Naylor & Naylor (No 2)
[2021] FCCA 1572
•20 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Naylor & Naylor (No 2) [2021] FCCA 1572
File number(s): ADC 4381 of 2020 Judgment of: JUDGE BROWN Date of judgment: 20 July 2021 Catchwords: FAMILY LAW – application for costs order following interim hearings – assessment of legal principles applicable to costs – nature of review proceedings – where respondent sought review of proceedings – where respondent has been unsuccessful in review proceedings – child related proceedings – where respondent sought to alter longstanding parenting arrangements for children – where there has been no significant change of circumstances – where proceedings between parties have been vigorously contested – where there are mutual allegations of child abuse, neglect and substance abuse – assessment of risk Legislation: Australian Constitution Ch III
Family Law Act 1975 (Cth) pt VII, div 12A, ss 60CC, 68LA, 69ZN, 69ZQ, 69ZR, 117
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Federal Circuit Court Act 1999 (Cth) ss 3, 102, 103, 104
Federal Circuit Court Rules 2001 (Cth) Pt 20, rr 21.02, 21.10, 21.15, 21.16
Public Service Act 1999 (Cth)Cases cited: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Harris v Caladine (1991) 172 CLR 84
Inthe Marriage of Kohan (1992) 16 Fam LR 245
Naylor & Naylor [2021] FCCA 844
Uddin v Minister for Immigration & Anor [2017] FCCA 500Number of paragraphs: 76 Date of hearing: 15 June 2021 Place: Adelaide Solicitor for the Applicant: Degaris Lawyers Counsel for the Applicant: Mr Boehm Solicitor for the Respondent: Ryans Lawyers Counsel for the Respondent: Ms Boyle Counsel for the Independent Children's Lawyer: No Appearance ORDERS
ADC 4381 of 2020 BETWEEN: MS NAYLOR
Applicant
AND: MR NAYLOR
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
20 JULY 2021
THE COURT ORDERS THAT:
1.The respondent pay the applicant a lump sum of costs fixed at TWO THOUSAND DOLLARS ($2,000.00).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Naylor & Naylor (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
Family law proceedings, involving the care of young and vulnerable children, very often have the potential to precipitate extreme emotions in the parties to such proceedings. For obvious reasons, such strong emotions do not always assist individuals to make calm and objective decisions regarding the approach to be adopted in their litigation and the appropriateness of the applications which are ultimately made.
The parties to proceedings under the Family Law Act 1975 (Cth) (‘the Act’) are not usually experienced litigators and do not have deep pockets. In such circumstances and in deference to the inherent emotional quotient in the vast majority of family law cases, the general rule, in family law proceedings, is that the parties bear their own legal costs in them, pursuant to the provisions of section 117 of the Act.
However, this rule is subject to variation by the Court, if the overall circumstances of the case warrant that one party pay or contribute towards the costs of the other party concerned, and the Court considers that it is just to make such an order.[1]
[1] Family Law Act 1975 (Cth) s 117.
These reasons for judgment are directed towards the resolution of such an application for costs. It follows after a vigorously contested series of interim hearings that concern the parenting arrangements for two children aged nine and six, in which each of the parties concerned alleged that the other parent posed a risk to the children concerned.
Given the issues relating to the protective concerns of the parents, at an early stage of the proceedings, on 18 November 2020, Senior Registrar Heuer appointed an Independent Children’s Lawyer to represent the interests of the two children.
In subsequent proceedings, the conduct of the Independent Children’s Lawyer became a matter of controversy. This led to the protraction of the proceedings, and an initial interim decision of Senior Registrar Heuer was subject to review, by me, on 20 April 2021.
BACKGROUND
The parties to the proceedings are Ms Naylor (“the mother”) and Mr Naylor (“the father”). They are the parents of X born in 2012 and Y born in 2015.
The mother seeks an order that the father pay her costs incurred in the review proceedings. It is her position that the review application was ill-considered and she forewarned the father of her view, and indicated that she would be seeking costs, if he proceeded. She contends that her position has been affirmed by the outcome of the review proceedings.
