Mansell and Mansell - [2012] FMCAfam 996

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANSELL & MANSELL

[2012] FMCAfam 996

FAMILY LAW – Whether costs in previous application can be taken into account – whether husband’s conduct in proceedings should be taken into account.

Family Law Act 1975 (Cth), ss.117, 118
Federal Magistrates Court Rules 2001 (Cth), r.21.02(1)

Applicant:

MR MANSELL

Respondent:

MS MANSELL

File Number:

DGC 2949 of 2008

Judgment of:

Phipps FM

Hearing date:

18 May 2012

Date of Last Submission:

18 May 2012

Delivered at:

Dandenong

Delivered on:

14 September 2012

REPRESENTATION

Counsel for the Applicant:

Ms Bowden

Solicitors for the Applicant:

JDB Law

The Respondent appearing in person:

ORDERS

The wife’s application for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Mansell & Mansell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 2949 of 2008

MR MANSELL

Applicant

And

MS MANSELL

Respondent

REASONS FOR JUDGMENT

Ms Mansell, the wife, applies for orders that Mr Mansell, the husband, pay all or some of her costs of two proceedings concerning their children [X] born [in] 1998 and [Y] born [in] 2001.
The first is an application commenced by the wife on 20 April 2010 in which she applied to discharge those parts of the order made on 23 April 2009 which provided for the children to spend time with the husband. The husband did not defend those proceedings. They concluded with an order on 8 June 2010 which discharged all previous orders, provided for the wife to have sole parental responsibility for the children, that they live with her and reserved the question of the children's time and communication with the husband.
The second is an application commenced by the husband on 13 December 2010. The wife defended those proceedings and an Independent Children's Lawyer was appointed and participated. The proceedings concluded, except for questions of costs, with a consent order on 27 March 2012. That order provides for the discharge of previous orders and for the wife to have sole parental responsibility for the children with a requirement that the wife notify the husband of long term decisions concerning school and medical matters and to arrange and attend mediation with the husband with respect to those decisions. The order provides for the children to live with the wife, that the husband's time with [X] be as agreed between [X], the husband and the wife and that [Y] spend time with the husband at gradually increasing times leading up to six hours between 10.00am and 4.00pm on Sunday 1 July 2012 and Sunday 15 July 2012 and each alternate Sunday thereafter.
Section 117 of the Family Law Act 1975 (Cth) is the costs provision. Subsections (4), (4A) and (5) are not relevant to this proceeding:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(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 wife argues that the relevant paragraphs of subsection (2A) are (a) the financial circumstances of the parties, (b) the conduct of the parties, (c) failure to comply with a previous order, (e) whether any party has been wholly unsuccessful and (g) other relevant matters.
The parties married [in] 1991, separated in early 2003 and were divorced on 6 August 2006. As well as the orders in 2010 and 2011 orders were made on 18 September 2006 and 23 April 2009. The order on 18 September 2006 was a consent order which provided for the children to live with the wife and spend time with the husband each alternate weekend from after school Friday to the commencement of school Monday and on each Wednesday from after school to the conclusion of sporting activities or 7.00pm.
The order of 23 April 2009 was by consent except for overnight time on Wednesdays. It provided for the children to live with the wife and spend alternate weekends with the husband from after school on Friday until before school on Monday, each week from after school Wednesday until before school on Thursday, half school holidays and the various celebratory occasions.
In the current proceeding final orders were made by consent and so there was no trial and no testing of the evidence. Some limited cross examination took place during the costs hearing, otherwise any findings of fact have to be drawn from the affidavits, the memorandum of the family consultant made after a consultation ordered under s.11F and the family report, bearing in mind that there has been no cross-examination.
The relationship between the parties and arrangements for the children progressed satisfactorily for a number of years but then deteriorated so that by late 2009, the parties had no ability to communicate. [X] was not spending time with his father and [Y] was, according to his mother, showing some opposition to spending time with his father. Both parties had repartnered, and the family report shows that both boys disliked the father’s partner. [Y] had behavioural problems.
In November 2009 the husband’s partner assaulted the wife and after that [Y] did not spend time with his father until 2011 when the initial interim orders were made in this proceeding. On 27 November 2009 the wife obtained a final Family Violence Intervention Order against the husband's partner in which the aggrieved people were the wife and the two children. This order was for 12 months. This meant that, in the absence of an order permitting it, for the children to spend time with the husband his partner could not be present.
On 27 November 2009, after the making of the intervention order the wife’s solicitor wrote to the husband stating that it was necessary to suspend the boys time with him until the situation calms. In an email on 10 February 2010 to the solicitor the husband alleged that the wife was in breach of the existing order. The email had some abusive passages.
The wife’s house and car were vandalized in December 2009 and January 2010 with white paint and the wife says she cannot think of anyone apart from the husband and the husband's partner who would do it. She says that because of the lack of communication between her and the husband she asked her partner to propose [Y] spending time with the husband. There was then an unfortunate email exchange in February in which the wife's partner sent an email to the husband proposing some limited time in the absence of the husband's partner, expressed in the email as "free of encumbrances". This brought an abusive reply from the husband. His position was that the children should be spending time with him in accordance with the 23 April 2009 orders, that is 5 nights a fortnight. He said in his evidence in the costs hearing that he considered that situation was the fault of the wife and that it was a repetition of events which had happened earlier.
