MURGIA & PADAVAN
[2019] FCCA 2090
•21 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MURGIA & PADAVAN | [2019] FCCA 2090 |
| Catchwords: FAMILY LAW – Costs – Matters justifying departure from general proposition that each party shall bear his or her own costs – Matters justifying an order for costs – Where behaviour complained of does not fall within a category of behaviour that is so offensive to and an affront to justice that it must be followed with indemnity costs – justifying circumstances to depart from “general rule” created by s.117(1) and to award party/party costs in accordance with Schedule 1 Federal Circuit Court Rules 2001. |
| Legislation: Family Law Act 1975 (Cth), Div 13A, ss.70NCB, 70NDC, 70NEB, 117(2A). Federal Circuit Court Rules 2001 (Cth), Div 21, Sch 1. |
| Cases cited: Re JJT; ex-parte Victorian Legal Aid [1998] HCA 44 Prantage & Prantage [2013] FamCAFC 105 |
| Applicant: | MS MURGIA |
| Respondent: | MS PADOVAN |
| File Number: | PAC 161 of 2019 |
| Judgment of: | Judge Harman |
| Hearing date: | 21 May 2019 |
| Date of Last Submission: | 21 May 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 21 May 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Seton of Ryan & Seton Lawyers |
| Solicitors for the Respondents: | Mr El-Hosni of Genuine Legal |
ORDERS
The Respondent shall pay to the Applicant, as a contribution towards the Applicant’s costs incurred in these proceedings, the sum of $3,600 such sum to be paid within 28 days and thereafter:
(a)Interest shall accrue upon that sum or such portion of it as remains outstanding from time to time at the rate prescribed by Federal Circuit Court Rules 2001; and
(b)The Applicant shall then be entitled to commence proceedings for recovery of that sum in a court of competent jurisdiction.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Murgia & Padovan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 161 of 2019
| MS MURGIA |
Applicant
And
| MS PADOVAN |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today as the consequence of an Application for Contravention filed 13 March 2019.
Today is the first return date of that Application and the date upon which it might ordinarily be anticipated that the application would be heard.
The Application is not pressed in circumstances whereby the alleged contravention, which would appear, to some extent, to be conceded, are cured. In those circumstances, to not press the Application is an appropriate course to take and an abundantly appropriate forensic decision to be made by the Applicant and the Applicant’s legal representatives.
The proceedings are between Ms Murgia, the biological mother of the child whose interests are the subject of the proceedings, being a young lass, X, who has recently turned 16. The Respondent to the Application is Ms Padovan, who is the child’s maternal grandmother and the person with whom X lives.
It is necessary, in order to provide a context to that which is now sought from the Court, an order for costs, to consider the past arrangements for this young lass. They are readily apparent from the material that is filed.
X has lived, for a period of her life, with both her mother and grandmother. X has lived, for a further period of her life, a fairly substantial period it would seem, commencing early in her life, with Ms Murgia and her partner, Mr Murgia. Mr Murgia was understood by the child to be her father. He was, in many respects, her father. Whether it was biologically or legally so it was, from the child’s perception, her reality.
Mr Murgia is not the child’s biological father. He was, as might be described in somewhat antiquated terminology, the child’s stepfather. He might have been best described as the child’s “emotional father”. The child’s biological father has not played any significant role in the child’s life for some little time. Thus, he is not known to young X.
At a time when a dispute arose between mother and grandmother, and the specific circumstances of that dispute are not known, nor need they be for present purposes, X became aware, however that may have been, of the above reality, (i.e. that Mr Murgia was not her biological father). That would appear to be a matter upon which young X placed significant weight.
The revelation of that knowledge to X has led to a dramatic ruction in her relationships, not only with Mr Murgia, but with her mother. No doubt the child might perceive that culpability for the deception as to the true state of affairs regarding her paternity, lies at the feet of Mr and Ms Murgia. That would be an unfortunate view for the child to hold. The affairs of families are deeply mysterious and complex. The arrangements for young X had served her needs well. She was brought up and developed within a loving family structure, including an extended family structure. However, the child’s reaction to that news, upon its receipt, has been disastrous for her relationships, possibly also for her psychological or emotional well-being.
