Merriam and Pike and Anor
[2011] FMCAfam 532
•3 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MERRIAM & PIKE & ANOR | [2011] FMCAfam 532 |
| FAMILY LAW – Children – parenting – application for parenting orders. COSTS – Application for costs – where application discontinued after interim hearing – conduct of the parties to the proceedings in relation to the proceedings – whether any party to the proceedings has been wholly unsuccessful in the proceedings – where Applicant was wholly unsuccessful in the proceedings – whether Applicant’s case had little or no prospects of success – where Applicant sought orders contrary to existing orders without seeking a vacation or variation – indemnity costs – whether costs should be awarded on an indemnity basis – abuse of process. |
| Family Law Act 1975 (Cth), ss.65C, 117 Federal Magistrates Court Rules 2001, rr.4.01, 6.05, 6.06, 6.07, 13.01, 13.02, 21.02, 24.02 |
| Baillieu Knight Pty Ltd v [Mr Merriam Pty Ltd] [citation omitted for privacy reasons] Colgate Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225 Kohan & Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340 Merriam & Pike [2009] FMCAfam 1103 Munday v Bowman (1997) 22 Fam LR 321; FLC 92-784 |
| Applicant: | MR MERRIAM |
| First Respondent: | MS PIKE |
| Second Respondent: | MR TERRY |
| File Number: | SYC 5140 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 April 2010 |
| Date of Last Submission: | 5 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Reynolds |
| Solicitors for the Applicant: | Martin Place Lawyers |
| Solicitor for the First Respondent: | Price & Company |
| Solicitors for the Second Respondent: | No appearance |
| Solicitor for the Independent Children’s Lawyer: | Legal Aid Commission |
ORDERS
The Applicant is to pay the First Respondent’s costs of and incidental to the Application for parenting orders filed on 26 August 2009 in the sum of $18,000.00.
The Applicant is to pay the First Respondent’s costs of an incidental to the First Respondent’s application for costs in the sum of $2,500.00.
IT IS NOTED that publication of this judgment under the pseudonym Merriam & Pike & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5140 of 2009
| MR MERRIAM |
Applicant
And
| MS PIKE |
First Respondent
| MR TERRY |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for costs arising out of the discontinuance of an Application for parenting orders.
Background
The Applicant is the stepfather of two children, [X], who was born [in] 1999, and [Y], who was born [in] 2004. On 26th August 2009 he filed an Application for parenting orders, seeking orders both on a final and interim basis. The orders sought, both on a final and an interim basis, were that:
(1)The Applicant would spend time with the children on alternate weekends, for half of the school holidays, on alternate Father’s Days and, in alternate years, from 5:00 pm on Christmas Eve to 5:00 pm on Christmas Day;
(2)The Applicant would have liberal telephone contact with the children at least each Monday, Wednesday and Friday;
(3)The Applicant would be given school reports and other relevant documents, including invitations to school and sporting events that parents of the children would normally attend; and
(4)That the children would not be taken out of Australia without his written consent.
The basis for the application was set out in the applicant’s affidavit, sworn or affirmed on 26th August 2009. In his affidavit the Applicant described how he met the First Respondent, who is the mother of the two children, and her then husband, the Second Respondent, who is the children’s father, in late 2003. The Applicant was at the time married to someone else.
The Applicant deposes in his affidavit that he commenced an intimate relationship with the First Respondent in about February 2004[1]. The First and Second Respondents separated in June 2004, and, shortly after, he commenced living with the First Respondent and the children.
[1] Affidavit of Mr Merriam 26.8.2009 at paragraph [3]
The Applicant and his wife were divorced in March 2005.
The Applicant and the First Respondent were married [in] 2006.[2] The Applicant lived with the First Respondent and the children until the First Respondent and the children moved out on 8th June 2009.[3]
[2] See Certificate of Marriage 8.10.2006 filed on 26 august 2009
[3] Affidavit of Mr Merriam 26.8.2009 at [11]
The Applicant deposed that he filled the role of a father to the children during the marriage. He further deposed that he had spent very little time with the children since separation.
Curiously, although the Applicant deposed in his affidavits of 26th, 27th and 31st August 2009 that he had been in regular contact with the children’s father, he did not join him as a Respondent in his initiating Application.
The Applicant filed an Application for Review on 27th August 2009, seeking review of the decision of a Registrar not to grant short service of his Initiating Application. That Application for Review was dismissed by Walker FM on 28th August 2009.
