Martin and Floyd (No.2)
[2018] FCCA 362
•23 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTIN & FLOYD (No.2) | [2018] FCCA 362 |
| Catchwords: FAMILY LAW – Application for orders in respect of child aged ten years – proceedings between child’s father and maternal grandfather – child’s mother not formally involved in proceedings – earlier proceedings finalised following a three day trail in April 2012 – child ordered to live with maternal grandfather – outcome of proceedings subsequently subject to unsuccessful appeal in the Full Court – parties have difficult relationship – outcome of earlier proceedings remains controversial given placement of child in care of a non-parent – father sought to re-open proceeding after hiatus of four years – application of the rule in Rice & Asplund sought to be agitated by maternal grandfather at early stage – application refused and family report ordered – parties’ competing applications fixed for final hearing following receipt of family report –application for costs following withdrawal of application for final orders – notice filed approximately three months prior to final hearing – is it just to make orders – matters for consideration under section 117(2A) – any other relevant matter. |
| Legislation: Family Law Act 1975, ss.117(1), 117(2A) Federal Circuit Court Rules, rr.21.02; 21.10 |
| Cases cited: Rice & Asplund (1979) FLC 90-725 SPS & PLS [2008] FamCAFC 16 CDJ v VAJ (1998) FLC 92-828 Bennett & Bennett (1991) FLC 92-191 King & Finneran (2001) FLC 93-079 Garrett & Garrett [2013] FCCA 1811 Martin & Floyd [2012] FMCAfam 329 |
| Applicant: | MR MARTIN |
| Respondent: | MR FLOYD |
| File Number: | ADC 1204 of 2011 |
| Judgment of: | Judge Brown |
| Hearing date: | 6 February 2018 |
| Date of Last Submission: | 6 February 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 23 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Angel |
| Solicitors for the Applicant: | Rebecca Boreham |
| Counsel for the Respondent: | Mr Craney |
| Solicitors for the Respondent: | Doyle Kingston Swift |
ORDERS
The application for costs filed on behalf of the respondent is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Martin & Floyd (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1204 of 2011
| MR MARTIN |
Applicant
And
| MR FLOYD |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to an application for costs, following the formal withdrawal of an application for parenting orders, in the period leading up to a final hearing and following the release of a family report.
The parties to the proceedings are Mr Martin and Mr Floyd. They are respectively the father and maternal grandparent of [X] born (omitted) 2007. The parties have been engaged in litigation in respect of [X], since April of 2011.
On 16 April 2012, following a three day hearing in Broken Hill, I ordered that [X] live with the maternal grandfather who was to have sole parental responsibility for him.
At the time, I realised the father would be deeply distressed in respect of the allocation of parental responsibility in favour of a person who was not one of [X]’s parents. I made this significant decision on the basis of the endemic conflict between the parties and my view that it was likely to prevent them exercising parental responsibility, for [X], in any constructive way.
In addition, I determined that the child should spend time with his father on alternate weekends during term time from 5:00pm Friday until 5:00pm the following Sunday; together with half of each school holiday period.
[X]’s mother is Ms K. She has never taken any formal part in the court proceedings concerning [X]. In the past she has had some significant personal difficulties, which led to the maternal grandfather and his wife, Ms L, assuming [X]’s care when he was an infant.
[X] has lived with Mr and Ms Floyd since February 2011. From the father’s perspective, this arrangement is fundamentally wrong given [X] has a parent available to care for him – namely his father – who is both willing and happy to provide a home for him.
Mr Martin was young when he became a parent for the first time. He concedes that he was somewhat immature when [X] was born and so ill equipped to parent him. He has re-partnered. His partner is Ms S. He and Ms S have two other children, [A] and [B], who are half-siblings to [X].
From Mr Martin’s point of view, the outcome of the 2012 proceedings remains a sore point. As the years have passed, it has been his growing conviction that he, in conjunction with Ms S, are better placed to provide a home for [X] and it is more appropriate for this to occur, given his paternal relationship with [X] and the existence of the two half-siblings.
