ODOM & PACKARD

[2015] FCCA 1701

FEDERAL CIRCUIT COURT OF AUSTRALIA

ODOM & PACKARD [2015] FCCA 1701

Catchwords:
FAMILY LAW – Costs – respondent mother seeks costs after undefended parenting proceedings.

Legislation:

Family Law Act 1975 (Cth), s.117(1)

Federal Circuit Court Rules2001(Cth), sch.1

Applicant: MR ODOM

Respondent: MS PACKARD

File Number: MLC 9143 of 2012

Judgment of: Judge Harland

Hearing date: 6 May 2015

Date of Last Submission: 13 May 2015

Delivered at: Melbourne

Delivered on: 24 June 2015

REPRESENTATION

The Applicant: No appearance by or on behalf of the Applicant

Counsel for the Respondent: Mr Tran

Solicitors for the Respondent: Coolabah Law Chambers

Counsel for the Independent Children's Lawyer: Ms Brennan

Solicitors for the Independent Children's Lawyer: Perry Weston Lawyers

ORDERS

1. The father pay the mother’s costs of $12,848.38 within 60 days of the dates of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9143 of 2012

MR ODOM

Applicant

And

MS PACKARD

Respondent

REASONS FOR JUDGMENT

1. On 6 May 2015 I made final parenting orders. The father commenced the proceedings on 8 October 2012.

2. In his initiating application the father sought parenting orders for X to live with him and for Y to live with the mother. The last affidavit the father filed was on 17 February 2014 when he disclosed that he was charged with three counts of possession of child pornography on 10 December 2013. He indicated that he intended to fight the charges. He sought an adjournment of the matter for six months so that the criminal investigation could be completed. By that stage the father was representing himself.

3. Order 15 of the orders made on 17 February 2014 by consent required the father to pay to the mother the sum of $1,500 on or before 17 May 2014 by way of contribution to her costs. On 26 May 2014 further consent orders were made setting aside that order and replacing it with the order requiring the father to pay to the mother the sum of $1,500 of contribution towards her costs at $300 per month commencing on 26 May 2014. The matter was also set down for a two day hearing, an Independent Children’s Lawyer (“ICL”) was appointed and a further family report was ordered.

4. The second family report was released on 31 March 2015. The father did not attend the new family report interviews. The family report refers to a letter from the Department of Human Services (“DHS”) to the mother advising that their involvement had concluded. It referred to the father having been convicted of child pornography offences and being registered as a sex offender for eight years. X had been living with the paternal grandparents pursuant to interim consent orders. The paternal grandmother passed away in August 2014 and she returned to live with the mother soon after that. After that time, the arrangements for the father to see the children broke down and the father has not communicated with the children for over six months. The family consultant noted that the DHS had substantiated concerns on the grounds of sexual and emotional abuse by the father. X was exposed to the pornography on the father’s tablet. DHS suggested that supervised time could continue but they recommended a specialist assessment to address any risk the father may pose to the children. The family consultant said she supported this view but cautioned against time being re-established without the assessment having been undertaken first. She noted that by that stage it had been six months since the children had seen their father and that recommencing time even on a supervised basis was likely to be difficult. She noted that it was important for the children’s sake that the proceedings be ended and that they were fatigued and had been subjected to multiple assessments and interviews.

5. The mother seeks costs of the proceedings in accordance with Schedule 1 of the Federal Circuit Court Rules2001 (Cth) quantified in the amount of $12,848.38, less $600 the father has already paid pursuant to a previous costs order The mother’s submissions also refers to a reduction of $3,656.38 being “less adjustments for Applicant’s circumstances (if any)”. It is not clear to me how this adjustment was calculated.

6. An ICL was appointed and appeared at the final hearing. The ICL did not seek costs.

7. In the circumstances of this case, it was reasonable and necessary and in the children’s best interests for the mother and the ICL to seek orders in the terms that were made on 6 May 2015 rather than simply discontinuing the proceedings. The father had ample opportunity to notify the other parties that he was no longer pursuing his application. It would have been open to the parties to agree on final consent orders or for the matter to proceed to an undefended hearing without the need for the mother and the children to go through another assessment to the updated family report. It is worth noting that it was the father who initiated the proceedings. He could have filed a notice of discontinuance but did not do so.

8. It is important to note that in family law matters s.117(1) of the Family Law Act1975 (Cth) provides that the usual rule is that each party shall be responsible for his or her own costs.

9. To make a costs order at all is a departure from the ordinary rule. Schedule 1 of the Federal Circuit Court Rules2001 sets out a scale of costs to be applied in family law proceedings and in general federal law proceedings. It is an events based costs scale. Part 21 of the Rules deals with costs and disbursements. If the court decides that it is appropriate to order costs then in usual cases, the scale of costs should apply.

(a) The financial circumstances of each of the parties to the proceedings

1. The mother’s financial circumstances are modest. She says she had to save up for legal fees and is paying her solicitors $100 per fortnight for her legal expenses. On 17 February 2014 the father agreed to contribute $1,500 to the mother’s legal fees. He has only paid $600.

2. The father’s financial circumstances are unknown. As the mother’s lawyer had not put the father on notice of the quantum of costs she would be seeking, I directed that the mother’s lawyers file written submissions on this point by 20 May 2015. The submissions were filed on 13 May 2015 and an affidavit of service by post was filed on the same day. The orders I made on 6 May 2015 provided the father to file and serve written submissions in reply with respect to the issue of costs by 3 June 2015. The father has not filed any submissions. He has had the opportunity to inform the court of his financial circumstances.

(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid

1. Neither party is in receipt of legal aid.

(c) The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters

1. The father simply stopped participating in the proceedings. He did not file a notice of discontinuance and did not notify the other parties of this intention not to participate in the proceedings any further. His inaction resulted in a further family report being prepared and the hearing days remaining listed. He could have saved the other parties’ costs if he had taken action.

(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. The father did not comply with orders to file documents, attend the updated family assessment report and the final hearing which resulted in the mother and the ICL incurring further costs.

(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The father has been wholly unsuccessful.

(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. The mother’s lawyers put the father on notice twice in writing that she would seek costs if he continued with the proceedings. The father ignored that correspondence.

2. In all of the circumstances I am satisfied that there are justifying circumstances to depart from the usual rule. For these reasons, I will make an order in the terms the mother seeks.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  24 June 2015