The Applicant filed an Amended Application on 28th September 2009, seeking more extensive orders, including an order that the children’s names were to be place on the Airport Watch List maintained by the Australian Federal Police. This Amended Application was accompanied by an affidavit, sworn or affirmed (the attestation clause does not say which) that same day.
On 9th October 2009 the Applicant filed an affidavit sworn or affirmed by Ms A, a former wife of the Applicant, on 7th October 2009.
On 12th October 2009 the Applicant filed an affidavit by his adult daughter Ms M sworn or affirmed on 7th October 2009.
The Application was listed before the Court on 12th October 2009, on which date Wilson FM[4] listed it for an interim hearing on 16th October. His Honour also directed that the parties should attend a Child Dispute Conference with a Family Consultant on 14th October.
[4] As he then was
The Court papers show that Mr Price, solicitor, appeared for the First Respondent on 12th October.
On 14th October 2009, the First Respondent filed affidavits sworn by herself, her sister Ms N, her mother, Ms L, Ms W and Mr Terry, who was still not a respondent at this stage. Both the First Respondent and Mr Terry annexed to their affidavits copies of Orders made by consent in the Family Court at Sydney on 15th September 2005 in proceedings between them about the children.
On 15th October 2009, the First Respondent filed a Response, seeking dismissal of the Application for interim orders and naming Mr Terry as the Second Respondent.
The affidavits by the First Respondent and her family give a very different account of the situation, describing the applicant as dominating, violent and abusive and disdainful of the children. She deposed that he would claim to be a psychiatrist, a hypnotist and a clairvoyant.
The First Respondent deposed that she had obtained an Interim Apprehended Violence Order against the Applicant on 25th September 2009. A copy of the order forms Annexure “B” to her affidavit of 12th October 2009.
The Applicant, both Respondents and the two children attended the Child Dispute Conference on 14th October 2010.
The Family Consultant, Mr L, gave oral evidence about the conference at the interim hearing before Wilson FM on 16th October 2010. His Honour said in his Reasons for Judgment:
Having heard the evidence of Mr L, I am satisfied that it would expose the children to psychological harm in being forced to spend time with the applicant. That conclusion is reinforced when one has regard to those additional consideration sin s.60CC(3) of the Act, that relevantly apply in this case. I have already referred to the views expressed by the children.[5]
[5] Merriam & Pike [2009] FMCAfam 1103 at [20]
Federal Magistrate Wilson refused the Application for interim parenting orders and ordered that an Independent Children’s Lawyer be appointed to represent the children under the provisions of s.68L of the Family Law Act 1975. His Honour reserved the parties’ costs of and incidental to the application for interim parenting orders and adjourned the Application for final orders for mention on 21st December 2009.
On 5th November 2009 the Applicant filed an Application in a Case seeking the return of a computer and a tea chest full of records and files. That Application was returnable on 21st December 2009.
The Independent Children’s Lawyer, Ms Power, filed a Notice of Address for Service on 11th November 2009.
Mr Terry filed a Notice of Address for Service on 2nd December 2009.
On 21st December 2009, the parties’ lawyers appeared before me and an Expert Report was ordered under the provisions of Part 15 of the Rules. The application was adjourned to 22nd March 2010 for mention and directions.
The matter was listed for mention on 1st March 2010. There was no appearance by or on behalf of the Applicant and the costs of the Respondents and the Independent Children’s Lawyer were reserved.
The Applicant filed a Notice of Discontinuance on 25th February 2010.
When the matter came back to Court for mention on 22nd March 2010 Mr Price, the solicitor for the First Respondent, made an application for costs against the Applicant on behalf of his client. I listed the application for hearing on 7th April 2010 and ordered that the parties should file and serve any affidavits upon which they sought to rely by 1st April 2010
The Applicant filed an affidavit on 1st April 2010 in which he described himself as a self employed [omitted] with an income the previous year of about $12,000.00. He went on to say:
At present I am at the indulgence of my lawyers in these and other proceedings at the Local Court, as at this stage I cannot meet their bill. I believe at this time I owe approximately $50,000.00. At present time because of my medical condition I am unable to work or receive any income.[6]
[6] Affidavit of Mr Merriam 1.4.2010 at [2]
The Applicant went on to express the belief that the First and Second Respondents had each received large financial settlements in other proceedings in the Family Court of about $1.7 million each.[7]
[7] Ibid at [3]
In the balance of his affidavit, the Applicant reiterates the claims he made in his earlier affidavits and claims that the Second Respondent assaulted him on 7th September 2009. He referred to the Apprehended Violence proceedings against him and some charges brought by the Police and stated that they were due to be heard on 4th and 5th August 2010.