The parties to these proceedings were in a relationship for approximately nine years that ended around September 2019. At separation, the two children lived with their mother. The mother commenced proceedings on 14 September 2020 seeking orders that would have the effect of confirming the children’s living arrangements, and creating a clear regime for the children to spend time with their mother. At this early stage, she alleged that the father had substance abuse issues and suffered poor psychiatric health.
The father responded to the mother’s Application in mid-December 2020. He sought a shared care arrangement. He alleged that X and Y were subject to risk, in their mother’s care, because she suffered from depression and had screamed and yelled at the children during the relationship. Essentially, each party asserted that the other was a compromised parent to a significant degree.
It was in this context that orders were made, by Senior Registrar Heuer, for the appointment of an Independent Children’s Lawyer for Y and X. It was also ordered that the parties attend a Child Dispute Conference on 4 February 2021. The parties were also subject to drug urine analysis, as directed by the Independent Children’s Lawyer.
On 18 November 2020, Senior Registrar Heuer ordered that X and Y live with their mother and spend regular defined periods of time, with their father, on alternate weekends and on Wednesday afternoons.
She directed that the case return to Court, on 9 February 2021, following the appointment of the Independent Children’s Lawyer and the parties’ attend a Conciliation Conference, which was directed towards the potential resolution of property issues arising between them.
On 9 February 2021, Senior Registrar Heuer had Affidavit material, from each of the parties concerned. In addition, she heard submissions from the solicitors for each of the parties, as well as from the Independent Children’s Lawyer.
In this context, the earlier orders of the Court, made in mid-November 2020, concerning parental responsibility and the children’s living arrangements were confirmed and further orders were made for the father to spend specified periods of time, with the children, including during the forthcoming school holidays and on X’s birthday.
In the period leading up to this interim hearing, the Independent Children’s Lawyer, as she was entitled to do, wrote to the parties to inform them of the content of her interviews with the children concerned and to provide them with her view as to the appropriate outcome of the upcoming interim hearing.
As has been previously indicated, the contents of this letter and its utilisation in a subsequent Application in a Case became controversial. In any event, ostensibly at least, the letter in part led to the father making a further interim application, in respect of parenting arrangements for the two children, on 15 February 2021.
Essentially, on the basis of the father’s concerns regarding the risk arising from the mother’s care of the children, he sought to change the long standing arrangements for X and Y’s care, so that the two children concerned should live with him and spend only professionally supervised time with their mother.
This Application was supported by evidence from an adult child of the father, who had lived with the parties during their relationship and the contents of the letter forwarded by the Independent Children’s Lawyer.
At his request, the father’s Application was listed urgently, before the Senior Registrar, on 1 March 2021. The Senior Registrar dismissed the Application concerned and ordered the removal of the Independent Children’s Lawyer, from the court file. No order for costs was made, on this occasion, although clearly the father had been totally unsuccessful in his Application.
It was this Application, which was subject to review, before me. The review was heard on 13 April 2021 and, again, was unsuccessful. [2] The mother seeks her costs in respect of the review hearing, which she has calculated to be at a minimum $1,600.00. Her fees in respect of the case to date are considerably greater, amounting to just over $27,000.00.
[2] See Naylor & Naylor [2021] FCCA 844.
Essentially, it is the mother’s position that the review proceedings, commenced by Mr Naylor, lacked merit, given the outcome of the earlier interim proceedings. As such, she has been put to unwarranted legal expense, for which she should be compensated.
In these circumstances, she relies on a letter sent by her solicitor to the father’s solicitor, dated 23 March 2021, in which her solicitor wrote in the following terms:
The purpose of this letter is to put your client on notice that if he proceeds with this Application and the decision of the Senior Registrar is upheld, then we are instructed to seek an Order for costs.
The father was entirely unsuccessful in his previous Application before the Senior Registrar. We suggest his Application is bound to fail as it will be highly unlikely that the Court will order a complete change in residence at an interim stage of proceedings without the opportunity for evidence to be tested by way of cross-examination.
It is our view that the father’s Application is without merit and the parties should instead be focussed on negotiating a set of orders for when this matter returns to Court in May.
We invite your client [to] withdraw his Application for Review.[3]
[3] See Annexure 4 of Ms Naylor’s Affidavit filed 9 April 2021.
