NEELY & EZEL (No.3)
[2019] FCCA 3808
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEELY & EZEL (No.3) | [2019] FCCA 3808 |
| Catchwords: FAMILY LAW – Application for Costs – where the applicant makes an application for costs against the respondent for the preparation of a report – consideration under section 117(2A) of the Family Law Act. |
| Legislation: Family Law Act 1975 (Cth), ss.117, 117(1), 117(2), 117(2A) 117(3), 117(4), 117(4A), 117(5) Federal Circuit Court Rules 2001 (Cth), rr.15.09, 15.10, 15.11 |
| Cases cited: Penfold & Penfold (1980) FLC 90-800 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 |
| Applicant: | MR NEELY |
| Respondent: | MS EZEL |
| File Number: | PAC 5264 of 2015 |
| Judgment of: | Judge Harman |
| Hearing dates: | 21, 22, 23 August 2019 |
| Date of Last Submission: | 23 August 2019 |
| Delivered at: | Canberra |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hubert |
| Counsel for the Respondent: | Ms Aidman |
ORDERS
Grant leave to the applicant to make an application for costs of contribution to costs pursuant to rule 15.11 of the Federal Circuit Court Rules 2001 or section 117 of the Family Law Act 1975 regarding the attendance of Mr A for the purpose of cross examination.
The costs application is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Neely & Ezel (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
PAC 5264 of 2015
| MR NEELY |
Applicant
And
| MS EZEL |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to parenting arrangements for one child, [Y], presently six, soon to turn seven years of age.
The proceedings between the parties have been concluded this morning by a judgment delivered resolving their substantive business before this Court.
The parties to the proceedings relating to [Y]’s best interests are her biological parents, her mother, Ms Ezel, and her father, Mr Neely.
At the conclusion of the substantive proceedings, an application is made by Mr Neely, the applicant in the substantive proceedings, for a contribution towards costs or expenses, however, it may be styled. I am satisfied, in any event, the determination would fall under section 117 of the Family Law Act[1].
[1] Family Law Act 1975 (Cth), s.117
The application for costs that is made seeks to recoup, as it were, from Ms Ezel, a sum of $1,300, being one half of certain costs that have been charged by a Mr A. Mr A prepared a report in these proceedings. Mr A provided that report to the Court some little time ago. It was filed with the Court attached to an affidavit prepared by Mr Neely’s attorneys. Mr A was required for cross-examination.
The relevant history is, I am satisfied, set out in the brief outline tendered on behalf of Mr Neely and filed in Court today.
Appointment of Mr A
An order was made on 3 March 2017 appointing Mr A as an expert pursuant to rule 15.09 of the Federal Circuit Court Rules[2]. The order for appointment was somewhat brief. That is no criticism of the order or the parties or independent children’s lawyer. It simply provides:
The parties shall do all acts and things to engage Mr A to prepare an expert report pursuant to rule 15.09 of the Federal Circuit Court Rules which shall include a mental health assessment of both parties and will be provided to the Court for release pursuant to rule 15.10, Federal Circuit Court Rules.
[2] Federal Circuit Court Rules 2001 (Cth) r 15.09.
Rule 15.10[3] requires that the report be provided to the Court. The difficulty arises, of course, that the provision of the report does not admit it into evidence. It is necessary for the report to be formally tendered or attached to an affidavit. That affidavit was prepared by the solicitors for Mr Neely. I am not satisfied that the preparation of that affidavit by the solicitors for one party renders the expert that party’s “witness”.
[3] Ibid 15.10.
The appointment of Mr A to meet with the parties and prepare a report occurred pursuant to rule 15.09 of the Federal Circuit Court Rules. The rule provides:
The Court may at the request of a party or of its own motion appoint an expert as Court expert (emphasis added) to inquire into and report on a question arising in the proceedings …
The fact that the report is attached to an affidavit prepared by the legal representatives for a party does not, I am satisfied, derogate from the essential basis for appointment. Mr A was, with the consent of both parties and the independent children’s lawyer, appointed as a Court expert.
Ultimately, the report of Mr A was not of great assistance in the proceedings, but that has little relevance to this determination. It was a report that was prepared at cost.
It is submitted that there were no joint or agreed terms of reference provided when commissioning the report by Mr A. That is regrettable, but I do not propose to further canvas the issue. Whether joint terms of reference are available or not does not derogate, again, from the appointment of Mr A as the Court expert. Curiously, the orders appointing Mr A provided for the parties to prepare terms of reference. It is unclear why that did not occur. In any event, the report proceeded.
As is submitted on behalf of Mr Neely, rule 15.11[4] provides that unless the Court otherwise directs, the parties are jointly liable to pay the reasonable remuneration and expenses of the Court expert for preparing a report. Certainly, the order made appointing Mr A does not provide for his payment. Thus, one might infer, subject to any order made by the Court, and I am satisfied that the order could be made prospectively or retrospectively, that remuneration is to be joint and equal.
[4] Federal Circuit Court Rules 2001 (Cth), r.15.11
As I have indicated, on the basis of rule 15.11, providing, essentially, a presumption of joint liability for the report, I am satisfied that section 117 would be the relevant jurisdictional basis to determine any controversy relating to or arising from payment. The rule itself might also provide a jurisdictional basis, but I am satisfied it would be best guided by section 117.
Section 117(1)[5] of the Act creates what is referred to by the High Court in Penfold[6] as the general rule that each party shall bear his or her own costs.
[5] Family Law Act 1975 (Cth), s.117(1)
[6] Penfold & Penfold (1980) FLC 90-800
Subsection (2)[7] reserves a discretion with respect to costs subject to being satisfied of the dual test of justice and justification (see Re JJT; ex parte Victorian Legal Aid[8]).
