Maker & Jets (No 3)
[2012] FMCAfam 1104
•12 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAKER & JETS (No.3) | [2012] FMCAfam 1104 |
| FAMILY LAW – Costs – application for costs following an 11 day trial – consideration of dicta from Full Court decision in Hawkins & Roe (2012) FamCAFC 77 – consideration of approach to the question of costs in parenting cases – whether a parenting dispute should have certain particular features before an order for costs can be made – whether a trial judge's discretion should be fettered by rules or guidelines not appearing in and unrelated to the provisions of the Family Law Act 1975 – distinction between a case which is "wholly unsuccessful" and a case which is without merit – where the proceedings were necessitated by the failure of the mother to comply with previous orders – where the mother was wholly unsuccessful – where the mother was motivated by factors other than the best interests of the child – whether apparent inability of a party to pay costs might constitute a bar to an order being made – where there are circumstances which justify an order for costs being made on a party/party basis notwithstanding the mother's difficult financial position – mother ordered to pay the father's costs of the substantive proceedings. |
| Family Law Act 1975 (Cth) Federal Magistrates Court Rules2001 Federal Magistrates Court Regulations Family Law Rules |
| Braithwaite (2007) FamCA 468 C & C (No.2) (2007) FMCAfam 54 Carpenter and Lunn (2008) FamCAFC 128 Chappell (2008) FamCAFC 143 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 Cross & Beaumont (2008) FamCAFC 68 Edgar v Halle (No.2) (2010) FamCA 260 Hawkins & Roe (2012) FamCAFC 77 Hogan (1986) FLC 91-704 I & I (No.2) (1996) FLC 92-625 Kelly & Kelly (No.2) (1981) FLC 91-108 Kohan (1992) 16 Fam LR 245; (1993) FLC 92–340 Latoudis v Casey (1990) 170 CLR 534 Marinko (1983) FLC 91-307 Maker & Jets (2012) FamCAFC 103 Munday and Bowman (1997) 22 Fam LR 321; FLC 92–784 Penfold (1980) FLC 90-800 Re David Costs (1998) FLC 92-809 | ||
| Applicant: | MR MAKER | |
| Respondent: | MS JETS |
| File Number: | MLC 493 of 2009 |
| Judgment of: | Walters FM |
| Hearing dates: | 5 September 2012 |
| Date of Last Submission: | 5 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Howe |
| Solicitors for the Applicant: | Meier Denison Guyner |
| Counsel for the Respondent: | Mr O’Connor |
| Solicitors for the Respondent: | Horsfield & Associates |
ORDERS
IT IS ORDERED THAT:
The mother must pay the father's costs of and incidental to the proceedings ─ such proceedings to be deemed to have commenced with the filing of the mother’s application initiating proceedings on 4 August 2010 ("the Costs").
In addition, the mother must pay 80% of the father's costs of and incidental to the father's application for costs made subsequent to the completion of the trial ("the Additional Costs").
In the event of the parties failing to agree upon the quantum of the Costs and the Additional Costs by 4 p.m. on 23 November 2012, and pursuant to Part 21 of the Federal Magistrates Court Rules 2001, the Costs and the Additional Costs be referred for taxation under Chapter 19 of the Family Law Rules.
IT IS NOTED that publication of this judgment under the pseudonym Maker & Jets (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 493 of 2009
| MR MAKER |
Applicant
And
| MS JETS |
Respondent
REASONS FOR JUDGMENT
Background
On 16 November 2011, after an 11 day trial, I made orders to the effect that the parties' child, X, live with the father and that the father have sole parental responsibility for him ("the Orders"). Until then, X had lived with the mother and spent limited time with the father. The Orders were made after I delivered a comparatively short, ex tempore preliminary judgment.
On 20 January 2012, I published my Reasons for Judgment ("the Judgment") dealing with the parties' competing applications for parenting orders.
On 12 December 2011 – after the making of the Orders, but before the publication of the Judgment – the mother filed a notice of appeal. Among other things, she sought to set aside the orders providing for X to live with the father.
On 23 April 2012, the mother discontinued the appeal (by filing an appropriate notice of discontinuance). The father then made an application for costs relating to the discontinued appeal. This application was heard and determined by Strickland J on 12 July 2012. After providing ex tempore Reasons for Judgment ("the Full Court Costs Judgment"), his Honour ordered the mother to pay the father's costs relating to the discontinued appeal – such costs to be assessed on a party/party basis in default of agreement being reached as to an appropriate quantum.
Meanwhile, the father had filed an application in a case on 7 February 2012, seeking orders to the effect that the mother pay his costs relating to the substantive proceedings in this Court. On 20 June 2012, orders were made requiring the parties to file written submissions in relation to the costs issue. The parties were also required to file financial statements. The application for costs was otherwise adjourned to 5 September 2012 for oral argument (although a notation was made to the effect that counsel would be limited to a maximum of 15 minutes each at the hearing on 5 September 2012).
In accordance (or more or less in accordance) with the arrangements described in the orders of 20 June 2012, the following documents were filed:
a)the father's submissions in relation to costs (filed 3 July 2012);
b)the father's financial statement (sworn 28 June 2012);
c)the mother's submissions in relation to costs (in response to the father’s submissions) – filed 2 September 2012; and
d)the mother's financial statement.
I shall refer to the father's submissions as "FS" and the mother's submissions as "MS".
As envisaged in the orders of 20 June 2012, a short hearing took place on 5 September 2012, at which relatively brief oral submissions were made by Mr Howe (for the father) and Mr O'Connor (for the mother). Neither party raised any objection to the procedural or mechanical aspects of the costs application, or (for example) to the late filing of MS.
Relevant Law
Although the law now refers to a child “spending time” with a person with whom the child does not live,[1] I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[1] See, for example, s.64B(2) of the Family Law Act 1975. See also Carpenter and Lunn (2008) FamCAFC 128 and Chappell (2008) FamCAFC 143
The question of costs in family law proceedings is dealt with in section 117 of the Family Law Act. A judicial officer has a broad discretion in costs matters, and it has been said by the Full Court, for example, that it will not ordinarily intervene unless a costs order is plainly unreasonable. Indeed, it has been held that the Court has an almost unlimited jurisdiction in relation to costs – although, clearly, any order for costs must be just.[2]
[2] See, for example, Kelly & Kelly (No.2) (1981) FLC 91-108, Hogan (1986) FLC 91-704 and I & I (No.2) (1996) FLC 92-625.
