Mickler & Majors

Case [2021] FamCA 377

FAMILY COURT OF AUSTRALIA

Mickler & Majors [2021] FamCA 377

File number(s): DGC 1086 of 2014
Judgment of: HANNAM J
Date of judgment: 9 June 2021
Catchwords: FAMILY LAW – COSTS – Where the father seeks that the mother pay his costs on an indemnity basis – Where consideration of the applicable principles – Where the parties reached an agreement at mediation – Where the mother withdraw her consent to the agreement – Where the mother’s conduct added to the time and cost of the proceedings – Where the mother refused to accept an offer of settlement – Where circumstances do justify an order for costs – Where costs order made in the father’s favour on a party/party basis.
Legislation:

Family Law Act 1975 (Cth) s 117

Family law Rules 2004 (Cth) r 19.08

Cases cited:

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225

D & D (Costs)(No. 2) (2010) FLC 93-435

Hawkins & Roe [2012] FamCAFC 77

Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920

Penfold v Penfold (1980) 144 CLR 311

Wrensted & Eades [2016] FamCAFC 46; (2016) FLC 93-697 

Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029

Number of paragraphs: 76
Date of last submission/s: 5 March 2021
Date of hearing: 27 – 29 January 2021
Place: Parramatta
Solicitor for the First Applicant: SCB Legal

ORDERS

DGC 1086 of 2014
BETWEEN:

MR MICKLER
Applicant
AND:

MS MAJORS
Respondent

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

9 JUNE 2021

THE COURT ORDERS THAT:

1.That the mother pay the costs of and incidental to these proceedings from 15 June 2020 to 27 January 2021 and costs of and incidental to proceedings on 28 January 2021 and 29 January 2021 on a party/party basis as agreed or assessed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mickler & Majors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HANNAM J:

INTRODUCTION

  1. A father who has been engaged in a parenting dispute with his former wife in relation to their only child (“the father”) seeks an order that the child’s mother (“the mother”) pay some of the costs he has incurred in the proceedings. In particular he seeks costs in relation to the period following a mediation in November 2019 until the first day of the final hearing in late January 2021, when the proceedings resolved by agreement, together with his costs thrown away for the two remaining days of the final hearing.

  2. The mother opposes the father’s application for costs, claiming…

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AGLC
Mickler & Majors [2021] FamCA 377
Case
[2021] FamCA 377
Decision Date

CaseChat Overview and Summary

In *Mickler & Majors*, heard by Hannam J in the Family Court of Australia, the father sought an order that the mother pay his costs on an indemnity basis. The dispute concerned parenting arrangements for the parties' child, with a history of separation, reconciliation, and previous court proceedings. A key event was a mediation where the parties reached an agreement on most matters, but the mother subsequently withdrew her consent to the proposed orders.

The central legal issue before the court was whether there were circumstances justifying a departure from the usual rule that each party bears their own costs in family law proceedings. The father contended that the mother's conduct, including her refusal to accept a reasonable settlement offer and her failure to comply with court orders, warranted a costs order in his favour.

Hannam J considered the principles governing costs orders in family law, referencing decisions such as *Penfold v Penfold*, *Hawkins & Roe*, and *Wrensted & Eades*. The court noted that while circumstances justifying a costs order need not be exceptional, they must be sufficient to warrant such an order. The judge found that the mother's conduct, particularly her refusal of a reasonable and constructive offer of settlement that mirrored the eventual agreed orders, and her failure to comply with court orders, constituted sufficient grounds to depart from the usual rule.

Consequently, the court ordered that the mother pay the father's costs of and incidental to the proceedings from 15 June 2020 to 27 January 2021, and the costs of the final hearing days of 28 and 29 January 2021, on a party/party basis. The court declined to order costs on an indemnity basis, as sought by the father.

