Ortona and Peters (No. 2)

[2015] FamCA 258

FAMILY COURT OF AUSTRALIA

ORTONA & PETERS (NO. 2) [2015] FamCA 258

FAMILY LAW – COSTS – where, by way of an oral application, the Independent Children’s Lawyer seeks costs of and incidental to the hearing on 30 December 2014, which the respondent did not attend – written submissions filed after the hearing in response by the respondent – consideration of the factors in s 117(2A) – No order for costs made.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Ortona

RESPONDENT: Ms Peters

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8590 of 2012

DATE DELIVERED: 14 April 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 30 December 2014 and by way of written submissions (for the wife)

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITOR APPEARING AS ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER ON 30 DECEMBER 2014: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. The Independent Children’s Lawyer’s application for costs in the sum of $534 for her appearance at the hearing on 30 December 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ortona & Peters (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 8590 of 2012

Mr Ortona

Applicant

And

Ms Peters

Respondent

REASONS FOR JUDGMENT

1. On 30 December 2014, the applicant sought an urgent recovery order for the two children of the relationship, the subject of the substantive proceedings where final orders were made on 26 February 2015.  This application was supported by the Independent Children’s Lawyer.  The application was made after the respondent failed to deliver the children to him at the Suburb M Police Station on Christmas Day pursuant to Federal Circuit Court orders and an agreement between the applicant and respondent.

2. The respondent had unilaterally removed the children from Melbourne to an unknown location after obtaining an interim intervention order from the Melbourne Magistrates’ Court on 24 December 2014, without notice to the applicant.  The respondent did not attend the hearing on 30 December 2014 and could not be contacted by mobile phone despite numerous attempts made during the morning of the hearing.

3. Following this hearing, I made orders for, inter alia, the immediate return of the children to the applicant pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”).

4. During the hearing on 30 December 2014, the Independent Children’s Lawyer, by way of a proposed minute of draft orders, sought that her costs for the appearance at the hearing, totalling $534.00, be paid by the respondent.  The applicant made no submissions about this.  I reserved the issue of whether these costs should be paid by the respondent so that the respondent would have an opportunity to be heard on the application.

5. The trial about parenting and property issues had been heard over a number of days during August 2014, and judgment was reserved.  After the December 2014 hearing for the urgent recovery order, the respondent made an application on 10 February 2015 to reopen her case.  This was refused and on 26 February 2015, I delivered my judgment in relation to the totality of the matters and final orders were made.  Paragraph 30 of these orders provided that (emphasis original): 

   (30)In respect of the Independent Children’s Lawyer’s oral application made on 30 December 2014 for the wife to pay the Independent Children’s Lawyer’s costs for the appearance in the application that day in the sum of $534.00, NOTING THAT the husband did not oppose this application, failing agreement:

   a)By 4.00 pm on 25 March 2015, the wife and the Independent Children’s Lawyer file and serve any written submissions regarding the application for costs; and

   b)any judgment on costs is to be determined on the written submissions in Chambers unless a party seeks to make an oral submission in addition to a  written submission. 

6. The respondent wife filed written submissions regarding the application for costs on 24 March 2015. 

7. The Independent Children’s Lawyer did not file any written submissions, despite having the opportunity to do so, and I have little information to consider the basis for her request for costs.

8. No party sought to make an oral submission in addition to a written submission as per paragraph 30(b) of the orders made on 26 February 2015.  Accordingly, I determined the issue of the Independent Children’s Lawyer’s application for costs in Chambers.

Legal Principles

1. Under s 117(1) of the Act, the general rule is that each party should bear his or her own costs of proceedings under the Act. However, the Court is empowered to make an order for costs if it is of the opinion that there are circumstances which justify such an order.[1]  It is entirely a matter for the discretion of the Court.

   [1] Family Law Act 1975 (Cth) s 117.

2. Section 117(2) of the Act provides as follows:

   If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

3. Section 117(2A) of the Act mandates the factors to which the Court must have regard in considering whether to make an order for costs, which are set out as follows:

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

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (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;

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

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

   (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; and

   (g)such other matters as the court considers relevant.

4. The wife’s written submissions do not directly address the matters in s 117(2A). Rather the wife’s submissions concentrate on what she regarded as perceived failures of the Independent Children’s Lawyer to “follow the Family Court Independent Children’s Lawyers Guidelines (2013)”. Her submissions also appear to seek to reopen a number of matters, which were the subject of the trial, and also detail her complaints about the decision and final orders that I made.