On the other hand, it is the father’s position that it would amount to an improper exercise of the Court’s discretion to make the costs order sought by the mother. In this context, it is the submission of his counsel, Ms Boyle, that the father was entitled to seek a review of the decision of the Senior Registrar, given she was exercising delegated judicial authority.
In addition, it is his position that the issues raised by him, on review, arose in the context of a finely balanced case, which raised matters relating to the role of an Independent Children’s Lawyer in contested interim proceedings. As such, merely because the Court took a contrary view to the one advocated by him, it cannot be said that his Application was wholly unmeritorious.
THE NATURE OF REVIEW HEARINGS
The Federal Circuit Court is a busy first instance Court, exercising a broad jurisdiction in both Family Law and more general Federal Law cases. It is established pursuant to the provisions of Federal Circuit Court Act 1999 (Cth) (‘the FCC Act’).
Pursuant to section 3 of the FCC Act, the Court is directed to operate as informally as possible and to use streamlined procedures. In this context, pursuant to sections 102 and 103 of the FCC Act, the Court is granted the authority to delegate designated powers to Registrars of the Court.
The various powers so delegated are delineated in Part 20 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). In Uddin v Minister for Immigration & Anor,[4] Judge Street said as follows, in respect of the Court’s Registrars:
The Registrars of this Court perform a most essential and important part of the work of the Court and the management of matters before the Court. Very large volumes of matters are dealt with by Registrars in first directions hearing, substantial hearings and callovers conducted by Registrars under the rules and legislation.[5]
[4] [2017] FCCA 500.
[5] Ibid at [9] (Judge Street).
In my view, the essential rationale of such delegations is to assist the Court to manage the volume of work coming before it to ensure that applications are dealt with expeditiously. This is not only of importance to litigants in individual cases but for the management of the justice system as a whole.
It is incumbent upon the Court that it utilises appropriate case management procedures so that the system, as a whole, may proceed efficiently and the vast majority of cases are heard within a reasonable time frame. This not only benefits individual users of the Court but society generally, as it ensures the fair and equitable allocation of judicial resources.
In Aon Risk Services Australia Ltd v Australia National University,[6] French CJ indicated as follows:
The adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.[7]
[6] (2009) 239 CLR 175.
[7] Ibid 189 [23] (French CJ).
The delegation of powers to Registrars is an initiative directed towards the proper and efficient use of public resources, with the aim of streamlining court processes and enhancing access to justice. Pursuant to section 103(2) of the FCC Act, when a Registrar exercises a power under delegation, such power is taken to have been exercised by either the Court itself or a Judge of the Court.
However, at the same time, the applicable legislation recognises that there must be safeguards in respect of such delegations to those who are not the holders of judicial office and so authorised to dispense the judicial authority of the Commonwealth, pursuant to Chapter III of the Constitution. It being the case that Registrars are appointed under the provisions of the Public Service Act 1999 (Cth) and thus exercise a statutory power, rather than a judicial one.
The relevant safeguards are provided in section 104 of the FCC Act and the corresponding rules. In general terms, a party to proceedings, in which a Register has exercised any delegated power, is entitled to a hearing de novo, before a judge of the Court. In a hearing de novo, the Court undertakes the hearing concerned afresh, and has the power to admit fresh evidence.
In Harris v Caladine,[8] the High Court said as follows, in respect of the delegation of judicial power under the Act:
It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court's jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.[9]
[8] (1991) 172 CLR 84.
[9] Ibid 95 (Mason CJ and Deane J).
The purpose of a hearing de novo is to ensure appropriate oversight of delegated powers and to ensure that judicial decision making remains within the control of judges. However, in my view, the existence of such a power to review does not envisage that litigants are absolved from the application of any case management principles or of the responsibility to consider the implications, including those relating to costs, of bringing an application for review.
Indeed because there has been an earlier determination, it is arguable that greater rigour is required before the review process is engaged, particularly in respect of children’s proceedings given the special and idiosyncratic principles relating to them, as delineated in Division 12A of Part VII of the Act.
CHILD RELATED PROCEEDINGS
The Act was significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Through this amendment, the legislature has made significant directions as to how courts, such as this one, are to conduct “child-related proceedings”. These provisions are contained in Division 12A of Part VII of the Act. These provisions apply at both the interim and final stages of a hearing, and therefore have application to any application for review.