The Applicant deposed at paragraph 27 of his affidavit:
I noticed via Mr Price’s correspondence annexed and marked TM 8 that [Ms Pike] did not wish to settle. It appeared to me that litigation would be protracted, given the conduct of the other parties. I did not wish to put the children through protracted litigation. I did not wish to expose myself to further assaults. I did not wish to expose myself to further punitive litigation which would seriously affect my health, arising from malicious accusations by the other parties. I said to my solicitor ‘Let’s withdraw…[8]
[8] Affidavit of Mr Merriam 1.4.2010 at [27]
The First Respondent filed her affidavit on 1st April 2010.
In her affidavit, the First Respondent deposed that:
a)the Applicant had threatened her by saying, “OK, from now on I am going to make your life miserable, I am going to take you to court, you won’t be able to beat me”[9];
[9] Affidavit of Ms Pike 31.3.2010 at [6]
b)the Applicant’s solicitor, Ms Nagle, telephoned her to say that the Applicant wanted her back but when she said that she did not wish to return, said “Well then, if that’s how you feel, I’ll start the case against you”;[10]
[10] Ibid at [8]
c)the Applicant’s solicitor telephoned her the next day to say “[Ms Pike], [Mr Merriam]’s decided to withdraw the claim. He’s not going ahead with it.”[11];
[11] Ibid at [9]
d)she was not served with the Applicant’s Initiating Application or a subsequent review application;[12]
[12] Ibid at [11]-[14]
e)she was not served with the Applicant’s Initiating application of 28th September 2009;[13]
[13] Ibid at [16]-[17]
f)she received a subpoena through the mail under cover of a letter dated 1 October 2009;[14]
[14] Ibid at [18]-[19]
g)she received unsealed copies of the Amended application and supporting affidavit in an envelope left at her door on Friday 9th October 2009;[15]
[15] Ibid at [20]-[21]
h)the Applicant served copies of various documents on her solicitors by facsimile on the afternoon after the first court date, 12th October 2009;[16]
i)received a telephone call from a solicitor acting for her in other proceedings on 13th October 2009 saying that the Applicant had telephoned him to say that he was withdrawing the claim and she should not attend the Child Dispute Conference the next day;[17]
j)described bizarre behaviour by the applicant and his solicitor when she attended the Child Dispute Conference the following day;[18]
k)the applicant’s subpoena relating to a computer was struck out on 16th October as an abuse of process;[19]
l)the Applicant did not attend Court on 1st March 2010 when required to do so;[20]
m)the Applicant did not attend Court on 22nd March 2010, but was represented by a solicitor who said that the Applicant was at another court and there was a prospect that he may not be granted bail, which she subsequently discovered to be false;[21]
n)has incurred significant costs as a result of the manner in which the Applicant has conducted the proceedings, even continuing to press his case after the Court’s interim decision;[22]
o)she is unemployed and owes money;[23]
p)she believes the applicant has significant assets including real estate;[24] and
q)she has expended around $25,000.00 in legal fees in this proceeding.[25]
[16] Affidavit of Ms Pike 31.3.2010 at [26]-[27]
[17] Ibid at [29]
[18] Ibid at [31]-[35]
[19] Ibid at [40]-[41]
[20] Ibid at [52]-[52]
[21] Ibid at [59]-[60]
[22] Ibid at [61]
[23] Ibid at [62]-[63]
[24] Ibid at [64]
[25] Affidavit of Ms Pike 31.3.2010 at [65]
On 7th April 2010, when the matter was before the Court, the Applicant was granted leave to file a further affidavit in court. His affidavit contains denials of many of the matters in the First Respondent’s affidavit, although he concedes that he telephoned the First Respondent’s solicitor, Mr Myers, on 13th October to say ‘I won’t proceed, tell [Ms Pike] not to come to court”. He deposed:
At the time I was in a depressed hypoglycaemic state, as my doctor said to me. I did not want to cause the children any grief and I did not want to put them through Court.[26]
[26] Affidavit of Mr Merriam 7.4.2010 at [14]
The Applicant also commented on a claim by the First Respondent at paragraph 24 of her affidavit about my alleged non-compliance with the Court Rules “regarding the issues of service, form and procedure”, saying:
At the time I had caused to be filed an affidavit entitled ‘Amended Affidavit’. It appears that the word “Amended’ had not been deleted as it was meant to be. I understand that the solicitor who settled that affidavit who is not my usual solicitor, does not normally have carriage of the matter and does not practice in Family Law.[27]
[27] Ibid at [13]
On 7th April 2010 I ordered that;
(1)The First Respondent was to file and serve a Written Outline of Submissions on costs by 21 April 2010;
(2)The Applicant was to file and serve a Written Outline of Submissions on costs by 27 April 2010;
(3)The First Respondent was to file and serve a Reply to the Applicant’s Costs submissions by 5 May 2010.