The orders of 16 April 2012 were subject to appeal in the Full Court of the Family Court. The appeal was brought by the father and was dismissed by the Full Court. Mr Martin funded both the trial proceedings and the subsequent appeal. He is not a wealthy person. This is indicative of the importance of these issues to him personally.
The case is one replete with powerful emotions. To say that there is significant antipathy between the Floyds on the one hand and Mr Martin and Ms S on the other would represent a significant understatement. Regrettably, the passing of time and the finalisation of the appeal has done little to reduce the tensions between the parties concerned and those associated with them.
The current proceedings
The father commenced the most recent round of proceedings on 3 August 2016. He sought orders that would have seen him and Mr Floyd sharing parental responsibility for [X] and the child living with each of them on a week about basis. At this stage, it was his position that the maternal grandfather had unilaterally withheld [X] from him, necessitating the resumption of proceedings after a significant hiatus.
Mr Martin’s application came on before Judge Kelly, in Broken Hill, on 15 August 2016. Her Honour directed that [X]’s time with his father should resume forthwith in accordance with the court’s order of 16 April 2016. The maternal grandfather was ordered to file answering documents within 28 days.
In his response filed on 21 October 2016, Mr Floyd sought the dismissal of the father’s application. It was his position that [X] had become increasingly anxious about spending time with his father and that there had been no improvement in the parties’ capacity to communicate effectively with one another.
The rule in Rice & Asplund
After a break of approximately five years, I reassumed responsibility for the court’s circuit to Broken Hill, in February of 2017 and the matter returned to my judicial oversight. At this stage, it was the maternal grandfather’s position that the court should dismiss the father’s application by means of the so-called rule in Rice & Asplund.[1]
[1] See Rice & Asplund (1979) FLC 90-725
The rule is an expression of the paramountcy principle. In all matters concerning parenting orders, the best interests of the child concerned is the paramount consideration. As the circumstances of the parties change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited. Otherwise to allow further applications on the basis of a change of circumstances alone would be likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.
The primary purpose of the rule is to prevent “endless litigation”[2] and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[3].
[2] See Rice & Asplund (supra) per Evatt CJ at 78,905
[3] See SPS & PLS [2008] FamCAFC 16 at paragraph 56
Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[4]
[4] Ibid at paragraph 58
Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children.
It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[5]
[5] See CDJ v VAJ (1998) FLC 92-828 at 85,449
The rule in Rice & Asplund is complex. It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances to justify the reopening of the parenting issues in respect of a child, which have earlier been determined as either a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[6]
[6] See Bennett & Bennett (1991) FLC 92-191 at 78,262
However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage. If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[7]
[7] See SPS & PLS (supra) at paragraph 59-60
Given that the court will often be called upon to apply the principal expressed in Rice & Asplund at a preliminary stage without any full exploration of the parties’ concerned evidence, care must be taken with its application at such a stage. It is not a rule which is to be applied formulaically.
Rather, the court must examine the evidence available and determine whether, at its highest and without determining its veracity, such evidence demonstrates a sufficient change of circumstance to justify the court embarking upon a full and exhaustive hearing.
Warnick J put it as follows:
“…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.”[8]
[8] Ibid at paragraph 81
It will frequently be the case that there is much controversy between the parties concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975.
The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation.
In arriving at its decision, the court must look to the following matters:
·the importance or seriousness of the issues raised, both individually and where necessary collectively;
·the impact that the issues are likely to have on the best interests of the children concerned;
·whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.
That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change. [9]
[9] See King & Finneran (2001) FLC 93-079 at 88,367
In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry. In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.[10]
[10] Ibid at paragraph 84
Background to the current proceedings
In February of 2017, a period of approximately five years had passed since the orders had been made, which formalised the placement of [X] in the maternal grandfather’s care. At this stage, it was also apparent to me that there had been no diminution in the conflict between the various individuals concerned in [X]’s life.
Necessarily, [X] was older and so likely to be more capable of expressing a view about where and with whom he preferred to live. The inherent complexity of the case remained. In these circumstances, I determined that it was incumbent upon me to investigate the case further, before considering whether it should be dismissed pursuant to the application of the rule in Rice & Asplund, particularly at an early stage of proceedings.