It is not the law that a costs order can only be made in what has been described as "a clear case". Although a finding of justifying circumstances is an essential preliminary to the making of a costs order, there is no additional or special onus on an applicant for an order for costs. The general rule is that each party shall bear his or her own costs, but that rule is expressed to be subject to section 117(2), and it must yield whenever a judicial officer finds that there are circumstances which justify the making of a costs order. It follows that both the costs award itself and the quantum of costs actually ordered are discretionary.[3]
[3] See, in that regard, the decision of the High Court in Penfold (1980) FLC 90-800.
In the very recent decision of Hawkins & Roe (2012) FamCAFC 77, the Full Court said:[4]
The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, … the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative … (Further), there is nothing to prevent any factor being the sole foundation for an order for costs.
[4] At paragraph 18 (case references omitted)
There is nothing in the provisions of section 117 to justify any difference in approach to the question of costs in parenting cases. Circumstances such as a totally unmeritorious case on one side, an attempt to vary a "live with" order which does not even establish a prima facie case, the withholding of evidence (and like matters), are common bases for such an order, but they are not necessarily prerequisites. Whether or not such factors exist, all relevant matters referred to in section 117(2A) must be taken into account – as in any application for costs.[5]
[5]see I & I (No 2) and Re David Costs (1998) FLC 92-809; see also Braithwaite (2007) FamCA 468 at paragraph 115
A disparity in financial resources between parties to family law litigation can sometimes justify an order for costs in favour of the party with fewer financial resources. On the other hand, the apparent inability of a party to pay costs is not a bar to a costs order being made in circumstances where – for example – that party's conduct (being, presumably, that party's conduct as a litigant) warrants such an order.[6]
[6] See Hawkins & Roe (2012) FamCAFC 77 at paragraph 20, citing Marinko (1983) FLC 91-307 and Cross v Beaumont (2008) 39 Fam LR 389. See also Strickland J's comments in dealing with the father's application for costs following the mother's discontinuance of her appeal from the Orders in these proceedings – Maker & Jets (2012) FamCAFC 103 at paragraphs 18 and 19 (where his Honour said: Weighing up the competing circumstances, the difficult financial position in which [the mother] finds herself cannot prevent an order for costs being made.)
Hawkins & Roe was an appeal by a father from a costs order where the substantive proceedings had concerned parenting matters only. The trial judge had found that the father was in "a better financial shape" than the mother, and that he had the financial capacity to pay costs in the amount ordered. In allowing the appeal, the majority (May and Ainslie-Wallace JJ) held that the trial judge had fallen into error "in placing considerable weight on the finding that the father was in a better financial position than the mother and had the capacity to pay a costs order" – for which finding that there was inadequate evidence. The majority continued:[7]
… we would wish to emphasise that it is not necessary to conclude that a party has the capacity to pay a costs order before making any such order. … However if, as it seems clear from the reasons of the judge, the father's financial circumstances were a reason justifying the order, then to conclude that the father could meet this order was an error.
Accordingly, we conclude that the judge should have found the father did not at the time of the hearing have the capacity to pay, from his income or by reason of his assets, a costs order. His Honour could then have considered the other factors. (Emphasis added.)
[7] at paragraphs 72-3
Having concluded that the appeal should be upheld on the basis of the trial judge's error as described above, the majority turned to consider whether there were (other) justifying circumstances for the making of the costs order under appeal. They concluded that although "there were circumstances which may have enlivened the consideration of whether a costs order could be justified, (the trial judge's) discretion should not have been exercised to order costs".
With the greatest of respect to their Honours, the reasoning in this part of the judgment (comprising paragraphs 141 to 148) is difficult to follow. It also appears to be inconsistent with previous authority. For example, the majority referred to "serious conduct" – such as knowingly making a false allegation or statement – as "more predictably (attracting) the making of a costs order" in parenting proceedings. In support of such a proposition, the majority cited the first instance decision of Brown J in Edgar v Halle (No 2) (2010) FamCA 260. But Edgar v Halle (No 2) is no more than a single example of a costs order being made in circumstances where one party made numerous false allegations and statements in the course of the proceedings, motivated by antipathy towards the other party. It is clear from the judgment, however, that such behaviour was not the sole ground for the making of the costs order. Indeed, Brown J referred to the relevant behaviour under the general heading of section 117AB of the Family Law Act, and in the context of making a finding to the effect that section 117AB(2) applied. Given that section 117AB was inserted into the Family Law Act in 2006 and repealed in 2011, Edgar v Halle (No 2) is arguably a less than helpful example of the predictability of costs orders in parenting proceedings.
After referring to Edgar v Halle (No 2), the majority cited the Full Court’s decision in Cross & Beaumont (2008) FamCAFC 68 as authority for the proposition that "financial incapacity to pay a costs order is not a barrier where the conduct of the party may warrant the making of such an order". But Cross & Beaumont was a property case, which did not involve parenting issues.
Although the majority quoted from paragraph 60 of Cross & Beaumont, the full text of paragraphs 59 and 60 help to elucidate the quotation:
59. In ordering the husband to pay 65% of the wife’s costs, his Honour made no mention of the fact that the husband’s liabilities exceeded his available assets – even before taking into account the property settlement he was obliged to pay. There was also no evidence that the husband could afford to borrow money from any source to meet the costs ordered. On the contrary, the husband had provided evidence that he would be unable to borrow funds unless he could provide security – which he could not.
60. We do not suggest that the apparent inability of a party to pay costs is a bar to an order being made, since there are cases where the conduct of an impecunious party will warrant costs being ordered without regard to the difficulties likely to be associated with enforcement. Although his Honour was critical of the way in which the husband presented part of his case, his conduct was not such as to make it immediately obvious why he should be required to pay costs he clearly could not afford. We are of this view notwithstanding the wife also has virtually no assets (other than her entitlement to the property settlement) and a significant liability relating to legal costs. (Emphasis added.)