Submissions
The First Respondent submits that:
a)the Applicant should pay her costs of and incidental to the proceedings; and
b)those costs should be paid on an indemnity basis.
It was submitted that there is no evidence to support the Applicant’s allegation in his affidavit of 1st April 2010 that the First Respondent received a share of a large financial settlement of some $1.7 million and she denies that she has. She goes on to say that she has been advised that she will not receive any money from those proceedings and she remains impecunious.
The First Respondent relies on the following matters as set out in subsection 117(2A) of the Family Law Act 1975:
·The conduct of the parties to the proceedings in relation to the proceedings (s.117(2A)(c)
·Whether any party has been wholly unsuccessful in the proceedings (s.117(2A)(e)
·Such other matters as the Court considers relevant
The Conduct of the Parties to the Proceedings in Relation to the Proceedings
The First Respondent submits that the conduct of the Applicant on its own would justify an order for indemnity costs as his Initiating Application was an improper use of the Court process where:
a)the Applicant sought orders which, if granted, would result in breaches of existing Orders of the Family Court;
b)the Applicant did not seek to vary those Orders; and
c)the Applicant did not seek to join the children’s biological father as a Respondent.
The First Respondent also submits that:
a)She was either not served with sealed copies of the Applications and affidavits or they were served late, or service was defective;
b)The Applicant’s subpoena regarding the computer was an abuse of the Court process as there was no relief sought in respect of any property orders and there was no evidence adduced about the computer. The subpoena was set aside by Wilson FM as an abuse of process;
c)On 26th October 2009 the applicant served a Notice to Produce that was an abuse of process in that it sought production of documents and the computer which had no relevance to the issues between the parties;
d)The Applicant filed and served an Application in a Case seeking interim orders for the production to the applicant’s solicitors of the computer and the tea chest containing files and other documents;
e)The Applicant attended court on 21st December 2009 and did not seek a hearing date;
f)The Applicant unilaterally discontinued the application;
g)The Applicant did not attend Court on 1st March 2010.
Whether any Party to the Proceedings has been Wholly Unsuccessful in the Proceedings
The First Respondent submits that the Applicant has been wholly unsuccessful at every stage of the proceedings.
Such Other Matters as the Court Considers Relevant
The First Respondent submits that the Applicant’s case had little or no prospects of success.
Further, it is submitted (by reference to the Family Law Rules) that the Applicant:
a)Sought unreasonable orders;
b)Failed to comply with time limits;
c)Belatedly filed and served material and improperly used and served subpoena and Notice to Produce;
d)Filed a plethora of evidence where there was no reasonable basis to make the allegations or denials;
e)Encumbered the Court with a “deluge of Affidavit material virtually the entirety of which was inadmissible”; and
f)By his conduct, evinced a blatant disregard for the Rules of this Court.
Indemnity Costs
The First Respondent submits that this is a case for the award of costs on an indemnity basis because:
a)The Applicant commenced and continued the Application when there was no chance of success;
b)On more than one occasion the Applicant’s conduct amounted to an abuse of the Court’s process; and
c)The Applicant’s conduct was unreasonable or improper.
Costs Order Sought
The First Respondent submits that she has incurred costs of approximately $30,000.00, which are substantial for an impecunious litigant. She seeks either an order for;
i)A lump sum of $25,000.00; or
ii)An order for costs on an indemnity basis, including costs of this costs application.
The Applicant’s Submissions
The Applicant submits that he was the sole father figure in the children’s lives and the only real father the youngest child, [Y], has ever known.