Pursuant to section 69ZN the Court is required to consider a number of principles when proceedings relate to decision making for children. These principles are as follows:
a)the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings;
b)the court is to actively direct, control and manage the conduct of proceedings;
c)proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect;
d)proceedings are to be conducted in a way the will promote cooperative and child-focused parenting; and
e)proceedings are to be conducted without undue delay, formality and legalism.[10]
[10] Family Law Act 1975 (Cth) s 69ZN.
Pursuant to section 69ZQ, the Court is vested with a number of duties in order to enable it to give effect to these principles. It may:
a)decide which issues require full hearing and which may be dismissed summarily;
b)decide the order in which issues are determined or what steps should be taken to determine issues;
c)in deciding whether or not a particular step is taken, consider the cost implications of such a step;
d)use appropriate technology;
e)use family dispute resolution or family counselling where appropriate;
f)deal with as many aspects of the case as possible on a single occasion and if appropriate without the physical attendance of the parties.[11]
[11] Ibid s 69ZQ.
As a corollary to these duties, the court is provided with certain powers pursuant to the provisions of section 69ZR. At any time in child related proceedings, it may:
a)make a finding of fact;
b)determine a matter arising out of proceedings;
c)make an order in relation to an issue arising out of proceedings.[12]
[12] Ibid s 69ZR.
These various principles and duties have been collectively described as procedures designed to make proceedings relating to children ‘less adversarial’. In enunciating them, the legislature recognised that unduly protracted litigation is usually not helpful to any child, who is the subject of such litigation. It also certainly does not encourage those who are involved in caring for the child to have a cooperative or collaborative approach towards the child’s parenting.
Litigation regarding the parenting of children is usually expensive, both financially and emotionally. At the conclusion of proceedings, the parties concerned are likely to remain in some form of contact with each other throughout the remainder of their lives, as they will be connected by the shared relationship to their children and quite possibly, with the effluxion of time to their grandchildren.
This renders family law litigation distinct to other forms of litigation, such as an action about a contract or a tort. In the former case, the parties must patch up their relationship, if they can, at the end of the proceedings and attempt to co-parent their children in a constructive and amicable manner. In the latter case, the parties may choose to never see each another again, and so the quality of any future relationship between them is irrelevant.
The principles outlined in Division 12A of the Act recognise that it is in a child’s best interests for those involved in their care to avoid, as far as possible, the deleterious consequences of litigation. Court proceedings are rarely a constructive process, and is often focussed on finding fault and emphasising the failings of the other party, and does little to foster a constructive parenting relationships.
The principles as outlined in section 69ZN of the Act appear to have the following objects, and provide that Courts are directed to:
·discourage unnecessary litigation;
·closely manage the litigation which cannot be avoided, for example: cases that involve an unreasonable risk of harm to the child or matters involving family violence;
·focus the minds of the parties concerned on the potential harm, which can occur to children through litigation as a result of parental conflict; and
·invite the parties to consider the fiscal implications, both private and public, in the conduct of such litigation.
This list is not intended to be an exhaustive one. At the same time, and as mentioned above, the Court is cautioned against overlooking the need to conduct proceedings in a way that will ensure that children are protected from harm arising from neglect, abuse or family violence.[13]
[13] Ibid s 60CC.
The principles seem to be directed to allow the Court to fetter, to some degree, the freedom provided through a traditional adversarial system, which enables parties to investigate every issue that may possibly be of some interest to them, particularly if this untrammelled freedom has implications for the best interests of any child concerned.
The rationale is that proceedings relating to children, concern the interests of a person who is not strictly a party to them – this being the child or children concerned. Consequently, these proceedings can be likened to an inquiry, and as such are not entirely adversarial.
In my view, these principles remain germane to review applications under section 104 of the FCC Act. A litigant, and indeed the Court, is not absolved from their application merely because the hearing concerned is a hearing de novo as a consequence of the principles enunciated by the High Court in Harris v Caladine.[14]
[14] (1991) 172 CLR 84.
