MARSDEN and DERBY

[2018] FCWA 167

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: MARSDEN and DERBY [2018] FCWA 167

CORAM: DUNCANSON J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 30 AUGUST 2018

FILE NO/S: PTW 4807 of 2013

BETWEEN: AND

MR MARSDEN

Applicant

AND

MS DERBY

Respondent

Catchwords:

COSTS - Parenting Issues - Case turns on its own facts

Legislation:

Family Court Act 1997 (WA) s 237

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms S Tan
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	O'Sullivan Davies
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Collins and Collins (1985) FLC 91-603

Fitzgerald v Fish (2005) 33 Fam LR 123

I and I (No 2) (1995) FLC 92-625

Kohan and Kohan (1993) FLC 92-340

Madin v Palis (Costs) (2016) 55 Fam LR 59

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

INTRODUCTION

1The father, [Mr Marsden] seeks an order for costs arising from proceedings for the enforcement of parenting orders. The mother, [Ms Derby] opposes the order sought.

BACKGROUND

2The proceedings concern the child, [A], born [in] 2009. A lives with the mother in Perth. The father lives in [Sydney].

3On 22 January 2015 Walters J made parenting orders by consent. The orders relevantly provide, that A live with the mother and spend time with the father in Perth including the third weekend of each calendar month, and for 20 consecutive nights during the 2016/2017 December school holidays.

4The father was formerly in a relationship with [Ms V]. The father and Ms V have two children.

5On 19 October 2016 Ms V obtained an interim intervention order against the father, protecting herself and their two children. The father lodged an objection to a final order.

6A was due to spend time with the father from 18 to 21 November 2016. The mother's husband emailed the father to the effect that A would not be provided into his care for the weekend or again until the matter of the intervention order was resolved.

7On 13 December 2016 the father filed an application in a case seeking to enforce the said consent orders. Specifically he sought an order that in the event the mother did not facilitate the delivery of A, a recovery order issue. The mother opposed the application.

8On 21 December 2016 I ordered that the mother cause A to be delivered to the paternal grandmother, and in the event of the mother's non-compliance a recovery order issue. I ordered that A's time with the father be supervised by the paternal grandmother. I made other orders including an order for A to have telephone communication with the mother and an order that the mother file an initiating application.

9On 14 February 2017 the father filed an application in a case seeking to discharge the orders for supervision and telephone communication. The mother filed a response on 30 May 2017 seeking that the order for supervision remain in place until the father completed a parenting course and an anger management course. She also sought to have the order for filing documents discharged.

10On 2 June 2017 I discharged the orders for supervision, telephone communication and the filing of documents. I ordered that the father complete a parenting course.

THE ORDERS SOUGHT

11The orders sought by the father are contained in his submissions as to costs filed 29 June 2017. If indemnity costs are ordered, he seeks that the mother pay his costs in the sum of $13,812.15 being an approximation of his actual costs of and incidental to the interim application in December 2016 (including GST) until the conclusion of the hearing on 2 June 2017. If party/party costs are awarded he seeks that the mother pay his costs in the sum of $9,104.83.

12The mother filed a response to the father's submissions on 27 July 2017.

THE LAW

13Section 237(1) of the Family Court Act 1997 (WA) ("the Act") provides that, subject to s 237(2), each party to proceedings shall bear his or her own costs. Section 237(2) provides that if the Court is of the opinion there are circumstances that justify it in doing so, the Court may, subject to s 237(3), make such orders as to costs as it considers just. Section 237(3) provides as follows:

In considering what order (if any) should be made under subsection (2), the court must have regard to -

(a)the financial circumstances of each of the parties to the proceedings; and

(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; and

(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; and

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court; and

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings; and

(f)whether a party to the proceedings has made an offer in writing to another 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.

14The Full Court of the Family Court of Australia in Collins and Collins (1985) FLC 91-603 described the discretion conferred by equivalent provisions contained in s 117 of the Family Law Act 1975 (Cth) as being a "broad" one, and noted that the s 117(2A) factors are not to be read in a restrictive way. The Full Court said in I and I (No 2) (1995) FLC 92-625 at 82,277, 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". The Full Court in Fitzgerald v Fish (2005) 33 Fam LR 123 also made clear that any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs.

15It is necessary for me to take into account all of the relevant matters in s 237(3) and balance them to determine whether the overall circumstances justify making an order as to costs.

INDEMNITY COSTS

16The usual rule is that costs are awarded on a party/party basis. Indemnity costs orders are "a very great departure from the normal standard" (Kohan and Kohan (1993) FLC 92-340).

17The Full Court has observed with respect to applications for indemnity costs that they should only be made and will only be ordered "in the most extreme cases" (Madin v Palis (Costs) (2016) 55 Fam LR 59).