The Applicant further submits that costs do not follow the event in proceedings under the Family Law Act 1975 and takes issue with the First Respondent’s example of Rule 42.19(2) of the Uniform Civil Procedure Rules 2005 (NSW) in relation to discontinuance.
It is further submitted that the matters that the Court should take into account under subsection 117(2A) of the Act are:
·The financial circumstances of the parties (s.117(2A)(a))
·Whether any party is in receipt of legal aid (s.117(2A)(b)) – neither party is
·The conduct of the parties to the proceedings in relation to the proceedings (s.117(2A)(c))
·Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders (s.117(2A)(d)) – not relevant
·Whether any party to the proceedings has been wholly unsuccessful in the proceedings (s.117(2A)(e))
·Whether either part 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 (s.117(2A)(f))
·Such other matters as the court considers relevant (s.117(2A))
The Financial Circumstances of the Parties
The Applicant submits that he does not have a capacity to pay any of the First Respondent’s costs, as he was a bankrupt, his income in the previous year was only $12,000.00, and he has developed health problems which affect his capacity to earn.
The Applicant denies the First Respondent’s contentions that he has a beneficial interest in a number of properties or that he drives a BMW motor car and possesses other vehicles.
The Conduct of the Parties to the Proceedings in Relation to the Proceedings
The Applicant submits that the unsuccessful Notices to Produce and the unsuccessful subpoena can be disregarded as they were never complied with and the subpoena was struck out at the interim hearing. Accordingly, they did not contribute to the First Respondent’s costs in any other than a “miniscule” way.
The Application in a Case seeking production of the documents and a computer was necessary because the Applicant needed those items for the preparation of his case.
As to late service of documents, the Applicant submits that there were difficulties with serving documents by facsimile or DX and late service, whilst inconvenient, does not as a matter of course increase costs.
The Applicant denies that his affidavit material was inadmissible.
The Applicant denies that the orders with the children that he sought could not be made because they would conflict with the orders I favour of the mother’s first husband. The submission is:
This cannot be correct. Firstly, the order in favour of the first husband only provided for the children to spend 2 nights per fortnight with him. This in no way prevents the court from ordering that the children spend time with their stepfather.
The Applicant further submitted that these orders were not complied with and the children only saw the first husband for 50 or 60 days over a period of years.
Whether any Party to the Proceedings has been wholly unsuccessful in the proceedings
The Applicant concedes that he was wholly unsuccessful, but submits that this is because of the “extreme attitude” taken by the mother.
It is further submitted that the fact of a party being wholly unsuccessful cannot on its own justify a costs order, as that would mean that costs follow the event, which is not the intention of the Act.
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
The Applicant submits that he attempted to arrange mediation but the mother would only agree to a withdrawal of the Application.
He also submits, curiously, that at no time did the mother’s legal representatives suggest in writing or verbally before 23rd February 2010 that they would pursue the Applicant for costs.
Such Other Matters as the Court Considers Relevant
It was submitted on behalf of the Applicant that, whilst he believed that his application was in the best interests of the children, he chose to withdraw once he saw the obvious discord created in the children’s lives and the impact of the proceedings on his health and financial circumstances.
To make an order for costs against the Applicant would have a further adverse impact on him and would be seen as a punitive response to his rightful application.
Indemnity costs
The Applicant relies on the authority of the decision in Munday v Bowman[28] that, whilst the Court has the power to award indemnity costs, it should only be in exceptional circumstances and none are made out here.
[28] (1997) 22 Fam LR 321; FLC 92-784
The Applicant submits that costs, if awarded at all, should be on a party and party basis, as agreed or taxed.
The First Respondent’s Submissions in Reply
In reply, the First Respondent referred to a decision of Powell J in the Supreme Court of NSW in Baillieu Knight (NSW) Pty Ltd v [Mr Merriam] Ltd[29], where the defendant company was one where the Applicant himself was the director and controller.
[29] [citation omitted for privacy reasons]
In that case, Powell J found that the Applicant’s company had engaged in abuse of court process and not only injuncted the company but ordered that the company pay the Plaintiff’s costs on an indemnity basis.
The First Respondent seeks a lump sum of $25,000.00 by way of fixed costs, which she submits is fair and reasonable in the circumstances and appears to be less than half of the amount of $50,000.00 to $70,000.00 which the Applicant claims that he has or will have to meet. This amount does not include the costs of the costs application.