In re-exercising its discretion in relation to the issue of costs, the Full Court in Cross & Beaumont concluded that there were only two matters that could justify a costs order in the circumstances of the case then before it. The first related to the fact that the husband was unsuccessful in relation to "most" of his submissions to the effect that there should be certain deductions from the asset pool. The second related to certain non-disclosures attributed to the husband. In relation to the former, the Full Court considered that the propositions relied upon by the husband may not have been entirely without merit; in relation to the latter, the Full Court considered that the husband had already been "penalised" for his non-disclosure of financial accounts in that he had, in effect, received less by way of property settlement than would have been the case if the claimed liabilities (which were related to the disclosure issue) had been recognised and taken into account in the substantive judgment.
In those circumstances, the Full Court was not persuaded that there were circumstances which justified a departure from the general rule that each party should pay his/her own costs. The Full Court's determination in that regard was, of course, simply an exercise of its discretion in the circumstances of the particular case before it. That exercise of discretion could not and did not amount to a binding determination or authority.
The majority in Hawkins & Roe concluded their re-exercise of discretion as follows:
146. While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father’s conduct of his case at the trial. ….
147. Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs. (Emphasis added.)
Again, and with the greatest of respect to their Honours, these paragraphs appear to be unsupported by authority. Relevantly, decisions such as I & I (No 2) contradict them. Although the majority referred to I & I (No 2) in their judgment, the reference was in a different context.[8] Even if I am wrong in these observations, it is apparent that there is an internal inconsistency in the majority's approach: if the categories of occasions when costs may be ordered are unlimited, then it is clearly impermissible to attempt to limit them by suggesting that, before a costs order can be made in a parenting dispute, the case "should" have certain particular features. The inference from the majority's comments seems to be that the "particular features" that a parenting case "should" have before a costs order can be made comprise the following:
a)an allegation or finding of dishonesty;
b)adverse findings about a party's conduct of his/her case at trial;
c)a complete absence of preparedness to compromise in the face of unambiguous expert evidence;
d)the making of false allegations; or
e)where one party is clearly motivated by self-interest rather than the best interests of a child.
[8] see paragraph 18 of Hawkins & Roe
Earlier in their joint judgment, the majority had written:[9]
In proceedings involving children’s or parenting matters, the general rule (that each party should pay his/her own costs) is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the State or Federal courts
[9] at paragraph 14
To the extent that the majority might be perceived to be suggesting – in the various passages referred to above – that the discretion of a judicial officer at first instance to order costs should be fettered by rules or guidelines such as those listed in paragraph 23 above, I would simply record that the exercise of such discretion cannot be so fettered.
In his dissenting judgment in Hawkins & Roe, Thackray J also had discomfort with the majority's approach in this regard. In paragraph 162, his Honour said:
I also respectfully agree with May and Ainslie-Wallace JJ that the “general rule” that each party will pay their own costs is not often displaced in parenting cases, and that the nature of such litigation is quite different to a commercial dispute in other courts. However, the statute itself does not differentiate between parenting and financial cases. The discretion given to a trial Judge to determine a costs dispute, even in a parenting case, is a very wide one, and I am not persuaded there is an adequate basis for overturning the order.
As Thackray J implies, statements to the effect that the "default position" (that each party should pay his/her own costs) is not often displaced in parenting cases are simply statements of fact – or, perhaps, perceived fact. They cannot and do not mandate the setting of a higher standard or threshold test to be met or satisfied before a judicial officer at first instance can make an order for costs in parenting cases. Such an approach would be in direct conflict with the costs provisions of the Family Law Act. Further, the relevance of an observation to the effect that family law litigation in relation to children is quite different to a commercial dispute in the State or Federal courts seems marginal. If a comparison must be made, then it should be between family law litigation in relation to children (on the one hand) and family law litigation in relation to property or other issues (on the other). The law and practice regarding costs in commercial disputes in State or Federal courts is very different to the law and practice regarding costs in family law proceedings, not least because the latter fall under the umbrella of the provisions of the Family Law Act, and the former do not.
The majority's suggestion that the reason why cost orders are made less frequently in parenting cases (than in, say, property cases) is because "it is proper that parents be able to put their case in seeking orders which they believe to be in the best interests of their children" seems directed towards creating or maintaining a distinction between categories of family law cases that may not, in fact, exist. To some litigants, their and their children's financial well-being is at least as important as parenting issues. In many cases, property and parenting disputes are intertwined. Some cases are primarily property disputes, with comparatively minor parenting disputes adhering to them; some cases are the opposite. And it is doubtful that the potential for an adverse costs order would be any more likely to dissuade or prevent a litigant from putting his/her case in a parenting dispute than in a property dispute (or, for that matter, a dispute involving elements of both parenting and property issues) – particularly after the repeal of section 117AB.
The breadth of the judicial officer's discretion in family law costs matters has been recognised and acknowledged for over 30 years. If the relevant judicial officer is not persuaded that the circumstances warrant the displacement of the general rule to the effect that each party should pay his/her own costs, then the default position should adhere. In costs disputes under the Family Law Act, it has never followed that the simple fact that one party has been successful and the other has not should necessarily and inevitably lead to the making of an order for costs in favour of the successful party. As is clear from the law discussed above, the success (or, more accurately, the lack of success) of a party in family law proceedings is but one of a number of factors to be taken into account in determining whether an order for costs is appropriate.
In similar vein, I concur with Thackray J's comment (in paragraph 161) that "even a meritorious case can be 'unsuccessful' when the other case is found to have greater merit". Section 117(2A) requires the court to have regard to (among other things) whether a party has been "wholly unsuccessful in the proceedings". This factor clearly says nothing about the merits or otherwise of each party's case, and hence it is not an automatic defence (as it were) to an application for a costs order to argue that the case of a party who was wholly unsuccessful was "not without merit".[10] Again, the breadth of the judicial officer's discretion in relation to costs allows for argument regarding the comparative merits of each party's case and the reasonableness of pursuing the same.
[10] See paragraph 20 above.
It follows from the above that I propose to bear in mind that the general rule (to the effect that each party should bear his/her own costs) is not often displaced in parenting cases, and that I should be alert to the need to identify features which might justify a departure from the general rule. I recognise, of course, that some relevant factors might support an order for costs, while other relevant factors might not. At the end of the day, however, the balancing of such matters is a matter for me in the exercise my discretion.