Controversy first arose between the then parties, Ms Padovan and Mr and Ms Murgia, with the filing of an Application Initiating Proceedings by Ms Padovan. That was in January 2019. That application was listed before the Court at relatively short notice and, on its first return date, the parties all agreed on a set of orders that would conclude the matter. Those orders were made on 31 January 2019 and included orders 7 to 12, which are the orders the subject of the contravention, although the contravention application specifically refers to orders 8, 11 and 12. Orders 7 to 10 are a suite of orders under the heading “Family Therapy”. What they require is that Mr and Ms Murgia nominate two suitably qualified family therapists to assist with an inferred therapeutic goal of repair of their relationship with young X.
Order 9 provides that the list, once prepared and presented to Ms Padovan, was to then be the subject of an election, as it were, with Ms Padovan to select one of the two therapists and to advise Mr and Ms Murgia of that election so that the therapeutic process might commence with a more clearly established goal of “re-establishing the relationship between the child and Mr and Ms Murgia”. Order 9 further provides that within four days of notifying of the election of a therapist that all parties would do what was necessary to engage the therapist, ensure the child’s attendance with the therapist and to thereafter comply with all directions and recommendations made by the therapist. Order 10 provides for the payment regime.
It would seem non-controversial that:
a)Mr and Ms Murgia provided the list of suitably qualified family therapists;
b)An election was made by Ms Padovan;
c)That election was not advised by Ms Padovan to Mr and Ms Murgia, whether directly or through her retained legal representatives. Thus, Mr and Ms Murgia were unaware that the election had been made;
d)The therapy proceeded absent Mr and Ms Murgia and without their knowledge that the process, intended to be purposive of a therapeutic outcome, had commenced;
e)The therapeutic process terminated relatively quickly. Upon the engagement of the therapist, a Mr A, the child was extremely resistant to therapy and refused to participate or attend further appointments. Thus, the therapeutic process was discontinued and concluded.
It is submitted that there has been compliance in spirit with the order. I will return to that issue shortly.
Order 11 provides that a mental health care plan be obtained by Ms Padovan for a referral from a general practitioner to an appropriately qualified treating professional, however that might be determined by the general practitioner, and that a copy of the plan as well as the name, address and contact number of the general practitioner and treating professional be provided to the solicitors for Mr and Ms Murgia.
Order 12 provided for the Applicant to enrol in and attend a post-separation parenting program. That enrolment was to occur within 14 days of the orders, (i.e. by mid-February, 2019).
As indicated, it is suggested to be common ground that the alleged contraventions, which have not needed to be agitated and are not the subject of any findings beyond the above agreed facts, have been cured.
It is submitted on behalf of the Respondent that the contraventions, whilst conceded to the extent that what was specifically required to occur either had not occurred or had not occurred within the timeframe that the order provided, arose as a consequence of some miscommunication within the legal practice of Ms Padovan or between the legal practice and Ms Padovan.
As is submitted by the Applicant’s counsel, the obligations created by the orders are personal rather than requiring any intervention, particularly as regards to the family therapy orders, by legal practitioners.
It would seem that the list of qualified practitioners was forwarded directly by Mr and Ms Murgia, or one of them, to Ms Padovan. No response was received by Mr and Ms Murgia from Ms Padovan or her legal representatives.
The costs that are sought in the proceedings are sought on an indemnity basis in the sum of $5,500, including GST, or, in the alternative, in accordance with the Schedule 1 indicative, event based scale of costs incorporated within the Federal Circuit Court Rules 2001 and which I am required to have regard to as a consequence of Division 21 of those rules. By reference to the scale costs are calculated as a sum $4615.68.
I will not engage in a discussion of quantum at this point as the first and fundamental question that must be addressed is whether an order for costs should be made. What those costs might be is irrelevant until the first question is answered in the affirmative.
The issue of costs is somewhat vexed in contravention proceedings. A finding is not made and, accordingly, the various powers set out in Division 13A of the Family Law Act 1975 are of little assistance. Sections 70NCB and 70NDC are not relevant as they would require a consideration of costs against the prosecutor of the contravention in the event that the contravention is not established. I refer to those sections as clearly being inapplicable as, whilst no finding is made that the contravention has occurred, the contravention is, in essence, conceded and the matter proceeds in a manner analogous to a plea with mitigation offered.