The First Respondent seeks an award of costs for the costs proceedings, which involve extensive written submissions, in a further amount of $6,000.00.
Conclusions
It is well established that an application for costs will consist of one or two steps. First, the Court must consider whether an order for costs in favour of one party should be made at all.
Second, if the Court decides that a costs order is appropriate, only then does the Court consider the question of quantum.
It is also the case that, in proceedings under the Family Law Act 1975, it is not the case that costs follow the event. Subsection 117(1) provides that each party to proceedings under the Act shall bear his or her own costs, subject to matters in subsection (2) and certain other sections, none of which are relevant.
The foundation for making an order for costs can be found in s.117(2), which provides that:
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) 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.
The applicable Rules of Court are the Federal Magistrates Court Rules 2001.
Subsection 117(2A) is relevant in this case, but subsections (4) and (5) are not, as they only deal with the costs of the Independent Children’s Lawyer. The Independent Children’s Lawyer in this case has not sought an order for costs.
The Court shall have regard to the matters in paragraphs (a) to (g) of subsection 117(2A), insofar as they are relevant, in considering what order, if any, should be made.
I am not persuaded that an order for costs should not be made because of the relative financial circumstances of the parties. The Applicant is, on his own evidence, out of bankruptcy, and a claimed income of only $12,000.00 in one year, if that evidence were to be accepted, would put him well below the poverty line. His own lawyers, on that evidence, would be waiting a considerable amount of time to receive the $50,000.00 that he claims to owe them.
The Applicant claims that the First Respondent has received the sum of $1.7 million from other court proceedings, which she denies. The Applicant provides no details whatsoever to support that assertion, which on its face sounds far fetched.
Neither party is in receipt of a grant of legal aid.
The Applicant’s conduct in respect of the proceedings has left a lot to be desired. His lawyers cannot escape criticism for the way in which the matter has been conducted.
No point was taken by either of the respondents that the applicant was not a person concerned with the care, welfare or development of the children, under s.65C of the Act. However, it is extraordinary that the Applicant should have commenced proceedings for parenting orders without joining the children’s father as a respondent. He refers specifically to the father in his original affidavit, at paragraphs 6 and 7.
It is hard to believe that the Applicant was not aware of the existence of the parenting Orders made by consent in the Family Court on
15th September 2005, as, on his own evidence, he was living with the First Respondent and the children at the time.[30]
[30] Affidavit of Mr Merriam 26.8.2009 at [4]
The Applicant’s submission in response to the First Respondent’s claim that the orders sought by the Applicant could not be made because they would conflict with the existing orders cannot be accepted. The submission goes:
Firstly, the order in favour of the first husband only provided for the children to spend 2 nights per fortnight with him. This in no way prevents the court from ordering that the children spend time with their stepfather.
Secondly, the father’s evidence was that these orders were not complied with, and the children only saw the first husband for 50 or 60 days over a period of years.[31]
[31] Applicant’s submission page 7
This submission is clearly wrong. The Orders of 15th September 2005 provide at Order 4(a) that the father should have contact with the children:
Each alternate weekend from Friday at 5pm until Sunday at 5pm.
The Applicant’s Initiating Application filed on 26th August 2009 seeks final and interim orders that the children spend time with the Applicant each alternate weekend from 10am Saturday until Sunday at 5pm. The Applicant’s Amended Application filed on 28th September 2009 seeks final and interim orders that the children spend time with the Applicant each alternate weekend from Friday 3.30 pm to Monday 8.30 am.
The Applicant’s submission misstates the facts and would have the potential to mislead the Court. It is a matter of serious concern that this submission was drafted by a solicitor. Solicitors are officers of the Court and have a duty not to mislead the Court.
As to the second leg of the submission, that the parenting orders were not complied with and the children’s father only saw the children for 50 or 60 days over a period of years, that can hardly be a good reason for ignoring a Court Order, as the Applicant did. To suggest that it was not necessary to join the children’s father as a respondent and seek to vary a parenting order in his favour because the order had not been complied with is wrong in law.
The Applicant sought in his Initiating application an order on both an interim and a final basis that the children are not taken out of Australia without his prior written consent. In his Amended Application the order is expanded to include an order for the children’s names to be placed on the Airport Watch List maintained by the Australian Federal Police.