[7] Family Law Act 1975 (Cth), s.117(2)
[8]Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812.
Subsection (2A)[9] provides a prescriptive but non-exhaustive list of considerations. I will turn to those shortly.
[9] Family Law Act 1975 (Cth), s.117(2A)
Subsections (3)[10], (4)[11], (4A)[12] and (5)[13] are not relevant, dealing, as they do, with applications by or involving independent children’s lawyers or child welfare agencies.
[10] Ibid (3).
[11] Ibid (4).
[12] Ibid (4A).
[13] Ibid (5).
In turning to subsection (2A) I will address each relevant factor.
Financial circumstances of the parties
Little, if anything, is known of the parties’ financial circumstances. That is not a criticism of them or their evidence. These proceedings are entirely focused upon parenting arrangements for a young child. Thus, the financial circumstances of the parties are not particularly germane and any omission of that material could not be a criticism.
What is known is that neither party is legally aided. Thus, each has met their costs in these proceedings. It is also beyond controversy that there is no Child Support Assessment in existence with respect to [Y] and no child support is paid.
Whether a party is in receipt of grant of legal aid
Clearly neither party is.
Conduct of the parties.
There are a number of matters relevant to that factor.
The judgment that has been delivered this morning provides for no time or communication between Mr Neely and [Y].
The report of Mr A, as I have already indicated, was not of great assistance in the proceedings. One of the aspects of the report and why it was commissioned and was required were complaints raised, more so by Mr Neely of Ms Ezel than vice versa, that Ms Ezel suffered from or was afflicted by some mental illness or disorder.
The report engaged in substantial psychometric testing which was, at best, unhelpful, if not irrelevant, and possibly leading the report writer into a position whereby opinions were expressed which were not necessarily supported by available evidence although it is not the report writer’s role to be a determiner of fact.
As would be apparent from the reasons delivered, although I accept the parties have not had any opportunity to yet consider those reasons in any detail, the opinions offered by Mr A as to the suggested diagnosis of mental disorder of Ms Ezel were rejected. It was suggested and found by Mr A that Ms Ezel suffered from delusions in relation to certain aspects of that which she advanced both to Mr A and in these proceedings.
It is tolerably clear, I would opine, from the reasons delivered in support of the orders made that such matters as were expressed by Ms Ezel as were typified by Mr A as delusions were not so found by this Court. No finding of fact has been made in relation to the contested issues that are suggested to give rise to that diagnosis, but, certainly, the evidence of Ms Ezel has been accepted as credible and plausible. The report otherwise, having been commissioned and paid for, has come before the Court in evidence.
The issue, really, at this point, is payment of Mr A for his attendance and any preparation for the attendance at hearing. Mr A was, without intending to suggest it is necessarily exclusive, called for and required by Mr Neely. The evidence in Mr A’ report favoured Mr Neely’s position or, if it might be so described, case theory.
The fundamental issue in this case, although ultimately and as appropriately submitted by counsel for Ms Ezel and discussed and explained in some detail in the reasons now delivered, was a contention as to the circumstances of conception of young [Y]. The case theory, if it might be broadly paraphrased, without intending discredit to the position of either party, is that Mr Neely asserted that Ms Ezel’s protestations that the child was born from non-consensual sexual intercourse between them was, at best, hysterical, at worst, delusional. Those positions were not accepted by the Court. Again, no finding is made as to the circumstances of conception, but Ms Ezel’s evidence, as explained in some detail in the reasons now delivered, was accepted as credible and plausible and more credible and more plausible than that of Mr Neely.
To that extent, and noting that the evidence of Mr A did not assist greatly, and whilst it may only fall within a broad definition of the term “conduct”, the prosecution of that limb of evidence was perhaps unnecessary. Certainly, it occupied some time in the proceedings, and the report itself perhaps generated or contributed to the generation of further conflict, factual or otherwise, between the parties. It may have been better if the evidence of Mr A had not been called at all although certain aspects of it were of some assistance, albeit limited.
In those circumstances, the “conduct” of Mr Neely in requiring Mr A for cross-examination might fall against an order for contribution being made.
Whether the proceedings are necessitated by the failure of a party to comply with previous orders
Not relevant.
Whether a party has been wholly unsuccessful
I would be loath to base any determination upon this factor in any parenting case, perhaps all the more so this case. However, it must be observed that Mr Neely has been wholly unsuccessful in obtaining any relief as sought by him.
The gravamen of the determination relates to the impact upon Ms Ezel’s mental health of any requirement to engage with Mr Neely in the future. That might have been apparent as a significant issue in the proceedings before the trial commenced. Certainly, by the end of the proceedings, it was overwhelmingly significant.
On that basis, certainly, Mr Neely has been wholly unsuccessful. Ms Ezel has been wholly successful although, again, the term has limited application. I would not believe that either of these biological parents would for one moment have considered that these proceedings were about “success”. They were about, to some extent, from Ms Ezel’s perspective, psychological survival.
They are, from Mr Neely’s perspective, less clear, but I accept his wishing genuinely to pursue a relationship with a child of whom he is the biological parent as was resolved by forensic evidence in the proceedings.
Whether a party has made an offer in writing
There is no evidence.
Such other matters as the court considers relevant.
Overall, I am not satisfied that the general rule should apply nor that which might similarly be described as a general rule or presumption set out in Part 15 of the Federal Circuit Court Rules.
The report having been obtained and paid for has then necessitated Mr A attendance for cross-examination, at the behest, whether solely or otherwise, of Mr Neely. In those circumstances I am satisfied that the costs should, as it were, fall where they lay, (ie, that the account having been met by Mr Neely, he having discharged the debt to the third party) and Ms Ezel need not be called upon to make any further contribution.
For those reasons orders are made as follows.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 14 January 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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