NELLIGAN and WIGEN

[2013] FCWA 73

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: NELLIGAN and WIGEN [2013] FCWA 73

CORAM: WALTERS J

HEARD: 24 JUNE 2013

DELIVERED : 24 JUNE 2013

FILE NO/S: PTW 3129 of 2010

BETWEEN: JUDITH NELLIGAN

Applicant

AND

ANTHONY WIGEN
Respondent

Catchwords:

FAMILY LAW - costs - case turns on its own facts

Legislation:

Family Court Act 1997 (WA), s 237

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr S Jones

Respondent: Mr W Meredith

Independent Children's Lawyer : Mr S Walker

Solicitors:

Applicant: Carr & Co

Respondent: William Llewellyn Meredith

Independent Children's Lawyer : Rattigan Kearney & Bochat

Case(s) referred to in judgment(s):

Cross v Beaumont (2008) 39 Fam LR 389

Hawkins v Roe (2012) 47 FamLR 526

Maker & Jets (No 3) (2012) FMCAfam 1104

Marinko & Marinko (1983) FLC 91-307

Penfold v Penfold (1980) FLC 90-800

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1HIS HONOUR: Before the Court is the mother's application for costs. The application arises out of two costs orders that I made in these proceedings. The first costs order was made on 7 February 2013. Paragraph 8 of the orders made on that day reads:

The mother's costs, including her costs thrown away, be adjourned to the first day of the trial, currently 19 February 2013.

2The second costs order was made on 26 February 2013. On that day, the trial previously fixed for 19 February 2013 was vacated. I was appointed the Judge Manager in relation to the proceedings, and the matter was placed in a callover to take place on 19 April 2013. As a result of the callover, the matter was listed for trial before me today. The costs order made on that day is contained in paragraph 6; it reads:

All the parties' costs of today be adjourned to the first day of trial.

3It should, I think, read, "All parties' costs of today be adjourned to the first day of trial."

4Mr Jones, for the mother, has quantified the claim for costs on the part of his client at $7,500. I asked Mr Jones not to particularise the manner in which that amount was calculated because, in my view, it was not a helpful exercise – and it was unlikely to be relevant to the decision that I am required to make.

5If I am of the view that an order for costs is warranted, then I can order that the costs be taxed or, alternatively, I can fix costs. I have the power to take either of those steps.

6Mr Jones traced some of the history of the proceedings – in particular, the history from 14 December 2012, which was the date of the callover at which this matter was listed for trial on 19 February 2013.

7The trial did not proceed on 19 February 2013, essentially because of an application made on behalf of the father for leave to file his material out of time. Of course, his material should have been filed well before the callover. Readiness hearings were held, but I am told by Mr Jones that the requirements of those hearings were not met on the part of the father.

8Mr Meredith, for the father, emphasises that his client had difficulties with legal representation along the way, and that fact, along with the complexity of the proceedings themselves, largely explain why it was that he did not file his material on time.

9The fact of the matter is, though, that the father filed his material late. The late filing of the material caused the trial to be adjourned. It is as simple as that. The trial having been adjourned, it became necessary for the parties to refocus on the matters in issue in the proceedings. The mother had to spend time and effort reading the material filed on behalf of the father and preparing a response to it.

10But one silver lining on that particular cloud was that the Court was able to take the opportunity to obtain an updated single expert report. As it has transpired, the report has been very valuable indeed and has assisted the parties to compromise – to a large extent – the matters that were previously in dispute between them.

11The question of costs in family law proceedings under the Family Court Act 1997 (WA) ("the Act"), is dealt with in s 237 of the Act. A judicial officer has a broad discretion in costs matters, and it has been said, for example, that the Full Court will not ordinarily intervene unless a costs order is plainly unreasonable.

