MAR & ACD & RFR & SP& JMP & the NSW DEPARTMENT of COMMUNITY SERVICES

[2002] FamCA 377

[2002] FamCA 377

FAMILY LAW ACT, 1975

FAMILY COURT OF AUSTRALIA
  No NC 1297 of 2000
AT NEWCASTLE  

IN THE MATTER OF:         MAR (Applicant Father)

AND:  ACD   (Second Respondent)

AND:                RFR   (Respondent Mother)

AND:  SP& JMP     (Respondent Maternal Grandparents)

AND:  THE NSW DEPARTMENT OF COMMUNITY SERVICES

(Intervenor)

CORAM:  The Honourable Justice Mullane

Date of Hearing:                   4 February 2002

Date of Judgment:                6 February 2002

JUDGMENT OF THE COURT

Appearances:

Ms Katie Smith of Messrs Katie Smith, Solicitors, DX 8802, Woy Woy, appeared for the Applicant Father (MAR)

There was no appearance by Messrs Rod Powe & Associates, Solicitors, DX 21623, Maitland, for the Respondent Mother (RFR)

Mr Andrew A. Torok, Solicitor, Suite 811, 8^th Floor,185 Elizabeth Street, Sydney, 2000, appeared for the Second Respondent (ACD)

Mr Maurice of Counsel instructed by Messrs Eleanor Murphy & Company, Solicitors, DX 12037, Bondi Junction  appeared for the respondent maternal grandparents (SP & JMP)

Mr Sullivan of Messrs Mullane & Lindsay, Solicitors, DX 7865, Newcastle appeared for the Children’s Representative

Mr Foat of Messrs Burgess Foat, Solicitors, DX 4320, Newcastle West appeared for the Department of Community Services

MAR & ACD & RFR & SP and JMP & The NSW Department of Community Services

NC 1297 of 2000

NC 1297 of 2000.

Appeal No:

 

SUMMARY

From the sittings of the Family Court of Australia at

Newcastle in the week commencing 4 February, 2002.

 

MAR & ACD & RFR & SP and JMP & The NSW Department of Community Services

NC 1297 of 2000

NC 1297 of 2000.

Appeal No:

 

SUMMARY

From the sittings of the Family Court of Australia at

Newcastle in the week commencing 4 February, 2002.

 

Coram: Mullane J

Heard: 4 February, 2002

Judgment: 6 February, 2002

COSTS – Security for costs – Merits of substantive application – Expert evidence – In order to determine an application for security for costs, where no other relevant evidence is available, regard may be had to the Family Report ordered in the substantive proceedings – Consideration of the Family Report acceptable despite no affidavit material being filed in the substantive proceedings - Family Law Act (Cth) 1975, s117(2), s117(2A) - Luadaka and Luadaka (1998) FLC 92-830 cited; Jackson and Hamer (1993) FLC 92-419 not followed.

This was an application, by the fathers’ of two children born to the mother, for security for costs of proceedings (“the substantive proceedings”) brought by the maternal grandparents of the children in which they sought orders for contact with the children.  The NSW Department of Community Services had intervened in the substantive proceedings.

Background

At some stage in the substantive proceedings allegations of sexual abuse of the children were raised.  Orders were made for the appointment of an expert and the preparation of a Family Report.  That report was prepared and available at the date of hearing of the application for security for costs. 

The issue

In determining an application for security for costs could the Court have regard to the Family Report prepared by a Court appointed expert?

Held, dismissing the application for security for costs and making no order as to costs:

1. When determining an application for security for costs the Court is required, by ss.117(2) of the Family Law Act 1975 (Cth) (“the Act”), to have regard to the matters listed under ss. 117(2A) of the Act.

1. Pursuant to ss. 117(2A)(g) of the Act the merits of the substantive application were an issue for consideration, when determining the application for security for costs.

1. When determining the merits of the substantive application, for the purposes of the application for security for costs, the evidence in the Family Report, subject to certain limitations, may be considered.

1. Whilst the concerns of Butler J in Jackson and Hamer (1993) FLC 92-419 are valid, those concerns did not require the Court to disregard a report by a Court Counsellor or Court Expert, where there was no other relevant evidence available.

1. Although the parties’ had not filed, at the time of hearing of the application for security for costs, any affidavits in respect of the substantive application, if the Family Report was not read as part of the evidence, in the application for security for costs, there could be no real assessment of the merits of the maternal grandparents’ substantive application.

1. Accordingly, the Family Report was admitted into evidence.

1. Notwithstanding the adverse findings in the Family Report regarding the merits of the substantive application, the Court was not satisfied that it is necessary to provide either of the fathers with security for costs.

Fathers’ application for security for costs dismissed.  No orders as to costs.

REPORTABLE

SECURITY FOR COSTS

1. The fathers seek an order that Mr & Mrs P provide security for each father in respect of the costs of the 6 day hearing to commence in March.