I have read the Applicant’s affidavits of 26th August, 27th August, 28th September and 31st October 2009 very carefully and I am unable to discern any evidence of the need for an injunctive order restraining the children from being removed from Australia or for their names to be placed on the Airport Watch List.
The First Respondent has complained that the following documents were not served on her:
a)The Initiating Application filed on 26th August 2009;
b)The applicant’s affidavit of the same date;
c)The Application for Review filed on 27th August 2009;
d)The Amended Initiating Application filed on 28th September 2009;
e)The Applicant’s affidavit of the same date.[32]
[32] Affidavit of Ms Pike sworn 31 March 2010 at [10]-[17]
She deposed that she received a photocopy of the Amended Application and an unsworn incomplete copy of the affidavit of
28th September 2009 when she returned home on Friday 9th October and found them in an envelope at her door.[33]
[33] Ibid at [20]-[21]
Rule 6.06 provides that service by hand is required for an application starting a proceeding. Evidence of service must be given by affidavit (Rule 6.05).
The Applicant states in his affidavit of 7th April 2010 that:
All the relevant documents to be relied were served upon
[Ms Pike] in due course…[34]
[34] Affidavit of Mr Merriam 7.4.2010 at [9] and [12]
I did not dump or cause to be dumped any documents on
[Ms Pike]’s doorstep. [Ms Pike] was well aware of the proceedings, and had been served, contrary to what she deposed to.
It is not sufficient for the Applicant to claim that the documents were served “in due course”. He could not serve them, because Subrule 6.07(3) provides that in a family law or child support proceeding the person serving the document must not be the party on whose behalf it is served.
The way for the Applicant to have met the First Respondent’s claim that the documents were not served would have been to produce the relevant affidavits of service. He has not done so. The only affidavit of service on the Court file is an affidavit of Mr D sworn (or affirmed) on 12th October 2009, deposing that he served sealed copies of the relevant documents on that day on Mr Terry.
There is no affidavit of service in the Court file relating to the service of any documents on the First Respondent.
Accordingly, I accept the affidavit evidence of the First Respondent on this point.
The Applicant admitted in his affidavit of 7th April 2010 that he telephoned Mr Myers, the solicitor acting for the First Respondent in other proceedings, on 13th October 2009, the day before the Child Dispute Conference, and said “I won’t proceed, tell [Ms Pike] not to come to court.”[35] He further deposed that he was in a depressed hypoglycaemic state and did not want to cause the children any grief and he did not want to put them through Court.[36]
[35] Affidavit of Mr Merriam 7.4.2010 at [14]
[36] Ibid
The Applicant did attend Court the next day, despite his statement to Mr Myers that he did not intend to proceed. The First Respondent attended with the children and the Child Dispute Conference took place.
At the interim hearing on 16th October 2009, Wilson FM dismissed the Applicant’s interim application. It is clear from his honour’s judgment that his decision was based on the evidence of Mr L, the Family Consultant, and Mr L’s account of the views expressed by the children. Had the First Respondent not attended the Child Dispute Conference with the children on 14th October, this evidence would not have been available to the Court at the interim hearing two days later.
The inference that I draw is that the Applicant was attempting to prevent the First Respondent from attending the Child Dispute Conference with the children the next day because he was fearful of what would be said to the Family Consultant.
The Applicant issued a subpoena seeking the return of a computer. This subpoena was set aside by Wilson FM. He then brought an Application in a Case, seeking the return of the computer and a tea chest containing files. His accompanying affidavit refers at paragraph 2 to the parenting proceedings where Wilson FM dismissed his interim application, although he gives the wrong date, and then from there, in a rather clumsy segue, refers to the need for the computer and the files.
The fact is that these were parenting proceedings, and no application for property orders had been made. An Application in a Case is an application for interim or procedural orders, and should only be made if an application for a final; order has been made in the proceeding or the application includes an application for a final order (subrule 4.01(3)).
The Application in a Case only contained applications for final orders. The orders sought were property orders, not parenting orders. Property orders are proceedings in relation to financial matters and, if the Applicant was in fact seeking property orders, he was required to file and serve a financial statement (Rule 24.02). He did not do so.
It is clear that the Application in a Case seeking the computer and the tea chest full of files was brought in parenting proceedings for a purpose other than those proceedings. Like the subpoena, it is a clear abuse of process.