Orders sought
The father seeks an order that the mother pay his costs (part of which should be assessed on a party/party basis, and part on an indemnity basis) or, alternatively, costs on such other basis as the court determines.
The mother seeks an order that the father's application for costs be dismissed.
Relevant considerations
I turn now to consider the factors under section 117(2A). Before doing so, however, I will again record that I accept that the general rule (that each party should pay his/her own costs) is not often displaced in proceedings involving children's or parenting matters. I also accept that the determination of the substantive dispute – relating, as it did, to the best interests of the parties' son X – was of very great importance to both parties. Further, I am aware that I must be satisfied that there are circumstances which justify the making of an order for costs before proceeding to make such an order. Although, for the reasons that I have indicated above, I am not persuaded that my discretion is fettered in any way simply because these were parenting proceedings, I am prepared to consider – in the course of exercising my discretion – whether the case might fall within or contain one or more of the categories, examples or types of "features" alluded to by the majority of the Full Court in Hawkins & Roe.
Each party's financial circumstances
Both parties have filed financial statements. I accept that each party's financial circumstances are difficult, and that the father is arguably in a better financial position than the mother. That is not to say, however, that the father is in a strong financial position.
The father works on a full-time basis. He is a director of a company known as (omitted). His total average weekly income is approximately $1772 (including minimal child support – being some $15 per week – from the mother). The father's partner, Ms W, has an income of approximately $250 per week. The father and Ms W live with X, their child Y (who is approximately one year old) and Ms W's three children. The family's total average weekly expenditure is approximately $1940.
The total value of the property owned by the father is approximately $607,000. His liabilities (including approximately $45,000 in respect of legal fees) total approximately $549,000. It follows that he has net assets of approximately $58,000. He also has superannuation with a gross value of approximately $63,000.
The mother is employed as a (omitted) on a casual basis. Her employer is (omitted), which is a firm conducted by her mother.
The mother's total average weekly income is approximately $550 (which includes rental income of $350 per week). The mother lives with her mother, Mrs Jets, who contributes something in the order of $1250 per week towards the mother's living costs and mortgage repayments. Mrs Jets senior also pays (or has paid) an amount described as "variable" in respect of the mother's legal costs.
The mother's total average weekly personal expenditure is approximately $1250, over half of which relates to a unit that she owns in Property S (and in respect of which she is currently receiving rental income).
The total value of the property owned by the mother is approximately $462,000 (including the Property S property). Her liabilities total $700,000 – comprising $400,000 relating to the mortgage over the Property S property and $300,000 owing to her mother by way of a personal loan. The mother appears to have no (direct) liability in respect of legal fees.
The mother has superannuation entitlements valued at approximately $2000.
In MS, it is submitted that there is a significant disparity between the parties' financial positions, that the mother is unemployed and financially dependent on her mother and that she is significantly indebted to both the Bendigo Bank (in relation to the mortgage) and her mother (in relation to the personal loan). The mother's liability in respect of her personal loan is expressed to be $300,000 in the mother's financial statement, but only $150,000 in MS.[11]
[11] see MS paragraph 9
In paragraph 10 of MS, it is submitted that the mother's emotional state is impacting on her ability to work. No independent evidence was presented in support of the submission, but it was not challenged by the father. I note that in the Full Court Costs Judgment, Strickland J observed:
17. Clearly (the mother's) financial circumstances are difficult. What concerns me about that though is that she has not sought any Centrelink benefits, she has not yet attempted to re-enter the workforce and she presents no evidence in terms of any medical reports, for example, that would indicate that she is unable to obtain employment.
I accept that the mother would find it very difficult to meet any substantial costs order made against her from our own resources. No costs order has been sought against Ms Jets directly. Given her willingness to financially support the mother in the past, however, and the fact that she has apparently met all or almost all of the mother's legal fees to date, it might be expected that the mother could approach her to advance more funds to meet any costs order made in favour of the father. Although that might amount to a reasonable expectation, it remains hypothetical.
As Strickland J observed in the Full Court Costs Judgment, "the difficult financial position in which (the mother) finds herself cannot prevent an order for costs being made". It is, however, a relevant factor – and one that I do not ignore.
Legal aid
This is not a relevant consideration, and neither party suggests that it is.
Conduct of the parties as litigants
In broad terms, section 117(2A)(c) requires the Court to have regard to the parties' conduct as litigants.
The father argues that the manner in which the mother conducted the proceedings caused them to be unduly prolonged and made them unnecessarily expensive. Relevantly, he argues that the mother was "an obstructive, evasive and uncooperative witness who took every available point and unreasonably refused to concede those points warranting concession". He also argues that the mother rejected – inappropriately and unreasonably – the preponderance of expert opinion relating to matters in issue in the proceedings. Put another way, and having regard to the types of "particular features" referred to by the majority in Hawkins & Roe, he argues that the mother demonstrated "a complete absence of preparedness to compromise in the face of unambiguous expert evidence".
In addition, the father refers to:
a)the mother's evidence to the effect that she would not comply with court orders if she did not agree with them (which evidence was later recanted in affidavit form);
b)the mother's refusal to put forward what might be regarded as reasonable alternative orders (to those sought by the father) – in that she sought sole parental responsibility and orders terminating contact between X and the father; and
c)the unsatisfactory nature of certain evidence put forward by the mother in support of her allegations to the effect that X had been injured by (or while in the care of) the father, and the trouble and expense to which the father was put in challenging or rebutting that evidence.
In response, the mother argues that:
a)there is no suggestion that she gave false or misleading evidence which prolonged the case;
b)the father accepted that she was not being deliberately dishonest, and suggested that she had a delusional belief to the effect that the father was intentionally harming X; and
c)both parties were "equally stubborn and unrelenting in their refusal to compromise".
The mother denies that she sought orders to the effect that there be no contact between X and the father. She submits that she sought orders for supervised contact.
The mother also denies that she was an "obstructive, evasive and uncooperative witness", although she accepts that the Court found her to be a poor witness, who was vague and difficult to understand.
