Nave and Hadden

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAVE & HADDEN

[2016] FCCA 23

Catchwords:
FAMILY LAW – Ruling on costs application.

Legislation:

Family Law Act 1975 (Cth), s.117

Applicant:

MS NAVE

Respondent:

MR HADDEN

File Number:

HBC 463 of 2013

Judgment of:

Judge Burchardt

Hearing date:

2 November 2015

Date of Last Submission:

23 November2015

Delivered at:

Melbourne

Delivered on:

27 January 2016 (by telephone)

REPRESENTATION

Counsel for the Applicant:

Mr Trezise (by telephone)

Solicitors for the Applicant:

Dobson Mitchell Allport

The Respondent:

In person (by telephone)

ORDERS

The respondent pay the applicant’s costs of the Application in a Case fixed at $2,192.50.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 463 of 2013

MS NAVE

Applicant

And

MR HADDEN

Respondent

REASONS FOR JUDGMENT

Ruling on costs application

The applicant mother seeks costs ordered in her favour, fixed at $2,192.50, arising out of proceedings which concluded on 2 November 2015. The respondent father opposes. For the reasons that follow, I am going to make the order that the mother seeks.
The proceeding has been underway since 16 January 2015 when the mother lodged an Initiating Application seeking parenting orders in respect of the children of the parties, X, born (omitted) 2003, and Y, born (omitted) 2006.
Relevantly, for these purposes, I made orders on 18 May 2015, inter alia, that both parties undertake drug testing upon request by the solicitors for the other party. At that time, the respondent was legally represented.
Following a s.11F report, orders were made on 6 July 2015 for a spend-time regime whereby the children live with the mother and spend time with the father as specified in the orders. The matter remains listed for trial in June 2016 in Hobart.
The father’s former solicitors filed a Notice of Withdrawal as Lawyer on 16 September 2015 and that was shortly followed, as chance would have it, by an Application in a Case filed by the mother on 2 October 2015. The Application sought that the children be permitted to depart from the Commonwealth of Australia to (country omitted) and (country omitted) between March 2016 and April 2016.
The Application was accompanied by an Affidavit of the mother also filed on 2 October 2015. This deposed to the parent’s relationship and the children and then gave details of the mother’s desire to take the children to (country omitted) and (country omitted). Annexed to the affidavit is annexure A. It is a letter dated 11 September 2015 from the mother’s lawyers to the respondent, relevantly giving details of the proposed trip to (country omitted) and seeking consent. The Affidavit deposed that no reply had been received.
The Affidavit also annexed as annexure B an email exchange between the parties dated 28 September 2015. The mother emailed the father stating that she wished to take the children to (country omitted) and (country omitted) to visit her sister. It noted that this would coincide with Easter, being a particularly propitious time to visit (country omitted). It also mentioned a visit to (country omitted) and pointed out, accurately in my experience, that the airfares would become more expensive the longer it took for the tickets to be bought.
The father’s response should be set out in full:
“Thank you for your advice regarding this trip. In fact I first heard of this proposal from the girls. It seems that you have filled their head with hopes and dreams for an overseas trip before consulting me. As you are aware, as we have shared parental responsibility for the children you will require my consent to take them outside of Australia. You are aware of this as you have placed this as a condition in your latest proposal for court orders.
I will take the opportunity to advise you that your campaign in the family court has been double edged. I can see that the children are happy with the interim care arrangements however, I have noticed that Sunday afternoon changeover can cause some stress for the girls. The gathering of school uniforms and belongings at the end of a busy weekend when they should be settling and relaxing is not ideal. Further, there is the need to carry overnight bags to school and so forth.
I will soon submit a response to your lawyer regarding your recent proposals. In my response I will be seeking amendments to those orders that restore my personal freedoms and makes for fairer care arrangements.
I will consider your request for overseas travel upon your response to my proposal.
The costs of your overseas travel plans are not my concern.”
The mother’s Affidavit continues to traverse the desirability of overseas travel, noting that both (country omitted) and (country omitted) are Hague Convention countries. The Affidavit noted that the terms of the father’s email response suggested that approval for overseas travel would be conditional upon accession by the mother to demands of the father, a matter the mother described as blackmail.
The Application in a Case was listed for hearing on 2 November 2015. Email exchanges took place between the solicitors for the mother and the father in the meantime as is shown by the annexures to the Affidavit of the mother filed 29 October 2015. They show the solicitors for the mother emailing the respondent on 19 October 2015 about drug screens and the father’s abrupt refusal. In amongst the process of argument about drug screens, on 26 October 2015, the father wrote to the solicitor relevantly stating:
“Also, at no point have I indicated disagreement to Ms Nave taking the children overseas as per the proposal she has outlined.