5. Notwithstanding these limitations, I have considered the matters in s 117(2A).

6. The wife details in her written submissions that she is unemployed and is “suffering severe financial hardship”.  She submits that she was due to return to work for “a part time two year property degree/employment” and “would have had my [professional licence] back, and would have been able to commence my own [business] again.”  However, the wife submits that she has been unable to return to the workforce as she is “not well” and is “determined to seek justice for myself and my children.” 

7. The wife relied upon an Amended Financial Statement filed 23 July 2014 for the purposes of the trial, where she deposed to a total weekly income of $800 and personal expenditure of $1,990.  Evidence was also given during the trial in relation to the wife’s limited financial resources.  I also note that following the delivery of my final judgment on 26 February 2015, the wife’s government benefits may have been reduced because the primary care of the two children was transferred essentially to the father. The wife states in her written submissions:

   I have not received any payments from Centrelink since early February 2015 (except for $270 payment yesterday by way of a one off severe financial hardship payment).

8. The wife also submits that she is “awaiting approval for a disability pension due to my post traumatic stress disorder.”

9. Final orders were made, by consent, for the sale of the parties’ real property.   After the usual expenses of the sale are paid and the liabilities of the parties paid, the balance thereafter remaining was ordered to be distributed 55 per centum to the wife and 45 per centum to the husband.  By consent, the base amount of $41,594.57 from the husband’s interest in his superannuation fund was ordered to be transferred to the fund of the wife.  The wife’s financial position may therefore improve in the future but this will depend on the sale price achieved for the real property . 

10. The Independent Children’s Lawyer is funded by Victoria Legal Aid.  There is no submission as to the financial circumstances of the Independent Children’s Lawyer.

11. The financial circumstances of the applicant are not relevant.

12. The respondent was represented by solicitors and had the benefit of counsel for the trial.  However, her solicitors filed a notice of ceasing to act on 26 November 2014.  The respondent did not have the benefit of legal aid following the withdrawal of her solicitors and did not have any solicitors on the record. 

13. The conduct of the respondent in failing to deliver the children to the applicant and initiating proceedings on behalf of the children in the Magistrates’ Court, without taking any steps before this Court and without consultation with the Independent Children’s Lawyer, has been questionable.

14. The proceedings on 30 December 2015 arose in circumstances brought about entirely as a result of the respondent’s failure to deliver the children to the husband on Christmas Day pursuant to Federal Circuit Court orders and also an agreement reached between the husband and the wife which was not in dispute.  Due to the respondent’s actions in unilaterally removing the children from Melbourne, the applicant  brought an application for an urgent recovery order.  This necessitated the attendance of the Independent Children’s Lawyer at the hearing.

15. Orders were made on 30 December 2014 granting the applicant’s urgent application.  The respondent had not filed a response as this point in time.  Therefore, it is debatable whether it can be said that she was “wholly unsuccessful” in the proceedings.

16. There is no information before the Court in relation to whether any offers of settlement were made.

17. The wife appears to be in ill health as she submits multiple times in her written submissions, particularly in relation to “post traumatic stress disorder.”  She submits that she has been too unwell to read the judgment delivered on 26 February 2015.  Having heard the evidence of a psychiatrist who assessed the respondent for the purposes of the trial, I accept that the respondent may suffer from issues affecting her mental health.  I also accept that her financial and emotional circumstances are precarious. 

Conclusion

1. I am satisfied that the respondent does not have the financial resources to pay the Independent Children’s Lawyer’s costs from the hearing on 30 December 2014.  Whilst the recovery proceedings would not have been brought but for the respondent’s actions in taking the children out of Melbourne without the husband’s knowledge or consent, the wife’s lawyers had ceased to act on her behalf and it appears that the respondent received some ad hoc assistance during this time from a legal service and/or a women’s refuge (although the details on what services she had approached were unclear and not forthcoming). 

2. The Independent Children’s Lawyer did not provide any written submissions in relation to the application for costs.

3. After considering the matters set out in s 117(2A), I see no reason to depart from the general principle that each party bear their own costs. Accordingly, the Independent Children’s Lawyer’s application for costs is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 14 April 2015.

Associate: 

Date:  14 April 2015.