MS makes reference to the Court's concern about the mother's psychological state and its view that she would benefit from psychological assistance and suggests that "it would not be appropriate to make a costs order against the mother given the Court's concerns about her psychological state".
In my opinion, both parties appear to have exaggerated the significance of the manner in which the trial itself was conducted when considering the conduct of the parties "in relation to the proceedings". Section 117(2A)(c) directs the Court's attention to the broader issue of the manner in which the parties have conducted themselves throughout the proceedings. Generally speaking, I have no criticism of either party for the manner in which they conducted themselves during the course of the proceedings. By and large, the procedural orders made by the Court were complied with, and the proceedings flowed relatively smoothly.
I accept that the mother demonstrated a complete or almost complete absence of preparedness to compromise in the face of unambiguous (or very close to unambiguous) expert evidence. I also accept that she was a poor witness. Clearly, I was not persuaded that X was at risk in the father's care. I preferred the evidence of the father and Ms W to the evidence of the mother and her mother. These types of factors can, however, be considered under the general heading of whether the mother was wholly unsuccessful in the proceedings (or, perhaps, under section 117(2A)(g) – which requires the court to have regard to such other matters as it considers relevant).
Similarly, the mother's behaviour in failing to comply with orders at different stages (leading, among other things, to the case being reopened after closing addresses had been delivered) can be considered under section 117(2A)(d).
The outline of case documents filed on behalf of the mother and the independent children's lawyer on 28 and 27 January 2011 respectively both contain adequate chronologies dealing with the general history of the proceedings. I also summarised the procedural history in paragraph 63 of the Judgment.
Leaving aside the father's contravention application filed 11 August 2009 (which was heard and determined by Federal Magistrate O'Dwyer on 25 August 2009, but sent back for rehearing following the mother's successful appeal in March 2010), the substantive proceedings commenced with the mother's initiating application filed 4 August 2010. In that application, the mother sought that all previous orders relating to the father's time with X be discharged and that X "spend time with the father as (the Court) may determine". The father's response (filed in late September 2010) sought orders to the effect that X live with him and spend substantial and significant time with the mother.
By the time the trial commenced, the mother was seeking orders to the effect that the parties have equal shared parental responsibility for X, that X live with the mother and that the father spend time with him for a very limited time each week. The mother proposed that the father's time with X should occur during daylight hours only, and be fully supervised.
By the time that the trial concluded (on 16 November 2011), the mother's case was to the effect that the orders that I had made on 30 September 2010, as varied by the orders of 28 July 2011, should continue indefinitely. Relevantly, those orders were to the effect that the parties have equal shared parental responsibility for X, and that X live with the mother and spend substantial and significant time with the father. The father's mother or Ms W were to be in substantial attendance during all contact periods. The orders of 28 July 2011 added a requirement to the effect that "at each changeover a staff member of (X’s child care centre) shall undertake a full body visual examination of (X) and make notes as to any cuts, scratches, bruises or other marks observed". Thus, the mother's case evolved from one in which she sought that the father have limited and strictly supervised daytime contact to one in which she proposed that the father have substantial and significant time with X, provided that others were to be in substantial attendance and provided that X was to undergo a full body visual examination at each changeover.
I accept, therefore, that the father has overstated the case by suggesting in FS that the mother sought sole parental responsibility and no contact whatsoever between the father and X. On the other hand, I do not accept the mother's assertions in MS there is “no suggestion” that the mother gave false or misleading evidence which prolonged the case and that both parties were equally stubborn and unrelenting in their refusal to compromise. I dealt with the mother's credibility, and her attitude, in the Judgment and will return to this subject later in these Reasons.
It is true that the Court had concerns about the mother's psychological state. The fact of the matter is, however, that the mother and (no doubt on her instructions) her counsel effectively rejected those concerns. The mother's approach was that she could see what others could not (or would not) and that, in effect, the Court's concerns should be directed to them and not to her. During the final phase of the trial, the mother and the father were asked to leave the court while I raised concerns with counsel as to the mother's demeanour in the witness box, and as to whether she might have been affected by some form of medication. After a discussion with counsel in open Court, the trial resumed – on the basis that Mr O'Connor could raise with the Court at any time any concerns that he may have about the mother's capacity to give evidence.[12]
[12] see 14 November 2011 transcript at pages 17 to 23
I reject the mother’s submission to the effect that it would not be appropriate to make a costs order against her "given the Court’s concerns about her psychological state". The mother was represented by competent counsel at all times, and there was never any suggestion that she was not capable of giving instructions or that she did not fully understand all aspects of the proceedings. The mother herself consistently rejected any suggestion that she was deluded or in need of psychological intervention or assistance. She never resiled from her view that the father posed a significant risk to X.
I would add that the mother has not presented any independent or expert evidence regarding her current psychological or emotional state – in spite of the submission in MS to the effect that her emotional state is impacting on her ability to work.
Whether the proceedings were necessitated by the failure of a party to comply with previous orders
I have dealt with the background to the substantive proceedings in the Judgment under the heading "Background and Overview". There were previous proceedings between the parties relating to parenting issues. Those proceedings progressed to an advanced stage: an independent children's lawyer was appointed, the parties was seen by Dr E and a family report was prepared by Mr L. The proceedings were listed for trial on 20 May 2009 before Federal Magistrate Phipps, but settled on that day. Consent final orders were made to the effect that, inter alia, X was to live with the mother and the father was to have unsupervised contact with him on an overnight basis (increasing to 5 nights per fortnight and half of all school holidays).
As indicated in paragraph 63(k) and (l) of the Judgment:
Problems arose very shortly after the making of the 2009 final orders. With effect from July 2009 (and using the words appearing in the mother's chronology):
Mother alleges child returns from father’s time regularly with injuries (bruising, scratches and other injuries to head, body and limbs ...)
The mother having stopped contact on the basis of these allegations, the father filed a contravention application on 11 August 2009.