The absence of a finding of contravention, in accordance with the application, does not concern me. I am not concerned that in the absence of any specific finding that the relevant sections referred to above are invoked providing, as they do, that if an order is not made in relation to a contravention that the Court must consider making an order for costs against the applicant. It is not agitated that it would be so.
Similarly, I am satisfied that, by reference to section 70NEB, the powers of the Court, in response to a finding of contravention, are not invoked. The necessary findings have not been made. It is not a criticism that the application has not been prosecuted. It would appear clearly conceded that, if prosecuted, findings would be available. However, absent such findings that specific section does not arise.
Things are not, however, as problematic as it may, at first instance, seem as the power to order costs would, I am satisfied, then be found by reference to section 117 which applied to all proceedings, not just part VII Division 13A proceedings.
There are specific exclusions from that more general costs provision, but they do not arise in this case. Those exceptions apply only in the case of a more serious contravention. It is not agitated that this case is such, although the circumstances of the case certainly dictate that the consequence of the non-compliance is serious (i.e. a failed attempt and a missed opportunity at repair of an important relationship or relationships for this child with the adults who have provided significant care, love and affection to her in the past).
I am satisfied that the appropriate course is to proceed under section 117 and on that basis the absence of findings does not preclude an order for costs being considered or made.
The opening portion of section 117 subsection (1) creates what is often referred to as the “general rule” that each party shall bear his or her own costs. That general rule is, of course, subject to the discretion reserved to the Court to make an order for costs. That discretion is contained within subsection (2), authorising the Court to make an order for costs in the event that the Court is satisfied of the dual test (see Re JJT; ex-parte Victorian Legal Aid [1998] HCA 44) of both justification and justice.
Subsection (2A) sets out a list of mandatory or prescriptive considerations, but they are not exhaustive.
Subsections (3), (4) and (5) are not relevant in these proceedings as they are focused upon applications by or involving Independent Children’s Lawyers or Child Welfare Agencies.
I will deal shortly with each of the subsection (2A) provisions.
What must be remarked from the outset, however, to return to the earlier discussion, is what might be meant by the compliance with “the spirit” of the orders. Orders 7 to 10 are, perhaps, the more important of the orders the breach of which was sought to be prosecuted. Those orders provide an opportunity, perhaps the only opportunity before this child’s adult years, to seek to address and re-establish the relationship between X and her mother and father. I use that term deliberately and advisedly in relation to Mr Murgia. He has filled that role, both from the child’s perception and in reality, and, at the risk of conflating the noun and the verb, Mr Murgia has parented and deserves the respect of that title with respect to this child. It is what the child believed and understood until recently disabused of that innocent belief.
The orders set a therapeutic purpose, namely, to re-establish the relationship. The family therapy, whilst it occurred (and thus it might be suggested the only breach was a failure to advise Mr and Ms Murgia of the election as to therapist made), was unsuccessful and predictably so. That is for two reasons.
Notification to Mr and Ms Murgia was important. It triggered their ability to comply with order 9, that is for they to also be involved in the therapy and to do what was necessary so that it might be so. Secondly, and more importantly, the failure to advise the nomination to Mr and Ms Murgia and for the therapy to proceed, if that term might be used, although I would suggest erroneously, without Mr and Ms Murgia’s involvement, undermined and rendered impossible the attainment of the stated therapeutic goal.
It is not possible to assist a child in re-establishing a relationship with persons who are absent the therapeutic process. The amelioration that arises, the mitigation, as it were, is perhaps the child’s persistent attitude, but one might ponder the rhetorical question: What difference might there have been in the child’s attitude if it had been a proper attempt at therapeutic engagement, as was envisaged by the orders, with the therapist seized of information and knowledge from all parties, not only from one, able to use that information and knowledge in their engagement with the child and to seek to persuade the child from their strident rejection of engagement?
Thus, the failure to advise, whilst on its face suggested to be the predominant concern, is, in reality, not the predominant concern. The predominant concern is that the therapy has proceeded without the knowledge or engagement of Mr and Ms Murgia, thus denying them any opportunity to engage, denying the child any opportunity of achieving the purpose of the therapy and, thus, rendering the child’s engagement with that process, it could not be described therapeutic in those circumstances, as potentially or, at least, verging upon abusive. There is no purpose for the child to be put through meeting with Mr A, although it is no criticism whatsoever of him, when the therapeutic purpose simply could not be achieved without Mr and Ms Murgia.