1. At the outset it should be noted that Mr Maurice, Counsel for Mr & Mrs P, informed the Court in submissions that it appears the only witnesses in his clients’ case would probably be the clients themselves and possibly Dr Rickard-Bell, a psychiatrist.  He submitted that it is likely that the only other witnesses will be the 2 fathers and Dr Wotton.  The matter was originally set down for 6 days.  Mr & Mrs P had indicated an intention to call 8 witnesses.  Mr Maurice submitted that it is likely the matter will be concluded in 3 days.

1. The Court is required by subsection 117(2) to have regard to the matters under subsection 117(2A) in determining whether to make a order for security for costs.  The Full Court of the Family Court of Australia in Luadaka and Luadaka (1998)FLC 92-830 at 85,507 held:

   The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other.

2. Their Honours then referred to a series of matters that the Court might take into account pursuant to paragraph 117(2A)(g) of the Act as: “Such other matters as the Court considers relevant”. Those were:

a)The means of the respondent to the application to satisfy an order for costs if he or she is unsuccessful

b)The prospects of the respondent to the application succeeding in the proceedings

c)Whether the claim in the proceedings of the respondent to the application “is made bona fide, whether it is genuine or not trivial, vexatious or a sham”.

d)Whether an order for costs would be “oppressive or stifle the litigation”

e)Whether or not the litigation may involve a matter of public importance

f)Whether or not there has been delay in bringing the application, causing prejudice to the respondent to the application

g)The amount of costs likely to be incurred

h)Any difficulties likely in enforcing an order for costs.

1. Their Honours held that this list was not exhaustive and there may be other matters to be taken into account under Paragraph 117(2A)(g).

1. As regards the issue of the prospects of success of the person from whom security is sought, their Honours said that ordinarily the Court would not undertake a detailed assessment of the likelihood of the applicant’s success “unless it can be demonstrated that there is a high probability of success or failure”.  They said, “This is because of the lack of material at the time the application is dealt with.  However, such an assessment may be possible in circumstances where … affidavits have been filed in which the case sought to be made out is set out.”

1. The  Court now considers the following relevant matters:

a)The financial circumstances of each of the parties as referred to earlier in the ex tempore judgment regarding costs in connection with the dismissal of the interim contact applications of Mr & Mrs P.

b)The fact that the only party to the proceedings in receipt of assistance by way of legal aid is the Children’s Representative and the ceiling for the grant has already been exceeded.

c)The conduct of Mr & Mrs P in the proceedings by way of the bringing of an application for interim contact and the continuing of the application in circumstances where it appears it had no prospect of success, they were not willing to have it brought to a hearing, and it was dismissed for want of prosecution.  In addition there is the conduct of Mr & Mrs P in being unwilling to attend for interview by Dr Wotton from when they were ordered to do so on 26 March until the Judgment of Justice Purdy was delivered on 19 June.  This probably caused delay in the proceedings.

d)Mr & Mrs P have been wholly unsuccessful in their application for an interim order for contact and also their application which was dismissed by Justice Purdy.

e)The following additional matters:-

i)        Mr & Mrs P apparently have the means to satisfy an order for costs against them in favour of the other parties if they are unsuccessful.  I make this conclusion on the basis that the hearing is unlikely to extend beyond 3 days and that if a costs order was made against them requiring them to pay the costs of each of the other parties, the costs paid are unlikely to exceed an average of $15,000 per party and $75,000 in total.

ii)       There is no evidence to suggest that Mr & Mrs P are likely to conceal or dispose of assets in order to avoid a liability under a costs order.

iii)      There is no evidence to establish that Mr & Mrs P are not bona fide in their application for contact with the children or that their application is trivial, vexatious or a sham.

iv)       If an order for security for costs were made in respect of the costs of the hearing, then it is unlikely to exceed a total of $75,000.  Such an order would not stifle the litigation.  The evidence is that Mr & Mrs P have liquid savings of about $4,000, $25,000 invested in Hatmax Investment Trust, and shares worth $199,476.  An order for security for costs could not therefore be seen to be likely to stifle the litigation or to be oppressive to them.

v)         On the other hand, there is no evidence by the fathers or the Department of Community Services that if an order for security for costs is not made, the result will prevent legal representation of any of them or stifle the preparation of any of their cases. Neither father has given evidence that his legal representatives will not continue to act on his behalf if security is not ordered.

vi)       It cannot be said that the applicants for security have unreasonably delayed in bringing the application as it was obvious they awaited the final report of Dr Wotton before bringing the application, which was clearly reasonable. 

vii)      Counsel for Mr & Mrs P submitted that if the security order is made and ultimately Mr & Mrs P succeed and are not liable to pay the costs of the other parties of the hearing, there would be an injustice to them by depriving them of the income on the funds used as security.  Given the close proximity of the hearing and the possibility for the security chosen to bear interest pending the outcome of the hearing, this submission is of little weight. 

