McKay and Charles and Ors

[2007] FamCA 1449

FAMILY COURT OF AUSTRALIA

MCKAY & CHARLES AND ORS [2007] FamCA 1449

FAMILY LAW – COSTS – Case management

Family Law Act 1975 (Cth)

In the Marriage of Kohn (1977) 30 FLR 175
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] Fam CA 158
Brown & Brown (1998) FLC 92-822

APPLICANT: Mr McKay

FIRST RESPONDENT: Ms Charles

SECOND RESPONDENT: Mr McKay (Snr)

THIRD RESPONDENT: Mrs McKay (Snr)

FILE NUMBER: MLC 3150 of 2007

DATE DELIVERED: 3 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.W. St John SC

SOLICITOR FOR THE APPLICANT: Nevett Ford

COUNSEL FOR THE 1^ST RESPONDENT: Mr A.F. Skerlj

SOLICITOR FOR THE 1^ST RESPONDENT: Harwood Andrews

COUNSEL FOR THE 2^ND RESPONDENT: Mr J.W. St John SC

SOLICITOR FOR THE 2^ND RESPONDENT: Harwood Andrews

COUNSEL FOR THE 3^RD RESPONDENT: Mr J.W. St John SC

SOLICITOR FOR THE 3^RD RESPONDENT: Harwood Andrews

Orders

1. That documents produced to the court this day in compliance with subpoenae be released to the practitioners for the second respondent for inspection and photocopying the file produced by Mr Tait, solicitor. 

2. That the parenting proceedings in relation to the child … born … July 2006 including but not limited to the issue of what time the child should live with or spend time with the husband over the forthcoming Christmas season be adjourned to the Senior Registrar’s List on 18 December 2007 at 9:45am. 

3. That all extant applications of a financial nature being:-

   (a)The wife’s application for litigation funding relief and spousal maintenance being paragraph 6 and 8 respectively in her response to an application in a case filed 11 May 2007;

   (b)

   The wife’s application for sole use and occupation of the property at

   
   

   …, G, being her application in a case filed 21 August 2007;

   (c)The wife’s application against Mr McKay (Snr) and Mrs McKay (Snr) being her application in a case filed 9 October 2007;

4. The application of Mr McKay (Snr) and Mrs McKay (Snr) filed 21 November 2007 or orders in the alternative be adjourned to a date to be fixed by Registrar Sikiotis in the Judicial Duty List in March 2008 (as and when details of available listings are created). 

5. That the financial applications be referred to Registrar Sikiotis to be set down before her for review ex parte, solely for the purpose of allocating a date in a Judicial List in March 2008 and, once allocated, notifying the parties of that date, the parties including for this purpose Mr McKay (Snr) and Mrs McKay (Snr). 

6. That the wife pay the costs of the husband thrown away this day fixed in the sum of $1250.

7. That the wife pay the costs of Mr McKay (Snr) and Mrs McKay (Snr) thrown away this day fixed in the sum of $2750.

8. That the payment of the aforementioned costs be stayed until the determination of the pending property proceedings between the parties and, in the event that

   
   

   Mr and Mrs McKay senior cease to be parties to the proceedings before a determination of the property proceedings between the husband and the wife the costs be stayed until the determination of the latter mentioned proceedings. 

9. That notwithstanding paragraph 1 of this Order all documents produced in compliance with subpoena be released for inspection and photocopying. 

AND THE COURT NOTES that a conciliation conference was convened by Registrar on 24 August 2007 as a final resolution of the event within the meaning of Rule 11.10(1)(a)(ii). 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3150 of 2007

MR MCKAY  

Applicant

And

MS CHARLES  

First Respondent

And

MR MCKAY (SNR)  

Second Respondent

And

MRS MCKAY (SNR)  

Third Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. This matter comes before me in the judicial duty list.  The wife has applied for and obtained an adjournment of today’s hearing because her father has, as recently as yesterday, taken ill and is hospitalised with a suspected stroke.  It is accepted that the wife is unable to attend court today or to devote her attention to the matter by giving instructions by telephone. 

2. Returnable today are proceedings relating to the child, who is approximately 17 months old, and who resides primarily in the care of the wife. The other proceedings are of a financial nature and include the wife's application against the husband for an alteration of property interests and, more recently, her application to join the husband's parents, the paternal grandparents, Mr McKay (Snr) and Mrs McKay (Snr). I am informed that the wife asserts that Mr and Mrs McKay Snr (who I may refer to as the paternal grandparents) hold real property by way of a constructive trust for the benefit of the husband. 

3. There is also a raft of applications by the wife seeking spousal maintenance, litigation funding order, sole use and occupation of the former matrimonial home.  It is the former matrimonial home which the wife asserts is subject to the alleged constructive trust between the husband and the paternal grandparents and that property is currently occupied by the husband. 

4. Today Mr St John appears on behalf of the husband and also appears on behalf of the paternal grandparents.  They are in court.  Mr Skerlj of counsel appears for the wife. 

5. Following discussion with counsel, it seems appropriate to split the proceedings which require interim determination.  If I were merely to adjourn all proceedings together to the next judicial duty list, there is a possibility that there will be insufficient time to deal with all interim matters requiring determination.  The parenting aspect is a matter within the power of the Senior Registrar. 