Turning to section 117 I will address each of the subparagraphs in subsection (2A).
Financial circumstances of the parties
They are not known. It might be inferred that the parties have the capacity to meet their own costs or the costs of each other. It is unclear, however, and I am satisfied it would be inappropriate to make such an inference. The Court will simply need to determine the issue without that knowledge.
Whether a party is in receipt of a grant of legal aid
Neither is.
The conduct of the parties with respect to the proceedings
In this case, if one were to combine subsection (c) (Conduct with respect to the proceedings) with subsection (g) (Such other matters as the Court considers relevant) the issue of conduct broadens substantially.
The conduct with respect to purported compliance with the family therapy order is highly important, indeed, central to these proceedings and this application. On the basis of non-notification to Mr and Ms Murgia, any benefit of the order and the child’s engagement with Mr A was rendered nugatory. That is a significant concern and, I am satisfied, by and of itself would be a justifying circumstance in relation to costs.
It could not be less helpful to this child’s best interests and certainly to this child’s engagement or re-engagement in her relationship with Mr and Ms Murgia for the matter to have been gone about as it was. All that it has really achieved is mischief. The child has attended an appointment and refused to engage appropriately. The tools that might have been available to the therapist to engage the child are absent and, thus, the entire benefit of that process denied to X.
I refer to it as disadvantage as there are real issues for this child in the course that she has adopted to take, whether she is supported in that course or not. She has terminated relationships with people of real importance to her. That decision will have life-long impact for the child, at least potentially so.
The child should explore and have the opportunity to explore the ramifications of that decision. That is now denied to her, at least as an intended consequence of the orders, although it is still open to the parties as something, they can voluntarily participate in.
I am not asked to make an order that requires a further attempted engagement. Whilst the application is not before me and, thus, need not be determined, it would seem appropriate that an order is not sought or pressed. In light of what is suggested to be the child’s reaction to the attempted engagement with the therapist, even with the deficiencies of that attempt, it might well be further damaging to either the child or the child’s prospect of a relationship with Mr and Ms Murgia in the foreseeable future. That conduct, however, is highly problematic.
I accept that offered in mitigation that an attempt was made to convey that information by passing it on to the legal representatives then retained by Ms Padovan, although I make clear not the same legal representative as presently retained, although possibly the same practice. Whilst all solicitors within a practice are assumed, for the purpose of conflict and confidentiality, to know what all others know, certainly the circumstances that are described could not be suggested to impugn the current legal representative.
There is the issue, of course, as raised in submissions on behalf of the Applicant, that costs might be addressed as between that practice and Ms Padovan. Indeed, they might be and should be, but that is not a matter that I propose to venture into. That will be a matter for that practice and their client. Certainly, that would be a preferable and potentially far less expensive and onerous process than to address the issue, for example, through Lawcover. But the Court should not intrude into those matters lightly and I am not satisfied that the evidence is sufficient to permit that address.
However, that conduct, that specific aspect of alleged, indeed, conceded non-compliance, perhaps more so the pressing on with therapy in a vacuum with Mr and Ms Murgia completely oblivious to the fact it was to occur or did, in fact, occur let alone being informed of its outcome, is the conduct which is the more reprehensible of the two complained of.
Proceedings necessitated by non-compliance
Clearly that is so.
Failure to comply with an order must be, of itself, a significant issue. It is a matter of public policy which concerns the Court whenever its orders are not complied with, whether by their terms or their spirit or both.