1. The merit of the application of Mr and Mrs P for contact with the children is another relevant matter. Counsel for Mr & Mrs P relied upon the decision of Justice Butler in Jackson and Hamer (1993) FLC 92-419 where (at p.80,304) his Honour held that in considering the merits of an application where the respondent sought security for costs of the hearing, he should not consider the evidence in a Family Report prepared by a counsellor. His Honour said:

   Although in custody proceedings Counsellors occupy a significant position different to the adversarial proceedings in other Courts, namely their evidence is provided by neither party and is generally not subject to testing against reports of other experts in the field, that is not to say that a Counsellor’s evidence is always accepted, wholly, partly or at all.  Without slighting the significant role of Counsellors in the exercise of the Family Court jurisdiction, often there are circumstances surrounding custody or access applications unseen by the Counsellor, or of which they are unaware;  yet those circumstances may bear on the Counsellor’s observations, and may require the Court to see the Report differently than as presented.  In this respect Judges of the Family Court have the distinct, important and necessary advantage in having all the evidence fully tested, whereas Counsellors usually see and refer to only a part of the relevant matters.  Therefore there are instances, not necessarily rare, where the Court may only partially accept the evidence of the Counsellor, or may not accept it at all, or may reject it.  Accordingly, until the case is heard to its conclusion, it is not possible to rely upon the Counsellor’s report and it occupies the same position as the evidence of any other witness.  This is so, even if the report is as to the children’s wishes only, and is in the absence of any other independent evidence on that point.  It cannot be assumed a report as to the children’s wishes will ultimately have great or important weight, as other facts may weigh in to require the Court to disregard or over-rule the children’s wishes.  I find it inappropriate to consider the Counsellor’s report standing alone in this application.

2. In these proceedings, the applicants for security rely upon findings of the Court in 2 interim proceedings and the fourth and final report of Dr Wotton released on 10 January.  The parties have until 11 February for the filing of their affidavits.  None of the parties has relied upon any affidavits filed for the hearing.  Although they have filed affidavits specifically for this application, the material in those affidavits does not address the question of the merits of the contact application of Mr & Mrs P.

1. Counsel for Mr & Mrs P submitted that I should follow the view expressed by Justice Butler in Jackson and Hamer and not rely upon the contents of the report of Dr Wotton.

1. Dr Wotton may have been in a different position to the Counsellor in Jackson and Hamer.  Dr Wotton was first appointed as Court Expert in the proceedings in August 2000.  He then proceeded with interviews of the children and the 3 parents.  His report was released in time for the hearing in February 2001.  Since then he has been involved in monitoring the psychiatric treatment of the 2 children, their care arrangements, and the preparation of 2 further reports, including his most recent report, which followed a 2 hour interview with Mrs P on 7 August, a 1 hour interview with Mr P on 28 August, and an interview of 1¼ hours of both of them on 28 August. 

1. Counsel for Mr & Mrs P told the Court that it is still uncertain as to whether a psychiatrist, Dr Rickard Bell will be called upon to give evidence in their case.  Dr Wotton is a Psychiatrist and it is in that capacity that he is the Court Expert.  There was no submission on behalf of Mr and Mrs P that there is any psychiatrist who will be giving expert psychiatric evidence which is more favourable to them than the opinions of Dr Wotton.

1. Subject to the Court being wary of the fact that at this stage no affidavits have been filed and one cannot anticipate what evidence the applicants might adduce, I have serious concerns that if Dr Wotton’s report is not read as part of the evidence on this application, there will be no real assessment of the merits of the application by Mr and Mrs P and the Court will probably be guided by the fact that Dr Wotton in his first report recommended there be no contact by the children with Mr & Mrs P, albeit without having interviewed Mr & Mrs P, and the Court made an order to that effect, which is still in force. 

1. Whilst the concerns Justice Butler expressed in Jackson and Hamer are valid concerns that the Court must have reaching any assessment of the merit of a parties’ application, I do not share his view that such concerns require the Court to disregard a report by a Court Counsellor or Court Expert, even when there is no other relevant evidence available.  The limitations of any assessment of the merits must be acknowledged, but in my view this should not prevent the Court from having regard to relevant evidence to make such an assessment.

1. Accordingly, the report of Dr Wotton is admitted to evidence.

[His Honour then proceeded, in paragraphs 16-29, to examine, in detail, the report of Dr Wotton, before continuing:-]

1. The relevant material before the Court to gauge the merits of the applications of Mr & Mrs P is the report of Dr Wotton.  Any estimation of the merits of their application must be qualified by acknowledging that the Court has not seen any evidence in their case.

1. It must be acknowledged that the material which is available now suggests that they are unlikely to succeed with their application regarding B and their prospects in relation to the application concerning M are very limited.

1. The evidence does not establish that an order for costs is necessary to ensure legal representation of the fathers at the hearing, nor to ensure recovery of costs by the fathers from Mr and Mrs P if their contact application is unsuccessful and they are ordered to pay the costs of the other parties.  There is no demonstrated  risk of injustice to the other parties if security is refused.

1. Notwithstanding the adverse evidence regarding the merits of the contact application, on all the material the Court is not satisfied that it is necessary to provide either of the fathers with security for costs in order to avoid an injustice to one of them if Mr & Mrs P are unsuccessful in their application. 

1. Accordingly, the further order is:

1. The applications of MAR filed 29 January 2002 and of ACD filed 4 February 2002 so far as they seek orders for security for costs are refused and dismissed.

____________________

The Hon Justice Mullane