(a) the financial circumstances of each of the parties to the proceedings

18The mother annexes to her submissions, correspondence from the Child Support Agency dated 8 and 10 June 2017, which states the father's income for the 2015/2016 year was $245,882 and the mother's was $27,520. The mother estimates her income for the 2016/2017 financial year to be $27,785, plus child support of $10,793.

19The father submits that in 2011 the parties entered into consent orders finalising financial matters between them, whereby the father made a cash payment to the mother of $180,000 and, each party retained certain personal assets. The father pays $415 per fortnight child support. He submits the mother remarried in March 2014 and resides with her husband in a home owned by him in [Suburb A].

20The father's position is that the mother is able to meet a costs order. He submits in the event the mother claims an inability to meet a costs order made against her, the Court should note various matters including that the mother receives financial support from her husband in addition to working part-time. The father says he contributes financially to A's welfare in accordance with a binding child support agreement, but the mother does not contribute towards the travel cost of A spending time with him in Sydney. The father says the mother has in the past instructed three firms of solicitors and was able to meet legal costs of $120,000 to $130,000 prior to the 2015 consent orders.

21The mother submits that the prior binding child support agreement has expired and the father now pays the minimum child support required by the Child Support Agency. She says she and her husband meet all other costs associated with A's care and upbringing. As to the mother's previous capacity to pay legal fees, she says that prior proceedings have now exhausted the financial settlement.

22The mother may have difficulty meeting a costs order; however, the apparent inability to pay costs is not a bar to a costs order being made where the order is otherwise warranted.

(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

23Neither party was in receipt of assistance by way of Legal Aid.

(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

24The father says the mother was given an opportunity to file an initiating application as she alleged there was a risk to the child, however she chose not to do so and subsequently sought to discharge the order requiring her to file. The mother says in seeking to discharge the order to file, she sought not to prolong or delay the proceedings.

25The father says the mother's affidavit totalled 100 pages, much of which canvassed allegations made against him prior to the 2015 consent orders, and was of little relevance to her time with the father pursuant to those orders.

26The mother says her concerns are relevant and included the circumstances surrounding the intervention order protecting the father's former partner and their children.

27The relevant conduct here is the mother's conduct as a litigant. The mother's affidavit annexed a number of documents which were historical, however the matters to which she deposed clearly addressed the immediate issue which was the intervention order granted against the father and her knowledge of the circumstances surrounding it.

28This is not a circumstance justifying an order as to costs.

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court

29The proceedings were necessitated by the mother's failure to comply with orders of the Court. The father filed his application for delivery of A and a recovery order because the mother proposed to withhold her. However, the mother was concerned about A's welfare by reason of the intervention order which she described as a changed circumstance. The mother sought information from the father about the intervention order, her concern being that the father's two other children were protected by it.

30The father was entitled to require the mother to comply with parenting orders. On the other hand, the mother's concerns had foundation. It was necessary for the Court to make an assessment of risk at the hearing and then make orders which were in the best interests of A.

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings

31The father says the main issues in dispute in the December 2016 hearing were whether A should spend time with him in accordance with the 2015 consent orders, and whether a recovery order should be granted to facilitate this. He further says the main issue at the June 2017 hearing was whether the supervision requirement should be lifted. The father submits he was wholly successful and the mother was wholly unsuccessful as to those issues.

32The mother was not wholly unsuccessful in the proceedings. The order sought by her that A's time with the father be supervised was made. The order sought by her that the father undertake a parenting course was also made.

(f) whether a party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings and the terms of any such offer

33Annexed to the father's submissions is a letter to the mother dated 2 March 2017 offering to settle the proceedings on the basis that the supervision requirement be lifted and the mother pay part of the father's legal costs incurred as at that date in the sum of $10,000. By email to the father's solicitor dated 8 March 2017 the mother declined the offer.

34The mother says her decision to withhold A was communicated to the father by email. She submits that in effect, she made an offer that the decision be temporary and the outcome be based on the outcome of the intervention order proceedings, which the father did not accept. I am not persuaded that the mother's communication that she did not intend to comply with orders for a period of time amounts to an offer to settle the proceedings.

35The mother rejected the father's offer that she pay $10,000 towards his costs. The father's party/party costs now sought are less than the costs sought in the offer upon which he relies.

(g) such other matters as the court considers relevant

36The father submits that in the event the mother's conduct outlined previously is not considered to come within the scope of s 237(3)(c), the Court should take it into account here. He refers to expenses he incurred by way of flights and accommodation for A to spend time with him when the mother did not make her available to him.

37The mother refers to the financial settlement she received in 2011 being reduced by legal fees in circumstances where the father allegedly threatened to "make sure that every cent of it would be consumed by legal fees".

38I do not consider these or any other matters to be relevant.

CONCLUSION AS TO COSTS

39Taking all of the above matters into account and balancing them and in the exercise of the broad discretion which I have, I decline to make an order for costs.

THE ORDERS

1The application for costs be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
ASSOCIATE

30 AUGUST 2018