I will however be seeking compensation by way of care nights with my children. I hope that Ms Nave and I can reach an agreement regarding this adjustment that is in the best interests of the children.”
On 27 October 2015, the father emailed the mother’s solicitor, relevantly asserting:
“In relation to your Application dated 2 October I advise that

I have not at any time refused consent to Ms Nave taking the children overseas at her expense. As can be seen from my email annexed to Ms Nave’s affidavit I was not consulted about the proposed travel by Ms Nave but heard of it from the children. My response to her email does nothing more than state that I would consider her requests upon Ms Nave addressing some of my concerns that seem to have been continually overlooked in these proceedings.
However having said that, I do agree to the children travelling and will sign any documents to facilitate the travel as I believe that it will be a wonderful experience for them. As the proposed travel is for 18 days and includes Easter I would appreciate receiving a proposal from Ms Nave for me to have compensatory contact but do not make this a condition of my consent but it would be an indication of Ms Nave’s goodwill.
I am considering your proposed final orders and will respond in the near future in the hope that these proceedings can be concluded quickly.”
To return to the Affidavit of the mother filed 29 October 2015, it is asserted at paragraph 3, relevantly:
“… While I now seem to have his agreement to my proposed overseas travel, it is evident from the email which appears as Annexure “B” to my affidavit filed 2 October 2015, that his response to my request for overseas travel was conditional upon the terms of my response to his proposed parenting Orders (which are still awaited). I will therefore continue to press for Orders in the terms of Paragraphs 1 and 2 of my Application in a Case.”
It should be noted, of course, that the communication from the father dated 27 October 2015 was the Friday before the mention due on Wednesday, 2 November 2015 and therefore, effectively, two working days before the return.
On 2 November 2015, I made orders by consent which permitted the applicant to travel overseas as she sought with the children and I set a timetable for written submissions on costs. As it happens, through oversight, the applicant’s cost submissions were late but, given the terms of those submissions and the matters raised, there is no unfairness to the respondent in proceeding on the footing that they are before the Court. The father has been well able to respond to them.
The applicant’s costs submissions dated 17 November 2015 point to the total failure of the respondent in the proceeding. They refer to the respective incomes of the parties, being $38,960 per annum for the mother and $83,980 for the father. The written submissions refer to the correspondence which I have already detailed above. The submissions refer to the failure of the father to undertake drug screenings pursuant to existing orders and seek costs fixed in the sum of $2,192.50.
The written submissions of the father filed 16 November 2015 assert that the Application in a Case was never necessary because:
“I have never refused Ms Nave’s request. As appears from my response to her email of 28 September I raised a matter of concern to me namely the confusion to the children in going back to her on a Sunday afternoon rather than my taking them to school on the Monday.”
The submissions repeat the email to the applicant’s solicitor dated

27 October 2015 and go on to say:
“These proposals were unconditional and if either had been accepted we would not be at this point and the matter would have been finished. As with any request that involves the wellbeing of my children, I simply required time to give consideration.”
The submissions go on otherwise to traverse the alleged motivation of the solicitors for the applicant, refer to the basic principle that each party bears their own costs under the Family Law Act 1975 (“the Act”), and submit further in the alternative that no orders should be made for costs incurred after 26 October 2015 because that was when the unconditional offer was made to settle.
The respondent has also filed further written submissions on