In my view, it was not enough for the maternal grandfather to point to the fact that there had been an earlier determination of the child’s living and parenting arrangements and that therefore, necessarily, it must follow that there had been no significant change of circumstances.
At this stage, I considered that it was necessary for the court to examine whether [X] himself had any views about the case and what factors, if any, were impacting on those views. I considered that it was not beyond the bounds of possibility that [X] himself might perceive that it was better for him to live with a parent and his half siblings.
In reaching this decision, I was significantly influenced by the great moment the proceedings held for Mr Martin personally and his strong conviction that it was in [X]’s best interests to live with a parent, rather than some other relative, no matter how well meaning.
One of the great ironies of this case is that a person who has been significantly involved in caring for [X] is not and has never been a direct party to them. She is Ms L, who is Mr Floyd’s second wife and is therefore not biologically related to [X]. However, it is clear that, since [X] was an infant, she has been the major provider of both emotional and physical sustenance for the child.
Given the controversial issues the case threw up and my unwillingness to determine it effectively, “on the papers” on 23 February 2017, I ordered that a family report be prepared pursuant to the provisions of section 62G of the Family Law Act. The report concerned was prepared by Mr B, an experienced family consultant.
Mr B formally interviewed Mr Martin; Ms S; and Mr Floyd; but not Ms K. The most pressing issue, at this stage, from Mr B’s perspective, was the workability of the shared parenting regime then advocated by Mr Martin.
A subsidiary issue related to the allocation of parental responsibility. In 2012, given the longstanding acrimony between the parties and their profound communication difficulties, I have reached the view that it was impracticable for them to share parental decision making responsibility for [X]. As a consequence, this responsibility had been conferred on Mr Floyd alone. This determination had not been disturbed by the Full Court.
In interview with Mr B, [X] was somewhat guarded in his descriptions of his father. In observation, he was described as being initially withdrawn, isolative and quiet with his father and Ms S. [X] indicated to Mr B that he felt upset when his father spoke negatively of Mr & Ms Floyd.
In these circumstances, Mr B did not recommend an equal time regime for [X]. He was, however, in favour of the parties sharing decision making responsibility for [X]. He also recommended that [X] should spend extended weekends from after school on Friday until the following Monday morning, during school terms, with his father.
This latter recommendation was a result of an interim order earlier made by Judge Kelly in late 2016, prior to my re-involvement with the case. As I understand it, Her Honour had made this order in an effort to minimise handover tensions between the parties as [X] could be notionally exchanged between the parties at his school without the necessity for any of those involved in his care to come face to face.
The case returned to court on 8 June 2017, after the release of Mr B’s report. It seemed to me that there was a reasonable possibility that with assistance, the parties would be able to resolve the outstanding issues between them without the necessity for a final hearing. As a consequence, they were referred to a family dispute resolution conference.
As I recall, Mr Floyd, although willing to attend the conference, reiterated his view that Mr Martin’s application was misguided. He, through his counsel, Mr Craney, was critical of Mr B’s report in that it had not included any observations of the relationship between [X] and Ms L. Accordingly, the application of the rule in Rice & Asplund remained outstanding.
I agreed that the lack of any assessment of the relationship between [X] and Ms L rendered Mr B's February 2017 report incomplete, particularly given the possibility of the case proceeding further. In these circumstances, I ordered that he update the report to include an observation between Ms L and [X].
The family dispute resolution conference did not resolve the case. Mr B’s second report was released to the parties on 15 August 2017. Mr B described Ms L as being credible and child focussed in respect of [X]. He accepted that she, although not biologically related to [X], had been his psychological primary carer for the vast majority of his life.
Mr B reported his further interview with [X], in the following terms:
“[X] was interviewed alone. On this occasion he presented as more age-appropriate and emotionally robust than in May 2017, when the previous Family Report assessment was conducted.
He readily engaged and admitted to having recent episodes of no time-spending with his father; by choice. He denied being influenced by his grandparents in regard to this. He does not have ongoing telephone contact with his father by choice. He has fortnightly to monthly telephone contact with his mother, with the last face-to-face contact at Christmas time.
[X] disclosed being distressed and uncomfortable when his father denigrates Mr and Ms Floyd to him. With clarity, he stated that his grandparents encourage his relationship with Mr Martin. [X] stated that he does not particularly like Ms Martin and that he wished he had more one-to-one time with his father. He did not have much in common with his half-siblings because of the age difference.
[X] stated that it was 9 out of 10 important for him to drop the Sunday night sleepover with his father. He wished for a return to alternate weekends, as per previous Orders, that is, returning to the grandparents’ care on Sunday.”[11]
[11] See updated family report dated 15 August 2017
Following this intervention, Mr B reviewed his previous recommendation that the parties share decision making for [X]. He concluded that the ongoing acrimony between the parties militated against them sharing parental responsibility for [X].
Mr B also considered that the court should return to the earlier orders of April 2012, which envisaged [X] returning to the Floyd’s care on Sunday evening, rather than Monday morning, given [X]’s clear preference for this.
From Mr Martin’s perspective, Mr B’s second set of recommendations represented a complete about face from what he had recommended only three months earlier. He was understandably both upset and confused by the more recent recommendations.
The case returned to court on 22 August 2017. The parties remained at an impasse. I urged each of them to reconsider their positions. From Mr Floyd’s perspective, the case more clearly than ever fell within the ambit of Rice & Asplund. From Mr Martin’s perspective, Mr B’s two sets of recommendations were contradictory and therefore open to question.
Regrettably, notwithstanding the reports concerned, the parties were unable to reach any common ground. Mr Martin urged me to fix the matter for final hearing, which I did, allocating 20 & 21 February 2018, at Broken Hill, as the trial dates allocated.
These were the earliest dates available to me. I was not inclined to make the formal trial directions on 22 August 2017. Given the contents of the most recent family report, I remained hopeful that some agreement could be reached between the parties, which would nullify the need for a trial.
At the time, I pointed out to the parties my view that this would be the best outcome for [X]. I remained, however, very well aware of the emotional potency of the various issues raised by the parties thus far. In these circumstances, I realised that it would take some time for the parties to reach agreement, if indeed this was possible.
On this basis, the proceedings were adjourned until 30 October 2017 for trial directions to be made. In the meantime, on 20 October 2017, the father’s solicitor sent the maternal grandfather a letter, which was marked without prejudice save as to costs.[12]
[12] See exhibit A
Following the unsuccessful process of mediation, Mr Martin had filed an application in a case on 21 August 2017, seeking the referral of [X] to family counselling with a view to exploring a therapeutic approach to the improvement of [X]’s paternal relationship.
In this context, the letter of 20 October 2017 read as follows:
“We are instructed by our client that [X]’s time with him has been occurring routinely and smoothly for the last several months including the School holiday period and that [X] is no longer refusing to spend time with him and his half-siblings. We note that the presently listed Application in a Case returnable on 30 October 2017 is an Application for [X] to engage in counselling with his father to address the issue of [X]’s reluctance to attend at time spent with him.
Given the new developments my client is incredibly pleased and has instructed us that he will withdraw his Application for shared parental responsibility and Application in a Case on the basis that your client agrees to Orders continuing the current spend time routine and authorising his access to medical records, notification to the father of any medical issues [X] suffers and authorising the father to remain in contact and receive information from the child’s School. He makes this proposal on the basis that your client undertake also to withdraw your Response seeking costs.”[13]
[13] See letter dated 20 October 2017 from Rebecca Boreham solicitors to Doyle Kingston Swift
On 30 October 2017, the matter returned to court for trial direction to made. The parties, through their respective counsel, indicated that the trial was still required. On this basis, the dates of 20 & 21 February 2018 were confirmed and orders were made for the filing of trial affidavits in the early New Year. Arrangements were made for Mr B to give evidence before the court, particularly in the form of cross-examination by the parties.
On 20 December 2017, Mr Martin filed a Notice of Discontinuance of all his applications before the court. It is common ground between the parties that the orders of Judge Kelly, which varied the April 2012 orders, were interim in nature and with the withdrawal of the father’s application, the final orders of 2012 are fully restored with the affect that [X] is to be returned to his maternal grandfather’s care on Sunday evening.
It is Mr Floyd’s position that he was put to considerable expense preparing for the trial, which has been rendered otiose by the Notice of Discontinuance. His solicitor, Mr Craney, has deposed that following costs have been incurred:
·prior to the directions hearing on 30 October 2017 – costs and disbursements amounting to $10,177.30;
·costs incurred in relation to the directions hearing of 30 October 2017 - $677.60;
·preparation for the trial including research into the Rice & Asplund issue - $2,100.00.
In all the circumstances, it is the maternal grandfather’s position that it is just that an award of costs be made in his favour. Essentially, it is his position that the father’s case was without merit, from its initiation, given the nature of the circumstances which gave rise to the April 2012 order, which included an extensive hearing.
On the other hand, it is Mr Martin’s position that each party should bear his own costs. In support of his position, he points to the emotionally complicated circumstances of the case, which raised issues of great personal significance for him, particularly in the sense that the earlier orders had resulted in the care of his son being given to a person who was not a parent.
In addition, it is his position that the letter of 20 October 2017 constituted a workable proposal to settle the proceedings, which was not apparently acceptable to Mr Floyd. Accordingly, he asserts that the maternal grandfather has not been entirely reasonable in his conduct of the case and necessarily, there are rights and wrongs on both sides.
In order to save costs, Mr Martin has not formally responded to Mr Floyd’s application for costs. However, through his solicitor, Ms Angel, he has indicated that he is not in receipt of legal aid and has a modest income, which is significantly augmented by social security payments. Accordingly, it is his position that he would not be able to meet any award of costs in any event.
The legal principles applicable
The normal rule in civil proceedings is that costs follow the event. Essentially, the unsuccessful party pays the cost of the party who has succeeded.
This is not the position in family law proceedings. Rather, the starting point is that each party should bear his or her own costs. The rationale for this rule is that the subject matter for family law proceedings is intensely private, dealing as it does with arrangements for the care of children and the division of property.
Necessarily these issues, often highly controversial, frequently precipitate strong emotions in the parties concerned. In addition, the law pertaining to such decisions is discretionary, based on the court’s assessment of very many factors.
Accordingly, what will be the ultimate outcome of family law proceedings may be difficult to predict with certainty. Inevitably, in such circumstances, the parties concerned will each be able to present valid and compelling reasons as to why they have proceeded. In children’s cases, these reasons invariably relate to issues centred on filial affection.
In short, the subject matter of the court, in children’s proceedings, is different in character and quality from other species of civil litigation, which does not always have the same emotional quotient.
Essentially, in children’s cases, the parties concerned are usually each able to present valid proposals as to how a difficult and controversial situation should be resolved and the strong feelings inevitably created by the situation concerned may stand in the way of easy compromise.[14]
[14] These comments replicate comments made by me in an earlier decision handed down by me in 2013 Garrett & Garrett [2013] FCCAA 1811
This is a strong flavour of Mr Martin’s case. It remains his position that [X] should live with a parent, rather than a grandparent. In addition, it is his position that the recommendations of Mr B, given their contradictory nature, were open to criticism and, as such, he should not be penalised for agitating for the matter to be listed for final hearing in August of 2017.
The considerations outlined above, which I hope demonstrate the special nature of family law proceedings when compared to other types of civil proceedings, make it potentially unjust for there to be any rule that costs should be routinely awarded to a successful party in them. However, notwithstanding these considerations, the court retains a discretion to award costs in appropriate circumstances.
Section 117(1), abolishes, for the purposes of Family Law Act proceedings the general rule that in civil proceedings costs follow the event. Section 117(2) then provides the court with a general discretion to make costs orders if it is of the opinion that there are circumstances that justify it in so doing. The court may make such order for costs as it “considers just”.
Section 117(2A) sets out the matters that the court shall have regard to in exercising this discretion. They include the following: the financial circumstances of the parties concerned; the receipt of legal aid by the parties; the conduct of the parties to the proceedings; whether the proceedings were necessitated by the failure of a party to comply with previous court orders; whether one of the parties to the proceedings have been wholly unsuccessful in them; any offers to settle the proceedings; and any other relevant matter.