12Indeed, it has been held that the Court has an almost unlimited jurisdiction in relation to costs – although, clearly, any costs order must be just. It is not the law that a costs order can only be made in what has been described as "a clear case". A finding of justifying circumstances is an essential preliminary to the making of a costs order, but there is no additional or special onus on an applicant for an order for costs.

13The general rule is that each party shall bear his or her own costs, but that rule is expressed to be subject to s 237(2), and it must yield whenever a judicial officer finds that there are circumstances which justify the making of a costs order. It follows that both the costs award itself and the quantum of costs actually ordered are discretionary: see the decision of the High Court in Penfold v Penfold (1980) FLC 90-800.

14In Hawkins v Roe (2012) 47 FamLR 526, the Full Court said[1]:

The weight to be given to a particular consideration under s 117(2A) [which is the Family Law Act 1975 (Cth) equivalent of section 237(2) of the Family Court Act 1997 (WA)] is a matter for the discretion of the judge. However, the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative… [Further], there is nothing to prevent any factor being the sole foundation for an order for costs.

[1] Hawkins v Roe (2012) 47 FamLR 526 at [18] (case references omitted).

15There is nothing in the provisions of s 237 to justify any difference in approach to the question of costs in parenting cases. Circumstances such as a totally unmeritorious case on one side, an attempt to vary a live with order which does not even establish a prima facie case, the withholding of evidence and like matters are common bases for such an order, but they are not necessarily prerequisites.

16Whether or not such factors exist, all relevant matters referred to in s 237(2) must be taken into account as in any application for costs. A disparity in financial resources between parties to family law litigation can sometimes justify an order for costs in favour of the party with lesser financial resources.

17On the other hand, an apparent inability of a party to pay costs is not a bar to a costs order being made in circumstances where, for example, that party's conduct – being presumably that party's conduct as a litigant, – warrants such order. See Hawkins v Roe at paragraph 20, citing the cases of Marinko & Marinko (1983) FLC 91-307 and Cross v Beaumont (2008) 39 Fam LR 389.

18In Maker & Jets(No 3) (2012) FMCAfam 1104, I discussed the Full Court's decision in Hawkins v Roe, which seemed to suggest that some form of unusual or exceptional circumstances might be required before a costs order could be made in proceedings involving parenting issues.

19I will not repeat the comments I made in Maker & Jets (No. 3). Suffice it to say that although the majority in Hawkins v Roe took the view that some form of exceptional circumstances was required before an order for costs could be made, Thackray J, who dissented, did not agree. His Honour said, at paragraph 162, that:

… the statute does not differentiate between parenting and financial cases and that all the Court needs to do is take into account the usual considerations.

20I agree with his Honour, for the reasons that I set out in Maker & Jets(No 3). I am satisfied that the approach to the ordering of costs in parenting proceedings is no different to the approach that adheres in property proceedings.

21With that preamble, I turn now to consider the matters that I must under s 237(3).

22The first of those relates to the financial circumstances of each of the parties to the proceedings. Mr Jones has advised the Court that the mother is self-employed and has been funding the proceedings from her own earnings, but with assistance from her family. That is a matter that Mr Meredith has queried. As I indicated during the course of submissions, however, a comparison of the financial positions of the parties is more important than the question of who is meeting the mother's costs.

23Mr Meredith has submitted that the father will have difficulty meeting any order for costs. Indeed, the father had difficulty meeting his half of the cost of the single expert's report. Mr Meredith said that his client has no capacity to pay and that he certainly could not meet a costs order in an amount of $7,500. Mr Jones did not suggest otherwise.

24I accept that the father would have considerable difficulty meeting any order for costs. That is a relevant consideration, but it is not, of course, the only consideration that I must take into account.

25The second factor is whether any party to the proceedings is in receipt of assistance by way of Legal Aid. The mother is not in receipt of Legal Aid. The father is in receipt of Legal Aid. Primarily because of that fact, the argument in relation to costs is occurring today and is not being conducted by way of written submissions.