In this case, and whilst it is submitted that the spirit of the order is complied with, I have some difficulty accepting that it is so. A therapeutic purpose simply cannot be achieved without the engagement of all who are relevant to the attainment of that goal. In this case, that reality must have been apparent not from the perspective of legal advice or a proper and nuanced understanding of the order, but a simple understanding of the purpose of the order itself. It was to re-establish a relationship with two particular persons who were not then even aware that the process was occurring, let alone involved in it. It beggars belief that the appointments would proceed without Mr and Ms Murgia. It is contrary to common sense to believe that any person could think that proceeding with the process in those circumstances, even if labouring under the erroneous belief that the selection of therapist had been passed on when it had not been, would achieve any purpose whatsoever. Indeed, it is not only mischievous, but potentially destructive of the very opportunity and the very therapeutic goal that was set. Thus, the failure in those circumstances is also a significant issue that I am satisfied would fall, in balance, in supporting a finding that a justifying circumstance exists and that it is just and equitable for an order to be made.
Of course, one cannot compensate through financial recompense or reimbursement of costs expended, for example, the missed opportunity that this circumstance presents; the potential to disabuse X and to thus permit her to continue to labour under a delusional belief that her mother, Ms Murgia, and father, Mr Murgia, have done anything wrong by her. A secret, the longer kept, becomes the darker and more destructive. Indeed, that has played out for young X. When she has become aware of what has, for her, been a secret, albeit a premise that has served her needs well, it has been catastrophic. She has found that her reaction is dark and deep indeed.
Whether a party has been wholly unsuccessful
This is not particularly relevant. It is difficult to understand how one might have success in a circumstance such as this. What is achieved is real disadvantage for X. Nothing can compensate for that.
Whether a party has made an offer in writing
There are not offers as such, but certainly demonstrated chasing up of the position, correspondence seeking a response. It might have triggered, for example, a review of the file to indicate that the information had been provided and to then provide it, albeit outside of the timeframe the order provided, but one would have hoped, before Mr A’s engagement with X, which has ended so catastrophically.
In all of those circumstances I am satisfied that it is appropriate and justified to make an order for costs. I am satisfied that it is just that an order be made, although, again, I make clear that it will not compensate Mr and Ms Murgia for the missed opportunity, merely that which they have expended in seeking to obtain compliance with and full exploration of that opportunity, which opportunity is in reality denied, possibly forever. It does not compensate for the real disadvantage that X now experiences; the non-practice of an important relationship, a view towards those relationships which does not bode well for her emotional health and does not bode well for the resumption of those relationships.
I am not satisfied that the relevant criteria, as discussed by the Full Court in Prantage & Prantage [2013] FamCAFC 105 and the thorough and erudite review of appellate and Superior Court precedent undertaken therein, is demonstrated in this case. I do not propose to expand upon that view, simply that the behaviour that is complained of, whilst it justifies an order for costs, does not fall within a category of behaviour that is so offensive to and an affront to justice that it must be followed with indemnity costs.
That would then require that I have regard to Division 21 of the Federal Circuit Court Rules and schedule 1. Exhibit A sets out a calculation of costs. The only variance that I would have therewith is as to whether the costs are awarded by reference to item 1 or item 3.
Item 1, as is sought, deals with initiating or opposing an application. The application that is brought, however, is a specific parenting application, a contravention application. I am satisfied it would be more appropriate for that to be addressed by reference to item 3: an interim or summary hearing application. There are other alternatives available, including item 2, seeking interim orders, although the orders that are sought in a contravention are not essentially interim or interlocutory in nature. I am certainly satisfied that item 11, an application for enforcement, would not be the relevant provision. That is, after all, an application for enforcement by a Registrar, an application that can be dealt with in Chambers exercising delegated authority. Similarly, item 10 that deals with enforcement is not, I am satisfied, appropriate in this case. It is clearly directed to enforcement and matters such as location orders.
Accordingly, I propose to proceed on the basis of item 3. That would substitute the lump sum amount of $1,867 instead of $2,241.
I am satisfied that the half day hearing fee as claimed, item 13, is appropriate. The matter is now dealt with at midday. That is most assuredly half a day when the matter was listed at 9.30am.
I am satisfied that the advocacy loading, item 12, is appropriate.
I do not propose to allow travel costs. I am satisfied they are properly addressed in the half day hearing and advocacy loading fee.
Photocopying is certainly a disbursement allowed by item 15, albeit at a somewhat generous rate.
Those amount to $3,611.68. For the sake of simplicity, if nothing else, I propose to round to the slightly smaller amount $3,600.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 25 October 2019
Key Legal Topics
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Civil Procedure
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Costs
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Jurisdiction
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