THE LEGAL PRINCIPLES APPLICABLE TO COSTS
Section 117(1) of the Act abolishes for the purpose of family law proceedings, the general rule that, in civil proceedings, costs follow the event. It provides that each party should bear his or her own costs.
However, pursuant to section 117(2), if the Court is of the opinion that there are circumstances that justify it in doing so, it may, subject to a number of stipulated considerations, make such order as to costs as it considers just.
The relevant considerations are set out in section 117(2A) of the Act and are as follows:
•The financial circumstances of each of the parties to the proceedings;
•Whether any party to the proceedings is in receipt of legal aid;
•The conduct of the parties to the proceedings, including in respect of issues of discovery and production of documents;
•Whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court;
•Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
•Whether any party has made an offer in writing to settle the proceedings and the terms of any such offer;
•Such other matters as the court considers relevant.[15]
[15] Family Law Act 1975 (Cth) s 117(2A).
The Court’s discretion to make an order for costs is a wide one and includes the authority to make an order for indemnity costs. However, the discretion remains one which must be exercised carefully and judicially.
In this context, orders for indemnity costs are extraordinary or exceptional in nature. The Full Court of the Family Court noted Inthe Marriage of Kohan that an order for indemnity costs as ‘being a very great departure from the normal standard’.[16] In this context, the Full Court said as follows:
The court 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.[17]
[16] (1992) 16 Fam LR 245, 254 (Strauss, Lindenmayer and Bulley JJ).
[17] Ibid 258.
There is no closed category of cases in which indemnity costs may appropriately be awarded. However, in Colgate Palmolive Co v Cussons Pty Ltd,[18] the Full Court of the Federal Court indicated that the kinds of situation in which indemnity costs might be considered included those in which a litigant had:
•Commenced or continued an action knowing it to have no chance of success;
•Made false or irrelevant allegations of fraud;
•Made groundless allegations, which prolonged the case concerned; and
•Imprudently refused an offer to compromise.[19]
[18] (1993) 46 FCR 225.
[19] Ibid 231, 233 (Sheppard J).
If the Court determines to make an order for costs, it has a wide discretion as to the calculation of such costs. Pursuant to Rule 21.02(2) of the Rules:
In making an order for costs in a proceeding, the Court may:
(a)set the amount of the costs; or
(b)set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of the costs, which may be before the proceeding is concluded.[20]
[20] Federal Circuit Court Rules 2001 (Cth) r 21.02(2).
Accordingly, the discretion provided by Rule 21.02(2) provides potential different mechanisms for awarding costs, either under the Rules of this Court or the Family Court, or indeed on a discretionary basis. This is reflective of the potential differences, particularly in respect of complex issues, which may arise from the nature of the jurisdiction conducted in each Court.
However, Rule 21.10 of the Rules provides a minimum level of entitlement, in respect of any award of costs, if made by the Federal Circuit Court. The rule provides as follows:
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.[21]
[21] Ibid r 21.10.
Pursuant to Rule 21.15 the Court may certify that it was reasonable for any party to employ an advocate to appear on his or her behalf in a proceedings. If such a certification is made, the amount payable for counsel to appear is the ‘daily hearing fee and advocacy loading in accordance with parts 1 and 2 of Schedule 1’.[22]
[22] Ibid r 21.16.
Rule 21.10 and the Schedule under it create a scale of costs by reference to the occurrence of fixed events.[23] The procedure in question is clearly designed to allow the calculation of costs following the various procedural stages of litigation from filing to finalisation with judgment.
[23] Ibid r 21.10.
It is a system which is most amenable, in its application, to less complex forms of litigation. In my view, this mechanism aligns with the objects of the Federal Circuit Court as set out in section 3(2) of the FCC Act, which include the following:
•To enable the Federal Circuit Court to operate as informally as possible in the exercise of judicial power; and
•To enable the Federal Circuit Court to use streamlined procedures; and
•To encourage the use of a range of appropriate resolution dispute processes.
DISCUSSION
The proceedings between the parties have been vigorously contested and largely centre on reciprocated allegations of child abuse and neglect within the context of substance abuse and mental illness. As such, the Court has been called upon to assess risk. This cannot be an exact exercise due to the nature of an interim hearing.