26The next factor is the conduct of the parties to the proceedings in relation to the proceedings. In other words, the Court must have regard to the parties' conduct as litigants. This is the primary thrust of Mr Jones' submission. He argues that the father's behaviour as a litigant has been appalling, or close to appalling. The father has not complied with rules and directions, and the late filing of his material had the consequences that I described earlier.

27There is much weight to be given to that submission. In my view, the late filing of the father's material has not been adequately explained. I understand that the father's current solicitor has done everything within his power to ensure that the material was eventually filed, but solicitors (including the father's previous solicitors) act on instructions, and the buck stops always with the client.

28It was for the father to ensure that previous orders and directions of the Court were complied with to enable the matter to proceed efficiently and effectively and be ready at the time the trial was due to commence. The father did not enable that to occur, and his reasons for not filing his material on time remain unclear. That is a factor that is relevant, and I take it into account.

29The next factor is whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court. If I focus solely on the mother's application for costs, and on her Form 2A filed in response to the father's application in a case, it can be said that her application for costs and the ultimate adjourning of the proceedings were necessitated by the father's failure to comply with previous orders of the Court. To that extent, the considerations in subparagraphs (c) and (d) are clearly related.

30The next factor is whether any party to the proceedings has been wholly unsuccessful in the proceedings. This matter was not argued before me, but it is clear that the mother was certainly not wholly successful in her opposition to the father's application in a case to enable the filing of material out of time. Indeed, she was wholly unsuccessful in her opposition to the father's application. That is a factor that I take into account, but, in my view, it is not a significant factor.

31The next factor is whether a party to the proceedings has made an offer in writing. That is not a relevant consideration.

32The final consideration is paragraph (g), which requires the Court to take into account such other matters as it considers relevant.

33Mr Meredith asks the Court to take into account the history of the proceedings, including the fact that his client (he would say) has been unfairly denied contact with his son since 30 June 2010, or thereabouts. Mr Jones takes issue with that version of events, and argues that the mother was perfectly entitled to terminate contact in all the circumstances. I am not here today to adjudicate on that dispute. I understand that these proceedings are long running and that each party has his or her own views of the appropriateness of their actions, and those of the other. In my view, nothing is to be gained by revisiting that form of behaviour at this stage of the proceedings.

34What then are the most significant considerations for the Court to take into account? Firstly, the parties' financial circumstances: I accept that the father is impecunious and has little capacity to meet the costs order sought on behalf of the mother. I accept, as well, that he is in receipt of Legal Aid. I also accept that the mother is in a stronger financial position than the father.

35On the other hand, I find that the father's conduct as a litigant warrants the making of an order for costs, notwithstanding his incapacity to meet such an order, and notwithstanding the fact that he is in receipt of Legal Aid. I have explained the importance of his conduct, and have indicated that it is essentially unexplained.

36There is no need for me to revisit the other considerations which, in my view, are of little assistance to the Court in its determination of the application for costs.

37For the reasons outlined above, I find that there are circumstances which warrant the making of an order for costs.

38Although the father's impecuniosity is not a reason to refuse to make a costs order, it is relevant to the quantum of such an order. In my opinion, $7,500 is the high water mark (as it were) of the mother's claim, and it would not be fair or just to require the father to pay that amount.

39I am prepared to make an order for costs, but I propose to fix the quantum at $1,500. This is sufficient to emphasise that orders and directions must be complied with, and that there are consequences if they are not. Put another way, I conclude that the most important factor is the conduct of the parties to the proceedings as litigants, and that that factor outweighs the financial circumstances of the father and the fact that he is currently on Legal Aid. The quantum of the costs order recognises the fact that the father will have difficulty meeting it. Whether or not it can be enforced is another matter, but that is not something with which I need concern myself at this stage.

40There will be an order that the father pay the mother's costs thrown away, fixed in the sum of $1,500, and that he pay that amount by 30 November 2013.

I certify that the preceding [40] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate