Newman & Tate (No. 2)

Case [2021] FamCA 31

FAMILY COURT OF AUSTRALIA

Newman & Tate (No. 2) [2021] FamCA 31

File number(s):

SYC 4869 of 2017

Judgment of:

MCCLELLAND DCJ

Date of judgment:

4 February 2021

Catchwords:

FAMILY LAW – COSTS – Where the mother seeks the father pay legal costs incurred by her incidental to interim parenting proceedings which included a Contravention Application and Application for a recovery order, heard and determined by a Senior Registrar, and an Application for a review of the Senior Registrars decision – Where the father opposes the orders sought by the mother – Whether the conduct of the parties justifies making of orders for costs – Where the circumstances justify an order for the totality of costs incurred on an indemnity basis – Order made for costs to be paid by father in respect to the Contravention and recovery order Applications in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) s 70NFB, 117

Family Court Rules 2004 (Cth) r 19.18

Cases cited:

Byrnes v Brisconnections Management Co Ltd (No. 2) [2009] FCA 1432

Cross & Beaumont (2008) 39 Fam LR 389

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123

Hawkins & Roe (2012) 47 Fam LR 526

Hitch v Hitch (2012) 47 Fam LR 603

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Kohan and Kohan (1993) FLC 92-340 at 79,614

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664

Penfold v Penfold (1980) 144 CLR 311 at 315.

Stoian & Fiening (Costs) [2014] FamCA 944

Number of paragraphs:

47

Date of last submission/s:

12 January 2021

Date of hearing:

In Chambers by written submissions

Place:

Sydney

Solicitor for the Applicant:

Eddy Neumann Lawyers

Solicitor for the Respondent:

Mills Oakley Lawyers

ORDERS

SYC 4869 of 2017
BETWEEN:

MS NEWMAN
Applicant
AND:

MR TATE

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

4 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Mr Tate is to, within 28 days, pay Ms Newman the sum of $23,092.25 in respect to legal fees incurred by her in relation to her Application in a Case filed 9 October 2020 and Contravention Application filed 12 October 2020, heard and determined on 20 October 2020.

Note:    The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newman & Tate has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McClelland DCJ:

INTRODUCTION

  1. This matter concerns an Application for costs of and incidental to interim parenting proceedings – an Application in a Case filed 9 October 2020 by Ms Newman…

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AGLC
Newman & Tate (No. 2) [2021] FamCA 31
Case
[2021] FamCA 31
Decision Date

CaseChat Overview and Summary

The mother, Ms Newman, sought orders for the father, Mr Tate, to pay her legal costs incurred in interim parenting proceedings. These proceedings included a Contravention Application and an Application for a recovery order, which were heard and determined by a Senior Registrar. The father opposed these cost orders. The matter was heard by McClelland DCJ.

The primary legal issue before the court was whether the conduct of the parties justified making orders for costs, and if so, on what basis. The court was required to consider the relevant provisions of the *Family Law Act 1975* (Cth), particularly section 117(2A), which outlines factors to be considered when making costs orders, including the conduct of the parties. The court also considered the financial circumstances of both parties.

McClelland DCJ applied the principles established in *Wrensted & Eades*, confirming that there is no distinction in legislative considerations for costs orders in parenting proceedings compared to property proceedings. While acknowledging that both parties faced financial hardship in meeting legal fees, the court held that financial incapacity does not preclude a costs order where conduct warrants it. The court found that the mother was only partially successful in her application for costs, and therefore, an order for the totality of costs on an indemnity basis was not justified. However, the court did find that the father's conduct in relation to the Contravention and recovery order applications warranted an order for costs.