Necessarily, given their polarised position, the parties are likely to have very different views as the extent of risk arising and the appropriate response to it. For that reason, the Court ordered that X and Y should be represented in the case separately to their parents.
As I have already indicated, the Independent Children’s Lawyer is to be regarded as a party of equal importance to the parents in these proceedings. In addition, they are under a statutory duty to advocate the position, which they believe will best accommodate the best interests of the children concerned.[24]
[24] Family Law Act 1975 (Cth) s 68LA.
In this case, part of the context of the review was that Mr Naylor sought to argue that matters privately stated by the Independent Children’s Lawyer should be agitated in Court on the basis that there was a tension between the position of the Independent Children’s Lawyer and what she had privately stated to the parties. Mr Naylor also wished to put more evidence before the Court, which ultimately did not influence the previous outcome of the case. In my view, this evidence was largely historical and anecdotal in nature.
In my view, for reasons already provided, the Application, so far as the letter of the Independent Children’s Lawyer is concerned, was misconceived. It would have been in the best interests of the children if the parties themselves had been able to agree on an interim position in respect of the care of the two children concerned. The position of the Independent Children’s Lawyer, at the hearing before the Senior Registrar, was consistent with the position she put in her letter to the parties.
As I have observed above, children’s interests are usually not well served by repeated applications in respect of the same or similar issues. In my view, these considerations apply equally to applications for review, as they do to repeated applications made for interim orders.
Neither party can financially afford the rigorously contested litigation on which they have embarked. The father is not currently employed. In the past, he worked in a factory as a machine operator but has been laid off due to the pandemic emergency. He has had some casual work doing maintenance at a business in City B and plans to sell firewood over winter. His relatives have been assisting him with payment of his legal fees. He is not legally aided. To date he has incurred fees of approximately $23,000.00.
The mother is a modest income earner. She earns $1,120.00 per week. She is not legally aided. Her parents are paying her legal fees by means of an advance secured against their home. She has incurred legal fees of approximately $27,000.00. Her costs incurred in respect of the review application are at least $1,600.00.
In my view, the father was imprudent in his attempt to challenge the motivations of the Independent Children’s Lawyer in the proceeding before the Senior Registrar, and on review. In addition, I consider that it was not child focussed for him to bring proceedings with a similar import to those determined by the Senior Registrar. In my view, the Court still has an obligation, whenever possible to spare children from unnecessary litigation, including at an interim stage.
I do not consider that this obligation is obviated merely because the applicable legislation requires any review of an exercise of power delegated to a registrar to be a hearing de novo. In my view, the children were subjected to a repeat of the litigation which had occurred before the Senior Registrar.
The children concerned had lived with their mother in the period since separation. Thereafter, they had begun to spend fixed periods of time with their father, a situation confirmed by the Senior Registrar. The evidence mustered by the father did not, in my view, indicate any significant change of circumstances. This was the import of the letter sent to Mr Naylor’s solicitor by those representing Ms Naylor in respect of the review application.
In this context, Mr Naylor was put on notice that the mother would seek her costs, if the review was dismissed. This is a significant matter that favours the mother. Her assessment of the case was vindicated. The father’s view of it was not. The mother’s position was consistent with that advocated by the Independent Children’s Lawyer. The father’s position was not. As such, the litigation did not achieve anything other than to incur costs, which the parties are ill equipped to bear.
The review application was not necessitated by any failure on the mother’s part. In my view, the father has been wholly unsuccessful in his review application. In my view, the combination of these various factors calls for an order for costs to be made in the mother’s favour. I do not consider that the case calls for indemnity costs.[25] However, in my view, particularly bearing in mind the limited means of each of the parties, it is just that an order be made, in the mother’s favour.
[25] See generally In the Marriage of Kohan (1992) 16 Fam LR 245, 254 (Strauss, Lindenmayer and Bulley JJ); Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 231, 233 (Sheppard J).
In all these circumstances, I will direct that the father pay the mother’s cost fixed in the sum of $2,000.00. I consider that this is an appropriate amount pursuant to Rule 21.02 of the Rules. It reflects a further amount of costs referrable to the hearing for costs itself. For all these reasons, the orders of the Court are set out as the commencement of these reasons for judgment.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 20 July 2021
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