The contravention application came before Federal Magistrate O'Dwyer on 25 August 2009. His Honour found the contravention proved. The mother then appealed. O’Ryan J allowed the appeal on 26 March 2010, and ordered a rehearing. The rehearing of the contravention application first came before me on 12 April 2010, at which time it was listed for a two day hearing commencing in late September 2010. In the meantime, and within one day of each other in early August 2010, the father filed a further contravention application and the mother filed an application initiating proceedings seeking the discharge of the 2009 final orders and a reconsideration of the contact arrangements that might be deemed appropriate between the father and X. She also filed a Form 4 Notice of Child Abuse. The father filed a response on 27 September 2010, seeking orders to the effect that X live with him.
The substantive proceedings that formed the subject of the trial to which the Judgment relates were initiated by the parties' competing applications filed in August and September 2010. The father later withdrew his contravention applications, given that the issues raised in them had been subsumed under the substantive proceedings (involving, as they did, the question of whether X should live with the mother or with the father).
In MS, it is submitted that the father's response filed in late September 2010 "could not be described as proceedings necessitated by the mother's failure to comply with court orders". I reject that submission, and note that MS makes no mention of the consent orders made in May 2009, the original contravention application dealt with by Federal Magistrate O'Dwyer in August 2009, the appeal from his Honour's finding, the order for a rehearing, and the programming orders relating to that rehearing made on 12 April 2010. In reality, the substantive proceedings had their genesis in the father's contravention application filed almost 12 months prior to the mother's application to discharge the final parenting orders made in May 2009.
I have no doubt that the substantive proceedings were necessitated by the mother's failure to comply with previous orders of the Court. I refer, for example, to the following passage from paragraph 257 of the Judgment:
I find that for so long as X remains in the care of his mother, he will be prevented from having an ongoing meaningful relationship with his father. … It has been suggested that the mother cannot help herself in some way, and that she has been profoundly affected by the father's behaviour at the time the parties were together. That may be so, but I find that the mother has made no real, or alternatively insufficient, effort to deal with her own demons in that regard, and I find that she is unlikely to do so in the future. If X remains in her care, then the evidence before me compels me to conclude that he will be prevented from having a close and meaningful relationship with his father.
On the other hand, I find that if X lives with his father, he will have the opportunity of having a meaningful and loving relationship with his mother. In other words, the only way that I can ensure that X will be able to have a loving, caring and meaningful relationship with both his parents is if he lives with the father. I am not and cannot be satisfied that that would ever occur if he lives with the mother …
I also refer to paragraph 271 of the Judgment:
The evidence in this case to the effect that the mother is neither willing nor able to facilitate and encourage a close and continuing relationship between X and the father is overwhelming. I have already recorded my conclusions to the effect that the mother's views are entrenched. I find that not only will the mother neither facilitate nor encourage a close and continuing relationship between X and the father, but that she will also do everything within her power to actively impede and discourage such a relationship. The thrust of her evidence was that she could see no benefit to X in having any sort of relationship (and certainly not a meaningful, close and continuing relationship) with the father and, to a lesser extent, with Ms W and his family. To the extent that the mother said or suggested that she wants or would like X to have a meaningful, loving, close and continuing relationship with the father, I reject her evidence in that regard. As I have discussed above, her actions speak far louder than her words.
Finally, I refer to paragraph 292 of the Judgment:
The next factor is whether it would be preferable to make an order that would be less likely to lead to the institution of further proceedings in relation to the child. These proceedings have been before the Court in one form or another for a very long time. Indeed, they started out as the result of a contravention application which was heard and determined, formed the subject of an appeal, was sent back for a re-hearing, and then metamorphosed into the applications now before the court.
I have absolutely no doubt, and I find as a fact, that there will be further proceedings and further breaches of orders if X remains in the mother's care, and if the Court were to order that the father continue to have contact with X – whether or not the contact is supervised, and whether or not the changeover is supervised.
I am concerned, as I indicated, about the mother's mental state in the broadest sense, but irrespective of those concerns I find that that she will not be able to restrain herself from continuing to make unfounded allegations about the father, and to involve X in those allegations in the way that she has to date – for example, by having him medically examined and interviewed by police officers and other experts. And in my view, if X remains in the mother's care, there will certainly be further proceedings relating to him.
I am of the view that the orders that are least likely to lead to the institution of further proceedings in relation to X are the orders that the ICL has proposed. In other words, orders that would place X in the father's care, and give the father sole parental responsibility for him. (Emphasis added.)
In summary, my findings were to the effect that the only way that the father could have a meaningful relationship with X was to seek orders to the effect that X live with him. If X had continued to live with the mother, she would have continued to find reasons or perceived reasons to fail to comply with contact orders.
The mother's failure to comply with contact orders even occurred during the course of the substantive proceedings. Thus, and as explained in paragraphs 64 and 65 of the Judgment:
(The mother) raised fresh allegations regarding the father's behaviour towards X both during the proceedings and after the completion of what turned out to be the first phase of the trial, leading to the trial having to be reopened. … The trial commenced on 2 February 2011 and continued to 4 February 2011, at which time it was adjourned to 21 March 2011. Before the recommencement of the trial on 21 March 2011, both (the mother and her mother) alleged that X made statements on 4, 5 and 6 March 2011 suggesting that the father had sexually abused him and allegedly injured him to the point that (according to the mother and her mother) X said "there was blood". As a result of this allegation, the father's contact with X was stopped, and did not recommence until after the trial resumed on 21 March 2011. The allegation was investigated, but not substantiated.
After the completion of what turned out to be the first phase of the trial (on 25 March 2011), the proceedings were adjourned for the delivery of judgment. While the judgment was still pending, the mother alleged that she noticed (when she was dressing him in his pyjamas on 3 July 2011) that X had marks or cuts on his right arm. She alleged that X told her that the father had cut him with a sword, and that X had also told her that the father had put him in a rubbish bin with a red lid. The evidence reveals that there were indeed marks on X’s right arm when he was later examined by police and others. Once again, the father's contact with X was stopped as a result of this allegation. It is clear, however, that the police did not accept that the father had caused the marks on X’s arm, and suspected that the mother had caused the injury herself and made a false report. … I am satisfied that the father did not cause the marks on X’s arm. I am also satisfied that the father did not put X in a rubbish bin or any other receptacle of any sort as apparently alleged by X. I am satisfied of both those things on the balance of probabilities, and taking into account the seriousness of the matters alleged.