The court ordered Mr Tate to pay Ms Newman the sum of $23,092.25 in respect to legal fees incurred by her in relation to her Application in a Case filed 9 October 2020 and Contravention Application filed 12 October 2020, heard and determined on 20 October 2020.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Mr Tate is to, within 28 days, pay Ms Newman the sum of $23,092.25 in respect to legal fees incurred by her in relation to her Application in a Case filed 9 October 2020 and Contravention Application filed 12 October 2020, heard and determined on 20 October 2020.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newman & Tate has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

The father, by way of his Response to an Application in a Case filed 12 January 2021, seeks that the mother’s Application be dismissed and that each party pay their own costs of the proceedings.RELEVANT BACKGROUND On 20 October 2020, the matter first came before Senior Registrar Campbell whereby the mother sought an order for the recovery of the children, X born in 2005 and Y born in 2005. The mother alleged that, on 3 October 2020, the father was in contravention of Order 8 of the orders made on 4 March 2020 by the Federal Circuit Court of Australia in that the father did not, on 26 September 2020, return the twin children, Y and X, to the mother’s care at 6.00pm following the children spending one half of the school holidays with him. That Application was successful with Senior Registrar Campbell, on 20 October 2020, making the following orders: IT IS ORDERED THAT1.The Response to an Application in a Case filed by the father on 16 October 2020 is dismissed.2. The Orders made by Judge Smith on 4 March 2020 remain in force and effect.3.The father must do all acts and things necessary to cause the children, X born in 2005 and Y born in 2005, to return to live with the mother by 4.00 pm on 22 October 2020. The father complied with the orders made on 20 October 2020 however, on 22 October 2020, an unfortunate incident occurred which resulted in X being admitted for psychiatric treatment in circumstances that I have detailed in my reasons for judgment dated 24 December 2020 (“the 24 December 2020 decision”) (at [59]–[64]).[1][1] [2020] FamCA 1114 On 23 October 2020, Senior Registrar Campbell made the following notations and orders, which helpfully summarise the events that lead to the proceedings on that day IT IS NOTED THAT: A.Orders were made by the Court on 20 October 2020 for the twins Y and X (each 15 years old) to return to their mother’s care in accordance with the 4 March 2020 orders of Judge Smith. Those orders were contrary to the expressed wishes of X and Y.B.Following his return to the mother’s care, X was subsequently taken to the Emergency Department of B Hospital after expressing suicidal thoughts. Police were involved and an ambulance called.C.X was assessed as at low risk of self-harm and, following extensive discussions with each parent and the hospital social worker, X was discharged from hospital into his mother’s care.D.The matter came before the Court urgently this afternoon at the request of the Independent Children’s Lawyer.E.Both the Independent Children’s Lawyer and the father’s lawyer expressed the view that X’s mental state may be exacerbated by a perception that his wishes have not been heard by the court and may be ameliorated by a Child Inclusive Conference.F.Both parents, X and Y, and the third son Z were interviewed by a single expert, Mr C, for a report that was before Judge Smith when the 4 March 2020 orders were made.IT IS ORDERED THAT1. The matter is adjourned to 4.00 pm on Thursday 29 October 2020.2.Leave is granted to the legal representatives and to the Independent Children’s Lawyer to issues subpoenas on short notice to the following persons/entities with such subpoenas to be returnable by 4.00 pm on 27 October 2020:a. B Hospital;b. Ms E of D Psychology, Suburb F; andc. NSW Police.3. The mother must file and serve an affidavit by 4.00 pm on 27 October 2020.4.Leave is granted to the legal representatives and to the Independent Children’s Lawyer to approach the Chambers of Senior Registrar Campbell to seek a relisting of the matter between now and the adjourned date in relation to any urgent matters that may arise.5.The parties and the children, Z born in 2008, X born in 2005 and Y born in 2005, shall attend a Child Inclusive Conference with a Family Consultant on 28 October 2020.6.The Child Inclusive Conference shall take place by Microsoft Teams with the mother to attend at 9.00 am and the father to attend at 10.00 am.7.Leave is granted to the legal representatives of each party and to the Independent Children’s Lawyer to photocopy documents produced on subpoena, including the material to which the exception in Rule 15.30(2)(b) of the Family Law Rules 2004 (Cth) applies (“the copy permitted material”), for the purposes of scanning the same to tender in a hearing conducted electronically on the following conditions:a. A legal representative must not:i. provide the copy permitted material to their client, ii. permit their client to copy the copy permitted material, or iii. allow any other person to provide the copy permitted material to the client, or copy the copy permitted material to provide such copies to the client.b.Subject to the following sub-paragraphs, a legal representative or Independent Children’s Lawyer must retain all copy permitted material their possession or control.c.A legal representative or Independent Children’s Lawyer must not distribute the copy permitted material to any other person, except another lawyer briefed or engaged to appear at the electronic hearing or in accordance with a further order of the court. d.Except for the purposes of the preceding sub-paragraph, a legal representative or Independent Children’s Lawyer must not create more than one copy of the copy permitted material and must not allow any other person to copy the copy permitted material.e.At the conclusion of the electronic hearing the following persons must destroy all copies of the copy permitted material in their possession or control;i. a legal representative;ii. an Independent Children’s Lawyer; iii.a lawyer briefed or engaged to appear at the electronic hearing, andiv.a person receiving the copy permitted documents pursuant to an order of the court.f.A sealed copy of these orders must be provided to any person receiving a copy of the copy permitted material.g.Any person receiving a copy of the copy permitted material must retain all copy permitted material in their possession or control and must not:i.distribute the copy permitted material to any other person (including a party to the proceedings), andii. create any further copy of the copy permitted material.8.Any lawyer who obtains a copy of the copy permitted material pursuant to the leave granted by these orders is taken to have given an undertaking to the court that they will strictly adhere to the conditions set out above and subject to which such leave is given.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I note that, in her Application filed 7 January 2021, the mother further sought an order in respect to “estimated costs of and incidental” to her Application for costs filed on that day in the sum of $10,000. It is, however, difficult to ascertain the basis upon which that assessment has been made, such assessment, with respect, seems quite excessive. In any event, in circumstances where the mother has been only partially successful in respect to her Application in a Case filed 7 January 2020, I do not propose to make an order for the father to pay costs in respect to that Application.CONCLUSION Accordingly, I make the orders as set out at the commencement of these Reasons for Judgment.