The court has a wide discretion as to the calculation of costs. Pursuant to Rule 21.02(2) of the Federal Circuit Court Rules:
“In making an order for costs in a proceeding the Court may:
(a) set the amount of costs; or
(b) set the method by which the costs be calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of costs which may be before the proceedings is concluded.”
However, pursuant to Rule 21.10:
“Unless the Court otherwise orders a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1 and
(b) disbursements properly incurred.”
Consideration
I now turn to consider the various matters listed in section 117(2A) to determine whether sufficient circumstances exist to render it just to make an award of costs in Mr Floyd’s favour.
I have not been provided with any extensive details of Mr Floyd’s financial position. He is a self-employed (occupation omitted), who is fairly comfortably off financially. However, I have not been told what his current level of annual remuneration is.
In my view, Mr Floyd cannot be regarded as a particularly wealthy person. As such, I accept that these proceedings represent a significant financial commitment for him, which he would have preferred to have avoided.
Mr Martin is a contract (occupation omitted). Ms S has a position with the (employer omitted), based in (omitted). At present, Mr Martin is a stay at home parent, whilst Ms S is the family’s breadwinner. The family is entitled to family support payments and tax benefits. Mr Martin estimates his income from (employment omitted) to be $13,000.00 per annum.
Neither party is in receipt of legal aid. In the past, Mr Martin has been assisted by a community legal centre in (omitted). I understand that he has also extended significant sums of his own moneys on pursuing these proceedings.
In the circumstances, I have little difficulty in reaching the conclusion that they have great moment for him and indeed for Mr Floyd. The proceedings high emotional quotient has not assisted the parties to reach any early compromise in the past. In the earlier reasons for judgment, published by me in April of 2012, I observed as follows:
“Regrettably, no-one concerned in this case can think of any mechanism to reduce the unacceptable high level of tension between the respective components of [X]’s family, neither of which can currently see any good in the other.
This has meant that the proceedings before me were infused with an atmosphere of vitriol and bitterness, with each party seeking to dredge the past for any possible negative attribute, which they could ascribe to the other side.”[15]
[15] See Martin & Floyd [2012] FMCAfam 329 at [55]-[56]
As indicated earlier, it is my impression that in the five years since these comments were made, there has been no abatement in the mistrust between the parties. In these circumstances, they do not communicate effectively with one another and inevitably this has had some serious implications for [X]’s psychological well-being. These difficulties came to the fore in mid-2016, which led to Mr Martin reopening the proceedings, against the background of Mr Floyd alleging the child did not want to spend time with his father.
For obvious reasons, this situation did not provide fertile ground for the parties to reach an easy compromise with one another. Necessarily, they each had different perceptions of what was likely to be best for [X], particularly in regards to what his likely preferences were to be.
In all the circumstances, I do not think Mr Martin can be criticised for bringing the proceedings or that the proceedings themselves can be categorised as being hopeless from the start. Certainly, I did not take the view that it was inevitable that the bar, provided by Rice & Asplund, would almost certainly prevent the father’s application proceeding further.
In these circumstances, given the longstanding conflict between the parties, it was appropriate for the court to canvas what were [X]’s views about the current arrangements and what factors, if any, were impacting upon those views. As a consequence, in mid-2017, the parties were aware that Mr B was of the view that there was merit in [X] and Mr Martin undergoing counselling to facilitate a strengthening of his paternal relationship.
At this stage, Mr B also considered that there were some concerns raised that [X] himself might be significantly influenced by the maternal grandfather’s views. In this context Mr B favoured the court adopting a cautious view in respect of [X]’s apparent preference to continue living with the maternal grandfather and having limited with his father.
Accordingly, in these circumstances, I do not consider that Mr Martin can be unduly criticised for wishing to proceed further with his application. In addition, Mr B’s first report raised issues of some controversy, so far as Mr Floyd was concerned. These centred on the allocation of parental responsibility and the maintenance of the Monday morning school handover.
It was highly regrettable, in my view, that Ms K did not take part in the first report. Why this is so is unclear to me other than it had been assumed, as she was not a formal party to the proceedings, she did not have standing to participate.
