mother be solely responsible for the costs associated with compliance with Order 33 of the orders made 25 May 2022; and
(b)the mother to pay the applicant’s costs of the proceedings, save for those costs the subject of costs certificates or other costs orders, on a solicitor/client basis.
The amount should be assessed by a registrar in the usual way, if the parties are unable to agree.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 9 December 2022
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