6. The parenting matters are to be listed before the Senior Registrar on 18 December 2007 - that is a date convenient to the husband and the wife - and would hopefully see a determination of the husband's application to spend some holiday time, being a block of seven days, with the child commencing 29 December, 2007. 

7. The financial matters go off to Registrar Sikiotis.  This is because it is agreed that the wife's practitioners are awaiting accounting information which, whilst it will be available before March 2008, is unlikely to be processed before March, 2008.  At the moment I am unable to allocate a date in March because the duty lists are not listed past 28 February.  In January the Registrar will get the file out and allocate a convenient date in March for that to be heard and the parties will be notified by post of that date. 

8. Having heard from counsel for each of the parties, I would recommend that the matter be allocated a longer rather than shorter listing for determination of interim matters.  

9. The only matter which I am required to determine by way of contest is a costs application. 

10. The husband and his parents claim costs of $5300.  There was no distinction between what part of that is counsel's fees and what part is solicitors' fees.  Mr St John informed me that $2750 is claimed by the husband as costs thrown away today, because he has been unable to prosecute his application for further parenting orders, and the $2750 is claimed by the paternal grandparents because they are unable to oppose the joinder of them to the proceedings.  I am told that, had the paternal grandparents failed in their opposition to the joinder, they would have sought to proceed with an application that the wife withdraw a caveat she has lodged for registration over the former matrimonial home.  This is the property in respect of which the wife asserts that the paternal grandparents hold a beneficial interest of the husband.  Mr St John advised that the paternal grandparents will assert that the wife has no caveatable interest in the property over which she has lodged the caveat. 

11. Section 117 of the Family Law Act1975 contains the general rule that each party to proceedings under the Act shall bear his or her own costs.  The object of the rule is to ensure that parties are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose.[1]  However, the Court retains a discretion to make an order for costs if it is of the opinion there are circumstances that justify that course and it would be just to do so. 

    [1]  In the Marriage of Kohn (1977) 30 FLR 175 at 177.

12. In considering whether to make an order the Court must have regard to the matters set out in s 117(2A). The weight to be attached to any of the considerations in sub-s (2A) is wholly discretionary. However, while no single factor out-ranks any other, there is nothing to prevent one or other of them from being the sole foundation for a costs order.[2]  As Kay J observed in Brown & Brown[3] :

    "In many cases there will be an outstanding feature . . . that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other s 117(2A) considerations".

    [2]  PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] Fam CA 158 at [41].

    [3] (1998) FLC 92-822 at 85,347.

13. The applicant for costs contends that this application raises the matters in paragraphs 117(2A)(a), (c), (e) and (g).  They are:-

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

    (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; 

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

    (g)  such other matters as the court considers relevant.

14. In relation to the financial circumstances of the parties, I am advised that that the wife is dependent on income tested benefits and is in rented accommodation.  It is unlikely that she has a greater capacity than the other parties to meet costs.  However, the fact is that today is wasted because the wife cannot be here. 

15. The wife’s inability to attend is relevant in the context of the conduct of the parties and the sub-section (g). The wife has sought and obtained an adjournment which has been necessary because of her inability to participate in the proceedings today.  Sadly, the wife is occupied with her father’s illness but it is through no fault of the husband or his parents.  The other parties have been put to the expense of being represented today.  The costs in that regard have been wasted. 

16. In relation to the quantification of costs I will quantify them rather than sending this matter for assessment. The applicable scale of costs is contained in the Family Law Rules 2004. 

17. The wife will pay the costs of the second and third respondents in the sum claimed, which is $2750.  She will also pay the costs of the husband not in the sum claimed but in the lesser sum of $1250.  This means a total costs liability of $4000. 

DISCUSSION

1. I will postpone payment of that liability until a determination of the property proceedings between the parties. 

DISCUSSION

1. At the callover of this matter I had preliminary discussions with counsel for each of the parties involving two matters which were of concern to me when

   
   

   I perused the file earlier. 

2. First was that there have been multiple hearings for parenting orders and, as yet, no independent children's lawyer has been appointed in respect of  the child's interests.  It is likely that the child's interests would be advanced by his parents having fewer interim hearings. To that end I asked the parties to consider whether or not they wanted an independent children's lawyer appointed at this stage.  Mr St John advised that he was somewhat optimistic that, following the determination of the matter before Senior Registrar FitzGibbon, an independent children's lawyer may not be necessary.  Alternatively, it may be clear by 18 December 2007 that an independent children’s lawyer should be appointed. 

3. The second matter was that there have been a series of hearings and it was not apparent to me where this matter is going.  It is clear that there have been a number of parenting orders pursuant to which the child’s time with the father has increased incrementally.  For a child so young, incremental steps are appropriate but churning through the court process slow rate is not necessarily the best means by which to achieve them.  

4. The matter is going from interim hearing to interim hearing and not getting closer to a determination. 

5. I have asked the parties to consider private mediation.  I trust that it is clear to them that, if they or their lawyers believe that private mediation is an option that they wish to pursue, the court can make orders by way of discovery or otherwise to facilitate that process without loss of priority in the event that it is not successful. I would be amenable to taking any such application and

   
   

   I would do so by telephone which can be arranged through my Associate.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  14 December 2007