As a result of both these incidents (which I referred to in the Judgment as "the blood incident" and "the sword incident"), contact between X and the father was stopped. The incidents and their consequences reinforce my view to the effect that the substantive proceedings were necessitated by the mother's failure to comply with previous orders of the court. Indeed, the sword incident caused the trial to be reopened.
One party wholly unsuccessful
I agree with the submission in FS to the effect that the mother has been wholly unsuccessful in the proceedings, and "arguably spectacularly so". The core issue in the substantive proceedings was whether X should continue to live with the mother or whether he should live with the father. The mother was wholly unsuccessful in her claim for orders to the effect that X should continue to live with her. Further, the result of the proceedings was that the father was granted sole parental responsibility for X.
As Thackray J wrote in Hawkins & Roe, "even a meritorious case can be 'unsuccessful' when the other case is found to have greater merit".[13] As was submitted in MS, there were some factors in the substantive proceedings which favoured the mother's case. For example, I accepted that X has a close and loving relationship with the mother and with his maternal grandmother. I also accepted that X had lived all his life in the care of the mother and that a change in living arrangements from X’s point of view would be difficult. Further, I accepted that the father had not always acted in a mature and responsible fashion and that, in the past, he had abused alcohol and drugs, and been violent to the mother (although I concluded that the father is now a very different person and that he is indeed mature and responsible). But there can be no doubt that the merits favoured the father's case – and overwhelmingly so. Indeed, I found that X faced an unacceptable risk of psychological and emotional harm for so long as he remained in the mother’s care.[14]
[13] see above, under the heading "Relevant Law"
[14] See paragraphs 60 and 259 of the Judgment.
The Judgment contains a significant number of strong findings against the mother (and certain of her witnesses). For example, I refer to paragraphs 72 to 76 (under the heading "General findings in relation to Ms Jets and Mr Maker – Ms Jets"), 141, 142 to 149 (under the heading "Ms Jets’ evidence"), 174 and 219. Of these, I refer, in particular, to paragraphs 75 and 76:
I find the mother to be a most unimpressive witness in the broadest sense. I find that her evidence cannot and should not be relied upon where it is in conflict with the father's evidence, or, indeed, where her evidence is in conflict with any other witness (including, but not limited to, Ms W and Mr P). Nor can her evidence be relied upon where it is in conflict with Dr E's report or Mr L's report, given that both reports were accepted into evidence without objection and that neither of those experts was required for cross examination.
I am aware that, among other things, Mr Howe (counsel for the father) submitted that the mother may not necessarily be fabricating her evidence or lying about her observations. He submitted (in his opening, at least) that, instead, she has a delusional fixation that the father has intentionally abused X – which fixation is sourced in her profound hatred of the father and which overrides any other consideration, including X’s best interests. Mr Howe submitted that the mother is supported by her mother in this regard, and that the mother's mother dislikes the father as much as the mother does. He suggested in his opening that the mother may have some form of "delusional paranoia", in that she simply will not be budged from her fixation irrespective of what amounts to overwhelming evidence to the contrary. Notwithstanding Mr Howe's submissions, and for the reasons discussed elsewhere in this judgment, I am not persuaded that all of the mother's evidence should be accepted as being truthful. Further, I suspect that she is not as deluded as Mr Howe suggests. I accept, however, that she is angry with the father (which anger is so intense that it manifests itself at a visceral level) and wishes to hurt and upset him. Far from the father deliberately harming X in order to hurt and upset her in a most profound and fundamental sense, I find that the mother has made and maintained the sorts of allegations against the father discussed in this judgment in order to hurt and upset him – by making his contact with X as limited and as constrained as possible, by attempting to impede the development and unhindered manifestation of a natural, caring and loving relationship between X and the father and by making the father's life as uncomfortable as possible by doing her best to ensure that (metaphorically) he remains in the hot, harsh and unrelenting glare of the spotlight at all times.
In my opinion, it is clear beyond argument that the mother has been wholly unsuccessful in the proceedings.
Offers in writing
This does not appear to be a relevant consideration, and neither party suggests that it is.
Other matters considered relevant
I remind myself of the matters to which I have referred in paragraphs 31 and 34 above, which I shall not now repeat. The substantive proceedings comprised a parenting case, but the following features (at least) were present:
a)allegations of dishonesty;
b)adverse findings about the mother's conduct;
c)a complete absence of preparedness on the part of the mother to compromise in the face of unambiguous expert evidence;
d)the making of a large number of allegations that were found to be without foundation;
e)a finding that the mother made and maintained the sorts of allegations against the father discussed in the Judgment in order to hurt and upset him (as expanded upon in paragraph 76 of the Judgment); and
f)direct or indirect findings to the effect that the mother was motivated by her anger and bitterness towards the father, or by other factors unrelated to X’s best interests.[15]
[15] See paragraphs 22 and 23 above.
In MS, the mother appears to be suggesting that the Court might be minded to make an order for costs in order to punish her for her behaviour, or for the fact that she was unsuccessful in the proceedings. As I said in the Judgment (on more than one occasion), however, the Court is not concerned with punishing one party or the other, or rewarding one party or the other for that matter. In the substantive proceedings, the Court’s paramount consideration comprised X’s best interests – and punishing or rewarding one party or the other would have amounted to an abdication of the Court’s obligation to make such orders as are most likely to be in X’s best interests. It would have been an obvious failure to apply the law. Similarly, to incorporate inappropriate concepts of punishment of one party or the other into its consideration of an application for costs would amount to a failure of the Court's obligation to apply the provisions of section 117 of the Family Law Act and, in particular, to make such order as to costs as the Court considers just.
In broad terms, the general law is to the effect that it is just and reasonable that someone who causes a person to incur legal costs should reimburse that person for those costs.[16] Costs (relevantly, party and party costs) are compensatory, in the sense that they intended to partially indemnify a successful litigant against his or her liability for legal costs. In other words, they are compensatory, not punitive.[17] To that extent, "punishment" and "penalty" are not relevant considerations. Indeed, they are fraught concepts, given that a successful litigant who has fought long and hard through the court system to clear himself or herself of serious and perhaps malicious allegations that may have been made against him or her (which allegations may have the most profound effect on his or her relationship with his or her children, or on his or her financial well-being) might fairly consider that a reluctance of the part of the Court to order costs in his or her favour is tantamount to being punished, or penalised, for having chosen to litigate instead of, say, to metaphorically “walk away”.