In my view, the second report threw significant light on what was happening in [X]’s life, particularly in terms of his relationship with Ms K. This had significant implications in regards to the formulation of Mr B’s recommendations in the second report.
The evidence indicates that the parties did attempt to resolve the issues between them, through a process of mediation, after the first report was released. This was unsuccessful. In these circumstances, I do not think that Mr Martin can be criticised for proposing a process of therapeutic intervention involving both him and [X], which was crystallised in his application to the court made on 22 August 2017, a few days after the second report was released.
In all these circumstances, I do not consider that there are any appropriate circumstances which justify an award of costs in Mr Floyd’s favour in respect of the period between August 2016 and August 2017. In my view, certainly up to this stage, the case remained a difficult and controversial one, precipitating the powerful emotions which are the hallmark of family law proceedings.
I also accept that in the period between August 2017 and October 2017, it would have been difficult for Mr Martin to absorb the import of Mr B’s second report, particularly in respect of its contradictory recommendations regarding issues of significant moment to him, namely the allocation of parental responsibility and the time his alternate weekend with [X], should end.
Necessarily, such a situation would not have assisted Mr Martin to focus on resolving the case in a timely fashion. For understandable reasons, he is likely to have remained conflicted about it. Nonetheless, in my view, the proposal made in his solicitors’ letter of 20 October 2017 was a realistic one. It left only the issue of the conclusion time of weekend contact in contention.
Accordingly, in my view, I do not think that it can be said Mr Martin was behaving in a capricious or irresponsible manner in respect of the litigation concerned, nor that he had any ulterior motive in respect of it, such as to cause maximum financial detriment to Mr Floyd. In addition, I do not consider that the case had become a clear cut one.
Due to the requirement of the Supreme Court to utilise its court room in (omitted) for a serious criminal trial, this court’s ordinary circuit to Broken Hill had to be rescheduled earlier in February. As a consequence, the potential trial was brought forward by approximately two weeks.
As is well known, many solicitors offices are closed for a portion of January. As a consequence, I accept that Mr Floyd’s solicitor had to engage in preparation for the February trial in December of 2017.
Mr Martin's Notice of Discontinuance was filed two business days prior to the Christmas break. In these circumstances, I accept that Mr Floyd’s solicitor engaged in some preparatory work for the anticipated February hearing. As previously indicated, he has calculated his costs, in respect of this preparation as being $2,100.00.
For the reasons provided above, I do not propose to make any orders for costs prior to the directions hearing which took place on 30 October 2017. At this stage, the parties each had Mr B’s second report; there was an offer from the father to resolve the proceedings; and an outstanding application regarding the father and [X] taking part in a process of family therapy.
Against this background, the parties asked the court to confirm the hearing, which it did. I also urged each of the parties to consider their respective positions, particularly whether such a trial would have any utility, particularly so far as [X]’s best interests were concerned.
In all these circumstances, I do not consider it just that a discrete award of costs be made in respect of Mr Craney’s appearance at the directions hearing of 30 October 2017. The final issue remaining turns on the implications of the late filing of the Notice of Discontinuance, particularly in the light of the Christmas break and the early New Year re-fixing of the trial.
Pursuant to the provisions of section 117(2A)(g) of the Family Law Act, the court is directed to have regard to any other matter it considers relevant in its assessment of whether it is just to make an award of costs in a family law matter. I am well aware that if I make the award sought by Mr Floyd, from Mr Martin’s perspective, such an award will add insult to injury.
For obvious reasons, such a perception will not lead to any healing in the rupture to [X]’s family, which both past history and these proceedings has caused, for no fault, which can be attributed to [X] himself. This will not be of assistance to any process of adjustment and acceptance for all concerned which may occur with the effluxion of time.
This factor, when coupled with Mr Martin’s limited financial means, has lead me to the conclusion that it would not be just to make any award of costs in these difficult and controversial family law proceedings.
For these reasons, I propose to dismiss the paternal grandfather’s application. This has the consequence of restoring the court’s order in respect of parenting arrangements for [X], which was made on 12 April 2012.
For all these reasons, the orders of the court will be as set out the commencement of these reasons for judgment.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 23 February 2018
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