Ratio Decidendi

Legal Principle Established

I respectfully agree with the reasoning of the Full Court in Wrensted & Eades in finding that there is no distinction in the legislative considerations that the court is required to have regard to in respect to an Application for costs in parenting proceedings, as opposed to property proceedings.CONSIDERATIONThe financial circumstances of the parties The mother, in her Financial Statement filed 7 January 2021, states that she is a contractor in finance and, by way of summary, her financial circumstances are as follows: ·her average weekly income is $3650; ·her weekly expenditure is $3609; ·the total value of property owned by her is $6470; ·the total value of her superannuation is $162,871; ·the totality of her liabilities is $462,704; and ·she has no additional financial resources. Comparatively, in his Financial Statement filed 12 January 2021, the father states that he is a self-employed farmer and, by way of summary, his financial circumstances are as follows:·his average weekly income is $5000; ·his weekly expenditure is $5000;·he owns no property;·he has superannuation valued at $10,000;·he has liabilities of $3000; and ·he has financial resources of $15,000. The mother contends that the father has not, in his Financial Statement, accurately set out his financial situation. It is not possible, however, in these proceedings, for me to make a determination as to whether that is or is not correct. On the face of the Financial Statements filed by both parties, in which they both attest to the accuracy of the information which they have provided, I am satisfied that meeting legal fees incurred by the parties in respect to these proceedings presents a hardship for both of them. However, in Cross & Beaumont (2008) 39 Fam LR 389 at 402,[60], the Full Court held that financial incapacity to pay a costs order is not a barrier where the conduct of the party may warrant the making of such an order. Whether either of the parties are in receipt of legal aid Neither party has suggested that they are in receipt of legal aid and, accordingly, s117 (2A)(b) of the Act is not relevant.The conduct of the parties In addressing s 117(2A)(c) of the Act, the submissions of the mother focused upon the conduct of the father in withholding X and Y in his care following the September 2020 school holidays. Section 117(2A)(c) is, however, focused at the conduct of the parties as litigants, rather than as separated parents generally: see Hitch v Hitch (2012) 47 Fam LR 603. That is not to say, however, that the parties’ conduct prior to the commencement of the proceedings is an irrelevant consideration. Accordingly, I will discuss the conduct of the parties in the context of considering s 117(2A)(g) of the Act. Having regard to the summary of the proceedings which I have set out above, in the context of events which occurred on 22 October 2020 when X was admitted for psychiatric care, and until when the father filed his Application for review of the Senior Registrar’s decision of 23 November 2020, there is, in my view, no reasonable basis for the mother to assert that the father has acted improperly in respect to the conduct of the proceedings.