Mollison and Levy

[2020] FamCA 149

FAMILY COURT OF AUSTRALIA

MOLLISON & LEVY [2020] FamCA 149

FAMILY LAW – COSTS – Application for costs of review of Senior Registrar decision – Where the father was wholly unsuccessful – Where the father’s conduct in litigation does not warrant an order for costs – Application dismissed.

Family Law Act 1975 (Cth) ss 117

Hawkins and Roe (2012) 47 Fam LR 52
Prantage & Prantage (2013) FLC 93-54

APPLICANT: Ms Mollison

RESPONDENT: Mr Levy

FILE NUMBER: SYC 492 of 2017

DATE DELIVERED: 11 March 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 11 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Santo Family Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. That the application of the mother filed 22 January 2020 seeking costs of the proceedings heard on 20 November 2019 be dismissed.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 492 of 2017

Ms Mollison

Applicant

And

Mr Levy

Respondent

REASONS FOR JUDGMENT

1. On 22 November 2019 I delivered reasons and made orders in relation to a review of a decision of the Senior Registrar about the parenting arrangements for a child.

2. The mother now seeks an order that the father pay her costs of those proceedings.

THE LAW

1. Section 117 of the Family Law Act 1975 (Cth) governs costs. S 117(1), (2) and (2A) relevantly provide:

   Costs

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)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), (4A) 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.

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

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

   (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (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;

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

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

   (f) 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; and

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

2. There has long been a distinction drawn between the application of the law in children’s cases as opposed to property cases.

3. In Hawkins and Roe (2012) 47 Fam LR 526, dealing with an appeal against a costs order by the trial judge against the father, who had been unsuccessful in his application for shared parenting, The Full Court stated at 529:

   [13] In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

   [14] In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

4. Their Honours further stated at 549:

   [146] While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father’s conduct of his case at the trial. Counsel for the mother conceded in oral submissions before us that at no point during the trial did his Honour direct the father to cease repetitive questioning, or to move his questioning more quickly, for example.

   [147] While 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.

   [148] On the evidence before the judge in this case an order for costs should not have been made.

5. The Full Court has also drawn a distinction between the conduct of a party as a litigant and the conduct of a party as a parent.

6. In Prantage & Prantage (2013) FLC 93-544 the Full Court stated at 104:

   We accept that it could be argued that a party’s conduct as a parent and their conduct as a litigant are intertwined. Nevertheless, we have difficulty in accepting his Honour’s statement, at [50], that a failure to foster a parent’s relationship with a child or a refusal to work with a “social scientist” to repair a relationship could themselves lead to an order for indemnity costs. These are matters that seem to us to relate to a party as a parent, not as a litigant.

7. The last matter to be noted is that this is a review of a decision of the Senior  Registrar. As the High Court has made clear, the delegation of judicial authority to a Senior Registrar is subject to the condition that such a decision must always be able to be reviewed by way of hearing de novo.

8. It follows therefore, that there cannot be any consideration, in the exercise of judicial discretion in that de novo hearing, of the fact that the matter was heard before by the Senior Registrar. That caution must also apply to any application for costs of the hearing de novo.

9. In that respect, a proceeding by way of hearing de novo is different from a hearing by way of appeal.

10. Each of the parties has filed written submissions and I propose to consider their submissions having regard to these statements of the law.

THE COMPETING APPLICATIONS

1. By an Application in a Case filed 22 January 2020, the mother seeks orders that the father pay her costs of and incidental to the application of the father to review the orders of the Senior Registrar. That application was contained in an Amended  Application in a Case filed 11 October 2019.

2. She also seeks leave to apply, out of time, for costs in relation to an Application in a Case filed by the father on 19 September 2019. Since the Amended  Application filed 11 October 2019 replaced the Application filed 19  September  2019, there is no utility in seeking costs of the earlier application.

3. The mother’s costs of the proceedings to review the decision of the Senior  Registrar are quantified at $9,444.29. The evidence does not allow me to determine whether those costs are calculated at scale or in accordance with a costs agreement.

4. In support of her application, the mother relies on an affidavit sworn by her on 19 December 2019, a Financial Statement sworn 2 October 2019 and written submissions.

5. The father opposes the making of any order for costs. He relies on an affidavit sworn by him on 5 February 2020 and a Financial Statement sworn on 22  January  2020.

6. There is a significant disparity in the financial position of the parties.

7. The mother works part time and earns $57,200 per annum.

8. The father earns $4,313 per week or $224,276 per annum.

9. The mother relies on the father’s conduct but, with the exception of one matter, she details his conduct as a parent rather than as a litigant. On behalf of the mother it is submitted that the father’s failure to agree to supervision by a supervisor nominated by her is a relevant factor. In written submissions, the mother stated:

   It was open to the father to agree, even on an interim basis, to the mother’s proposed supervisor in order to recommence time...

10. Having regard to the fact that the issue for determination was whether or not the father’s time should be supervised, I do not accept that his failure to accede to the mother’s proposal is relevant.

11. I do not accept the submission on behalf of the mother that the proceedings were necessitated by the failure of the father to comply with a previous order of the Court. As is stated in the written submissions on behalf of the mother, the proceedings were necessitated by the father’s escalating hostility towards the mother in the presence of the child.

12. I accept that the father was wholly unsuccessful.

13. I do not accept that the father’s conduct of the litigation, even where he was wholly unsuccessful, justifies the making of an order for costs in parenting proceedings.

14. The application will be dismissed.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 March 2020.

Associate:

Date:  11/03/2020