Orders

Orders of the court

DGC 1086 of 2014

BETWEEN:

MR MICKLER

Applicant

AND:

MS MAJORS

Respondent

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

9 JUNE 2021

THE COURT ORDERS THAT:

1. That the mother pay the costs of and incidental to these proceedings from 15 June 2020 to 27 January 2021 and costs of and incidental to proceedings on 28 January 2021 and 29 January 2021 on a party/party basis as agreed or assessed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs.BACKGROUND The mother was born and raised in a European country and travelled to Australia on a tourist visa in or around June 2011, at which time she met the father. She started living with the father in November 2011. The parties married in 2012 and their only child was born in 2012. The parties first separated in 2014 and have essentially been involved in a dispute concerning the parenting arrangements for their daughter, who is now eight (“the child”) since that time. The father first commenced parenting proceedings in the Federal Circuit Court in 2014 but discontinued those proceedings two months later when he and the mother reached some agreement about matters in relation to the child. In 2014 and the years that followed the parties separated and reconciled on many occasions, with the mother leaving with the child and returning to her home country during at least three of those separation periods. Final separation occurred in September 2016 when the mother notified the father by text message that she was travelling to her home country with the child and that he would never see the child again. In November 2017 the father became aware that the mother and child had returned to Australia and he again filed an Initiating Application, this time in the Family Court, seeking that the child’s name be placed on the Airport Watchlist. On 18 July 2018 orders were made with the parties’ consent that provided for the child to spend time with the father on a gradually increasing basis, starting at a contact centre under supervision and progressing to unsupervised overnight time. It is not in contention that the father had not spent time with the child from September 2016 until these orders were made. It is the father’s contention that between August and October 2018 the mother contravened the July 2018 orders on numerous occasions. These breaches included the mother refusing to pay half of the costs of supervised contact as ordered and not making the child available for changeovers at the times specified in the orders. The father filed a Contravention application regarding these breaches in September 2018. The father’s contravention application was ultimately resolved by way of further orders made on 15 November 2018, again with the consent of the parties, which were along very similar lines to the orders made a few months earlier. In February 2019 an order was made for the parties to attend at family dispute resolution following the release of the Family Report but this did not occur until November of that year. When the mediation finally did occur the parties were able to reach an agreement concerning the child’s parenting on all matters other than whether the child’s name was to remain on the Airport Watchlist. It was agreed that the mother was to have sole parental responsibility for the child and that she was to live with her and spend substantial and significant time with the father, including on alternate weekends and half school holidays. The father indicated his consent to orders being made in these terms by signing proposed orders but despite the mother’s initial apparent agreement she did not sign the proposed orders.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The balance of the parenting orders made with the consent of the parties on the first day of final hearing, are in similar terms as agreed at the November 2019 mediation. By the time of the final hearing both parties had amended their applications significantly and neither party was then seeking orders in the terms as agreed in November 2019. As a result, neither party was wholly successful or unsuccessful in relation to these issues in the proceedings.CONCLUSION The High Court in Penfold v Penfold indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order. In Hawkins & Roe[2] the majority of the Full Court said at [147]:Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.[2] [2012] FamCAFC 77 However, in Wrensted & Eades[3] the Full Court held that the analysis of costs in parenting proceedings provided in Hawkins & Roe should not be seen as differentiating between the requirements for a costs order to be made in property and parenting matters. The majority said at [103]:…However if the majority in Hawkins & Rowe, by the use of the words "the occasions on which such an order should be made in a parenting dispute should have some particular features", were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion. [3] [2016] FamCAFC 46; (2016) FLC 93-697 In that case the Full Court upheld the trial Judge's decision to award costs to the mother in parenting proceedings where one of the considerations of the trial Judge in awarding costs was that the father did not consider the mother's offer to settle in relation to a discrete issue where the mother's proposal was “reasonable and constructive”[4]. [4] Wrensted & Eades [2014] FCWA 64 at 104 Attaching considerable weight to the mother’s conduct in relation to the proceedings, particularly where she refused a written offer to settle which was reasonable and constructive and in the same terms as the final orders agreed to and as she failed to comply with court orders, I am satisfied that there are circumstances that justify a departure from the usual rule that each party bear their own costs and that a costs order should be made in favour of the father. In my view it is just that any such order date from 15 June 2020 when the mother began acting for herself after her grant of legal aid was withdrawn.

Ratio Decidendi

Legal Principle Established

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