The wife then went to a Family Relationship Centre to arrange mediation but the husband declined to participate. She then commenced the proceedings on 20 April 2010 which concluded with the undefended hearing on 8 June 2010 and an order containing no specific provisions for the children to spend time with the husband.
The husband was aware of these proceedings and deliberately decided not to participate. In his evidence in the costs hearing he said that because of the intervention order the children could not spend time with him in his home unless his partner was absent and he considered this unreasonable and so he decided to wait until the intervention order expired before taking any steps toward spending time with the children.
The husband commenced proceedings on 13 December 2010. The wife filed a response on 27 January 2011. On 2 February 2011 I ordered the appointment of an Independent Children's Lawyer and ordered that the parties attend a Child Dispute Conference with a family consultant on 14 February 2011 and adjourned the application to that day.
In the Child Dispute Conference [X] told the family consultant that he did not want to spend time with his father. He spoke of the father’s partner’s aggressiveness towards him and his brother. He said he would not feel safe in the care of his father and his partner. [Y] refused to be interviewed by the family consultant. At that time the family consultant says it was suspected that [Y] had Asperger's Syndrome but a formal diagnosis had not yet occurred.
The husband proposed supervised time on a monthly basis at a contact centre with [X], provided [X] was agreeable. In relation to [Y] he proposed alternate Sundays between 1.00pm and 4.00pm I made orders on that day for [Y] to attend for an assessment of any health or mental health issues that he might have and that the father be permitted to telephone [Y] at 5.00pm each Wednesday. The application was adjourned to 2 May 2011.
On 2 May 2011 the parties agreed on a consent order for the father to spend supervised time with [Y] and, subject to [X]'s wishes, with him at a contact centre. I ordered the preparation of a Family Report.
The Family report was prepared and on 17 October 2011 the application was fixed for final hearing on 27 March 2012 and directions given which included an agreed order that the parties participate in a mental health assessment by Dr N.
On 27 March 2012 the parties reached agreement and completed the proceedings with a consent order. That order, already described in paragraph 3, provides for the discharge of previous orders and for the wife to have sole parental responsibility for the children with a requirement that the wife notify the husband of long term decisions concerning school and medical matters and to arrange and attend mediation with the husband with respect to those decisions. The order provides for the children to live with the wife, that the husband's time with [X] be as agreed between [X] the husband and the wife and that [Y] spend time with the husband at gradually increasing times leading up to six hours between 10.00am and 4.00pm on Sunday 1 July 2012 and Sunday 15 July 2012 and each alternate Sunday thereafter.
The wife owns a house which she estimates is worth $500,000. It has a mortgage of $194,000. Her taxable income for the year ended the 30 June 2010 was $24,055 and for the year ended the 30 June 2011 $22,291. She works as a [omitted]. From the beginning of this year she has increased her working hours to five days a week and 34 hours. Previously she was working 15 to 20 hours per week.
She estimates her gross weekly salary or wages at $1,071. She receives $52 family tax benefit, $57 carers allowance and $277 per week child-support.
The husband owns a residence described as an investment property because he has it rented. He says he bought it to live in but is renting so that he lives closer to the children. He estimates its value as $390,000 and there is a mortgage of $259,000. He has $48,000 in superannuation.
The husband’s gross weekly salary is $1,381 and he receives rent of $334.00 per week but that is offset by his mortgage repayment. He pays rent of $212 a week, $107 a week for superannuation and has normal living expenses.
The wife’s argument is that the husband's behaviour prior to and subsequent to the ceasing of contact in late 2009 unduly protracted proceedings. She argues that the husband did not comply with provisions in the 2009 orders designed to deal with difficulties. He attended once only on Ms T. He did not continue attending sessions with Ms H. He did not participate in the proceedings commenced by the wife in 2010 and took no steps until the end of 2010 so that there was a break of more than 12 months in his seeing his two children which meant that the children’s reintroduction to him was made more difficult and he did not attend the Family Relationships Centre when invited.
The husband gives an explanation for all of these things. He did not attend after the first meeting with Ms T because he considered that the wife's behaviour was as it always had been, that matters had to be done her way and no other way. Ms T’s notes of the meeting record the parties could not agree on a list of issues to be discussed. He did not attend the family relationship centre because he saw no prospect of agreement. He did not participate in the proceedings commenced in April 2010 and he waited 12 months before making an application himself because the intervention order against his partner naming both the wife and the children meant that he could not have the children overnight at his home unless his partner was not there, something he considered unreasonable. His argument is that late 2009 was yet another occasion when the wife stopped his time with the boys. He considered there was no prospect of agreement. He did not seek legal advice because he could not afford more legal fees. He had paid legal fees in earlier proceedings. In particular he says that at the meeting with the family consultant in early 2011 he proposed three hours a week with [Y], the ultimate result.
Much is in dispute but one thing is clear, that is, the high level of conflict between the parties. The family report prepared by Ms S dated October 2011 has repeated references to this conflict. The report refers to "a very high level of conflict", "no effective means of communication", “a long history of conflict" and several references to "chronic conflict". The two children have numerous problems, including some self harming behaviour by one of them. Ms S attributes much of their problems, including rejection of their father, to the conflict between their parents. Ms S notes that the children did not like the father's partner because of her treatment of them and because she had assaulted their mother. They refused to have anything to do with their father's partner and blamed him for not standing up for them.
Time between the father and the children was not proceeding smoothly in the latter part of 2009 but the catalyst for events leading to the last rounds of litigation was the assault of the mother by the husband's partner and the subsequent family violence intervention order. The mother's solicitor then wrote to the father saying that the children's time with the father was suspended and inviting negotiation. There had been previous litigation and the father’s reaction to the solicitor’s letter was that yet again the mother was restricting his time with the children.
Rule 21.02(1) of the Federal Magistrates Court Rules 2001 (Cth) provides that an application for a costs order may be made:
a)At any stage in the preceding; or
b)Within 28 days after final decree or order is made; or
c)Within any further time allowed by the court.
The final order in the application filed by the wife on 24 April 2010 was made on 8 June 2010. The wife did not apply for costs when the order was made and there was no reservation of a costs question. The costs application is before the court pursuant to the order of 27 March 2012 where the final consent parenting orders were made and the wife's application for costs was fixed for hearing on 18 May 2012 and directions given for the filing of affidavits and financial statements. The order is for the hearing of the costs question of the proceeding commenced by the husband on 13 December 2010.
The application for costs of the earlier proceeding is included in the submissions put by the wife’s solicitor at the hearing of the cost application. It is an oral application for costs. There was no separate application for extension of time to bring a costs application. When I raised this with the wife's solicitor she submitted that it could be dealt with as any other relevant matter under s.117(2A)(g).
To treat the oral application as including an application for an extension of time would be unfair to the husband particularly when he is self represented. There may be grounds for arguing that there should be an extension of time but the husband has not had the opportunity of hearing those arguments and having the opportunity to answer them.
Even if there was an extension of time I would not be inclined to make an order for costs in the first proceeding. Both the interim and final orders sought by the wife in the application commenced on 14 April 2010 was a discharge of the paragraphs of the order of 23 April 2009 which provided for the children to spend time with the husband. She did not propose any orders in substitution, so she was proposing the husband spend no time with the children.
The wife’s solicitor submitted the costs in the April 2010 application could be dealt with as a matter relevant to costs in the later application. An earlier application and order may be relevant on the question of costs in a subsequent application but the costs of the earlier application cannot be decided in the subsequent application. The proper process must be followed.
Even if they could be dealt with I would not make an order. The husband says he made a decision not to participate in those proceedings because he considered it unreasonable to have the children overnight when his partner could not be present. He decided to wait until that order expired in November 2010. He may have been mistaken in his view that the intervention order necessarily prevented an order for the children to stay overnight while his partner was present, but nevertheless, at that stage he did not intend opposing the order the wife was seeking. Perhaps he could have consented at an early stage and so the wife could have saved some costs, but I do not consider that is conduct which would justify an order for costs.
The second proceeding commenced in circumstances where the wife had ceased providing the children for time with the husband, initially [X] because he was not willing to go and then [Y] and [X] because of the assault by the husband's partner and later because orders for time were discharged. The husband commenced proceedings which went through the processes already described to an eventual conclusion with a consent order. Given the circumstances at the commencement of the proceeding, that is no contact between the children and the husband for a year or more, resistance by both children to seeing their father and the level of conflict between the husband and wife the application proceeded to a conclusion relatively expeditiously. There is nothing in the conduct of the husband in the proceeding which justifies an order for costs. He cooperated in the initial meeting with a family consultant and then consented to the preparation of the family report, he attended court hearings and he filed documents.

Events might have been different if the husband had attended more counselling sessions, had consulted a lawyer, commenced proceedings earlier or had participated in the first set of proceedings commenced by the wife. On the other hand they might not have been. It may be that given events and the level of conflict between the parties at the end of 2009, and the effect on the children, a period of time when they did not see their father was beneficial. It is not possible now to reach any conclusion about what might have been.
The other consideration is the party's financial position. The husband earns more than the wife. Both own residential property. The wife has a partner who has a powder coating business but the wife's evidence is that that is not making a profit. The wife has the majority of care of the children while the husband pays child support.
The relevant circumstances when taken together do not point to the wife being entitled to an order for costs. The application for costs will be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Phipps FM

Date: 14 September 2012