Both the subpoena and the Application in a Case were issued out of the office of the Applicant’s solicitor, Ms Nagle. It is regrettable that a solicitor should be involved in issuing documents that are an abuse of the Court’s process.
The manner in which the applicant’s case has been conducted falls far below the standard that this Court expects.
The applicant has been wholly unsuccessful in these proceedings. It must have been clear to him after the dismissal of the application for interim orders on 16th October 2009 that he faced a difficult task on a final hearing. He filed a Notice of Discontinuance on 25th February 2010.
Discontinuance is covered by Rules 13.01 and 13.02. It was open to the Applicant to file a Notice of Discontinuance when he did. He did not require leave, as no date had been fixed for the final hearing of the application. However, if a party discontinues an application, another party in the proceedings may apply for costs (Rule 13.02). The application for costs was made on 22nd March 2010, within the time allowed by subrule 13.02(2).
I do not accept the Applicant’s explanation for the failure to appear on 1st March, when I reserved the costs of the Respondents and the Independent Children’s Lawyer.
I do not accept the submission put on behalf of the Applicant that:
At no time did the mother’s representatives suggest in writing or verbally, prior to 23 February, that they would pursue the father[37] for costs.[38]
[37] Meaning the Applicant; he is not the children’s father, Mr Terry is.
[38] Applicant’s submission at page 10
The First Respondent sought an order for costs at the hearing on 16th October 2009 on the basis of “the manner in which the proceedings have been conducted”.[39] Wilson FM reserved the parties’ costs of and incidental to the application for interim orders.
[39] [2009] FMCAfam 1103 at [30]
The Applicant was on notice that the question of costs was a live issue.
I am of the opinion that the conduct of the Applicant in relation to the proceedings and the fact that the Applicant has been wholly unsuccessful in the proceedings are circumstances that justify the Court in making an order that the Applicant should pay the First Respondent’s costs.
Indemnity Costs
In an appropriate case, the Court has a discretion to order costs on an indemnity basis. Costs should not follow the event as a matter of course. However, where the justice of the matter, requires, the court may make such order as it considers just. It may depart from the scale of costs prescribed under the Rules but it should not depart lightly from the ordinary Rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind (Kohan & Kohan[40]; Munday & Bowman[41]).
[40] (1992) 16 Fam LR 245; (1993) FLC 92-340
[41] (1997) 22 Fam LR 321; FLC 92-784
The circumstances in which the Court in the proper exercise of its discretion may depart from the normal practice of making an order for costs on a party and party basis are set out in the decision of Sheppard J in Colgate Palmolive Company & Anor v Cussons Pty Ltd[42] at 232-234. Those circumstances include evidence of particular misconduct that causes loss of time to the Court and to other parties, and the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law.
[42] (1993) 46 FCR 225
In the matter currently before the Court, it is clear that the manner in which the applicant’s case has been conducted falls well below the standard required in litigation in this Court or, for that matter, in the Family Court. There are some features that would attract the award of costs on indemnity basis:
·The filing and service of documents that were an abuse of the Court’s process
·The failure to serve documents on the First Respondent in accordance with the Rules, or at all
·The attempt to persuade the First Respondent not to attend the Child Dispute Conference
The fact that the applicant was wholly unsuccessful in the proceedings, the failure to join the children’s natural father as a respondent, the failure to disclose to the Court the existence of the orders made by the Family Court, the seeking of orders without offering any evidence at all and the failure to attend Court, whilst matters for criticism, are not so special or unusual as to warrant the court in departing from the usual rule that cost should be paid on a party and party basis.
Subrule 21.02(2) gives the Court power to:
a)set the amount of costs;
b)set the method by which costs are to be calculated;
c)refer the costs for taxation; or
d)set a time for the payment of the costs.
In my view, this is a matter where the Court should set the amount of costs by ordering a fixed sum. I note that the application had no fewer than eight court events, including an interim hearing.
The First Respondent seeks a fixed sum of $25,000.00, plus a further $6,000.00 for the preparation of the affidavits and written submissions. I am not persuaded that those figures are entirely justified, but it does appear that this is a matter where a great deal of court time was taken up and a great deal of documents were generated, all to no avail as the Applicant chose to discontinue.
I have set the First Respondent’s costs of an incidental to the application at $18,000.00 and the application for costs at $2,500.00, making a total of $20,500.00.
I will hear submissions on time to pay.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3 June 2011
0