23 November 2015, responding to the mother’s submissions. Unsurprisingly, the mother’s application for an extension of time in which to file her written submissions was opposed. In the event that the Court was minded to receive the mother’s submissions, the father’s written submissions respond. As earlier indicated, the late filing of the mother’s submissions has not occasioned any unfairness to the father.
As a paraphrase, the written submissions say that the mother was not wholly successful. The father noted that the mother’s written submissions fail to refer to “my email of 28 October, a copy of which is annexed to these submissions, in which I unequivocally indicated my consent to the children’s travel”. In fact, that email was not annexed to the copy on the Court file but it is already before the Court as earlier indicated. The submissions go on to deal with the financial circumstances of the parties. At paragraph 4, the submission reads:
“My gross income does exceed that of the Mother but I have significant expenses in maintaining a home, paying Child Support and providing for the children in addition to that support. There is not such a disparity in the financial circumstances of the parties as to justify a finding that either alone or in conjunction with other circumstances would justify deviating from the principle that each party should bear their own costs.
The fact that I am self-represented is irrelevant to this application for costs. The Mother’s solicitor concedes that I have every right to represent myself but to say that the exercise of that right has added to the costs incurred by the Mother is not supported by fact.”
Otherwise, the written submissions traverse the various offers made between the parties, but do not, in my view, take the matter further.
Pursuant to s.117 of the Act, the general rule is that each party bears their own costs (s.117(1)). Nonetheless, the Court may, if there are circumstances that justify it in doing so, make such order for costs as it considers justice (s.117(2)).
The Court is, of course, required in considering what order, if any, to make under s.117(2) to have regard to a number of matters. I will deal with those in turn.
The first matter is the financial circumstances of each of the parties (s.117(2A)(a)). The father has not put in issue the figures asserted as to the income of each of the parties. I am entitled therefore to accept that the income of the father is over twice that of the mother ($38,960 to $83,980). Despite the father’s assertions as to his own financial difficulties, the reality is that he is clearly much better off in terms of income than the mother.
The Court is next required to consider Legal Aid, but that is not relevant (s.117(2A)(b)).
The Court is next required to consider the conduct of the parties to the proceedings, including pleadings matters and production of documents and the like (s.117(2A)(c)). In my view, this is not a matter that is of any significance in these circumstances. I have noted the controversy between the parties about the father’s alleged non-compliance with drug screen orders, but on any view that had nothing to do with the filing of the Application in a Case with which I am presently concerned.
The Court is next required to consider whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court (s.117(2A)(d)). Although the father does appear to have failed to comply with previous orders about drug testing, that is, for the reasons given, not relevant.
The next issue is whether any party to the proceedings has been wholly unsuccessful (s.117(2A)(e)). Clearly, the mother has been wholly successful in her Application.
The next relevant matter is any relevant offer to settle (s.117(2A)(f)).
The applicant, by her solicitors, wrote to the respondent on

11 September 2015, relevantly seeking permission to take the children overseas.
Because no reply had been received, the applicant mother herself emailed the respondent on 21 September 2015, pointing out that airfares would be rising.
The reply by email on 28 September 2015 to the applicant mother did not agree to overseas travel, and made any further discussion clearly contingent upon further alteration to the extant parenting orders.
The father’s email to the applicant’s solicitor, dated 26 October 2015, does indicate a preparedness for overseas travel to occur, but is contingent upon compensation by way of makeup time. That is not of itself unreasonable.
Nonetheless, given the father’s exceptionally abrupt and argumentative correspondence style, in my view, it cannot be taken to have the quality of an unconditional offer as he characterises it.
The father’s written submissions, filed 16 November 2015, assert

“I have never refused Ms Nave’s request”. That might be said on one view to be true, but by the same token he clearly did not unequivocally agree for a considerable period of time. His agreement right up until the day of the hearing was always, at least in part, conditional.
Taking the correspondence fairly and as a whole, I think the father did seek to use permission to travel overseas as a bargaining chip, (it was not blackmail, contrary to the unnecessarily pejorative phraseology of the mother’s side of the debate), but that is what it was.
If the father had genuinely never opposed overseas travel, he should have agreed to it forthwith upon receipt of the mother’s first inquiry. It should be noted that I accept the father would be entitled to time to consider such a matter, but he had more than enough time before the mother even emailed him on 21 September 2015. The proposal was always irresistible, on any view.
The Court is required to consider such other matters as are thought relevant (s.117(2A)(g)). In the context of this matter, there are no such other relevant considerations.
Taking all these matters together, it is clear to me that a proper exercise of the Court’s discretion is to order the father to pay the costs sought. This Application in a Case was, in the circumstances, entirely reasonably brought. It should never have been necessary. The unnecessarily difficult responses received from time to time from the father made the prosecution of the case to Court inevitable. While in the end the father surrendered to the inevitable and agreed with orders which, in the circumstances, he could never seriously have hoped to dispute, his final capitulation was simply far too late. Given the financial circumstances disparity to which I have referred, and to which I give weight in the circumstances, it is all too clear that the applicant should have the orders she seeks.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 27 January 2016

[2016] FCCA 23

27 January 2016 (by telephone)

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Costs