[16] see, for example, Latoudis v Casey (1990) 170 CLR 534
[17] See Braithwaite (2007) FamCA 468.
I am not bound by the decision in C & C (No 2) (2007) FMCAfam 54 referred to in MS and am not persuaded by the reasoning in it. I propose to apply the provisions of section 117 of the Family Law Act and, in doing so, to apply the law as I have summarised it under the heading "Relevant Law" above.
Conclusion
In my opinion, there are circumstances which justify the making of an order for costs in the father's favour. The most significant of those circumstances are:
a)the fact that the proceedings were necessitated by the mother's failure to comply with previous orders;
b)the fact that the mother has been wholly unsuccessful in the proceedings; and
c)the “features” or considerations referred to in paragraph 82 above.
I have given careful consideration to what Strickland J described (in the Full Court Costs Judgment) as "the difficult financial position in which the mother finds herself". I have also considered the mother's financial position in comparison with the father's financial position.
I accept that the mother's financial position is a factor which would mitigate against the making of an order for costs. At the end of the day, however, I am satisfied that the other relevant factors clearly, and significantly, outweigh it. In all the circumstances, it would be unjust and unfair for the court to fail to make an order for costs in the father's favour.
Indemnity costs
The father seeks an order that the mother pay certain of his costs on an indemnity basis – relevantly, his costs of the first day of the trial and his costs relating to the last three days of the trial (being 14 to 16 November 2011).
The law in relation to indemnity costs is adequately summarised in the LexisNexis Australian Family Law online service as follows:
The leading authorities on indemnity costs include In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92–340 (FC) and In the Marriage of Munday and Bowman (1997) 22 Fam LR 321; FLC 92–784 at 84,661 (Holden CJ), which contains a helpful review of the authorities and principles. The court has said that it should not lightly depart from the ordinary rules relating to costs between party and party and that the circumstances justifying the departure “should be of an exceptional kind”, indemnity costs being “still an exception in this and other jurisdictions”. An authority discussed in Munday and Bowman, at Fam LR 322; FLC 84,660, Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248, gives the following examples where indemnity costs might properly be awarded:
(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts…
(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud…
(c) Evidence of particular misconduct causing loss of time to the court and to other parties…
(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…
(e) An imprudent refusal of an offer to compromise.
The father submits that the mother has made allegations against the father which ought never to have been made, and that her groundless contentions regarding the father injuring X caused the case to be reopened and needlessly prolonged for a further three days. I accept that there is some merit in the father's submissions in this regard. The fact remains, however, that the Court should not lightly depart from the ordinary rules relating to costs between party and party. Exceptional circumstances are required before an order for indemnity costs can be made. Keeping in mind the considerations to which I referred in paragraphs 31 and 34 above, and recognising that in the circumstances of the present case I have concluded that it is just and appropriate to make an order for costs in the father's favour, I am not persuaded that the circumstances referred to by the father are sufficiently exceptional to justify a departure from the ordinary rules relating to costs between party and party.
Orders
Rule 21.10 of the Federal Magistrates Court Rules 2001 provides that, unless the Court otherwise orders, a party entitled to costs in a proceeding is entitled to costs in accordance with Schedule 1, together with disbursements properly incurred. Rule 21.02(2) provides that, in making an order for costs, the court may, among other things, set the amount of the costs, set the method by which the costs are to be calculated or refer the costs for "taxation" (now called "assessment") pursuant to the Family Law Rules. It follows that Chapter 19 of the Family Law Rules has no application unless costs are to be assessed.
Having regard to the matters discussed above, I propose to make orders to the following effect:
a)The mother pay the father's costs of and incidental to the proceedings ("the Costs").
b)In the event of the parties failing to agree upon the quantum of the Costs by 4 p.m. on 23 November 2012, and pursuant to Part 21 of the Federal Magistrates Court Rules 2001, the Costs be referred for taxation under Chapter 19 of the Family Law Rules.
Further, and taking into account the fact that the mother has been wholly unsuccessful in opposing the father's application for costs (save to the extent that I shall refer to below), I propose to order that the mother pay a significant proportion of the father's costs of and incidental to the father's application for costs made subsequent to the completion of the trial, such costs also to be referred for taxation if the parties are unable to agree upon the quantum of the same by 4 p.m. on 23 November 2012.
In my opinion, the only relevant factor in determining the costs associated with the father's application for costs is the fact that the mother has – save in one respect – been wholly unsuccessful in relation to it. That factor is sufficient in itself to warrant the making of an order for costs.
Although the mother was wholly unsuccessful in opposing the father's application for costs, she was successful in opposing his application for indemnity costs in respect of the two periods referred to in FS. The claim for indemnity costs was a relatively minor aspect of the broader claim for costs, but MS reveals that the mother was obliged to spend some time responding to it. In my opinion, a fair and just order for costs in relation to the application for costs is to the effect that the mother should pay 80% of the father's costs of and incidental to the father's application for costs.
For the sake of clarity, and for the purposes of calculating the costs to be paid by the mother, I will record that the substantive proceedings should be deemed to have commenced with the filing of the mother’s application initiating proceedings on 4 August 2010. I recognise, however, that ─ in a practical sense ─ the proceedings had their genesis in the father’s contravention application filed on 11 August 2009.
The actual orders that I propose to make are as follows:
a)The mother must pay the father's costs of and incidental to the proceedings ─ such proceedings to be deemed to have commenced with the filing of the mother’s application initiating proceedings on 4 August 2010 ("the Costs").
b)In addition, the mother must pay 80% of the father's costs of and incidental to the father's application for costs made subsequent to the completion of the trial ("the Additional Costs").
c)In the event of the parties failing to agree upon the quantum of the Costs and the Additional Costs by 4 p.m. on 23 November 2012, and pursuant to Part 21 of the Federal Magistrates Court Rules 2001, the Costs and the Additional Costs be referred for taxation under Chapter 19 of the Family Law Rules.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Walters FM
Date: 12 October 2012
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