OSMOND & BRAND (No.2)

[2015] FCCA 1831

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSMOND & BRAND (No.2) [2015] FCCA 1831

Catchwords:
FAMILY LAW – Costs – application by the father for costs of and incidental to final hearing – finding that the mother made false allegations of alleged sexual behaviour of the father towards the child – mother also deliberately gave misleading information to Family Consultant and other professionals in furtherance of her false allegations – indemnity costs ordered.

Legislation:

Family Law Act 1975, s.117(2),(2)(A)

Collins and Collins (1985) FLC 91-603
Penfold v Penfold (1980) FLC 90-800 at pp 75,053-75,054
Mallet v Mallet (1984) FLC 91-507
Colgate- Palmolive Company & Colgate Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536

Applicant: MR OSMOND

Respondent: MS BRAND

File Number: TVC 1294 of 2012

Judgment of: Judge Willis

Hearing date: 27 February 2015

Date of Last Submission: 27 February 2015

Delivered at: Cairns

Delivered on: 2 July 2015

REPRESENTATION

Solicitors for the Applicant: Dillon Bowers Lawyers

Solicitors for the Respondent: Self-Represented

ORDERS

1. That the mother is to pay the father’s costs of and incidental to the final hearing on an indemnity basis, such costs to be referred for taxation. 

2. The father is to forward correspondence to the last known address of the mother and also care of her work place, setting out correspondence detailing the costs determined by the costs assessor. 

3. The mother will have twelve months to pay those costs from the date the letter is sent by ordinary post.

4. Further, that the mother pay the costs of and incidental to the father’s interim hearing which were reserved on 13 March 2014 as per the Federal Circuit Court scale fixed in the sum of $2,658.00 to be paid within 30 days from the date of this Order.

5. All outstanding Applications are removed from the pending cases list. 

IT IS NOTED that publication of this judgment under the pseudonym Osmond & Brand (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

TVC 1294 of 2012

MR OSMOND

Applicant

And

MS BRAND

Respondent

REASONS FOR JUDGMENT

1. This is an application in relation to the issue of costs.  Final parenting orders were made in this matter on 22 January 2015.  I ordered that the in the event the applicant father was seeking costs, the father was to file and serve written submissions, annexing a draft order and costs schedule by no later than 2 March 2015.  The mother was to file and serve her response material within 21 days of being served with the applicant’s material.  There has been no response from the mother at all.

2. The parties were to also indicate if they were content for the matters to proceed on the papers or if they request the matter be listed for oral submissions. 

3. The Father filed his submissions in relation to costs on 27 February 2015. 

4. Given there was no response from the mother, on 25 March 2015 at 1:00 pm the Court wrote to the solicitors for the mother with a copy to the solicitors for the father which read as follows:

Dear Practitioner

We refer to the Father’s application for costs in this matter.  We note that there has been no response material filed on behalf of the Mother and she is out of time to file her material.

Could you please [sic] if you still act on behalf of the Mother?  If so, could you advise if you are intending on filing a response?

In the event you are no longer acting, could you please confirm that you have forwarded the Father’s costs application submissions to the Mother, if so, when?

In the event the Mother’s solicitor is no longer acting, the Court requests the Father’s solicitor to send the Application and submissions directly to the Mother.   

We look forward to your prompt response. 

1. On the same day the Court received a response from the solicitor for the Mother which read as follows:

   We advise we no longer represent Ms. Brand, the Mother in the above application.

   The Father’s Costs application was forwarded to Ms Brand on 27 February 2015 and no response was received. 

   Please direct all future correspondence and enquiries in relation to this matter to Ms Brand. 

   Thank you for your co-operation.

2. On 26 March 2015 the Court received an email from the solicitor for the Father which read as follows:

   We refer to your email directed to GB Legal of the 25^th March 2015, a copy of which was forwarded to us.

   We also refer to the c/c email received by us this morning from GB Legal dated 25^th march 2015.  It would seem that the mother has in fact been served with a copy of our client’s costs application documentation on the 27^th February 2015 and we presume that we will not be required to forward a copy to Ms Brand.

3. A further email was sent directly to the mother on 27 March 2015 to the last known email address the Court had for the Mother (noting that the Mother emailed the Court from (omitted) on 28 January 2015).  The Court requested confirmation of her postal address and telephone number.  The Court was also provided with another address of (omitted) from the father’s solicitor.  The request was also forwarded to the mother at this email address.  The Court received no response to this correspondence. 

4. On 27 March 2015 I issued an Order in Chambers which provided as follows; “In the event that the Mother fails to file any submissions by the extended date of 10 April 2015, the costs hearing will be determined in chambers and there will be no further opportunity for the mother to be heard on the costs issue.”

5. I am satisfied that the mother is aware of the costs application of the father and had an opportunity to file submissions and be heard in person, if she wished to.  I am satisfied that the mother has chosen not to participate in this costs application.  There is no request from the father’s solicitors to have the matter listed for any further oral argument. 

6. I am asked by the applicant father to make an Order for costs.  The father seeks orders based on indemnity costs set at $53,330.45 or an indemnity basis with such costs being referred for taxation or alternatively, that the mother pay costs on his primary position and thereafter on a cascading basis.  The father submits that there are circumstances that warrant an indemnity costs order.  They include: (a) The conduct of the respondent mother in relation to progressing the father’s time with the child. (b) False allegations regarding the father’s behaviour amounting to sexual abuse of the child. (c) The mother’s concession last minute only at the commencement of trial that equal time (as sought by the father) was appropriate.  

The Relevant Law

1. Section 117(2) of the Family Law Act 1975 is the relevant section. It provides essentially for each party to pay their own costs. S.117(2) provides that the Court can make an order for costs, and when considering whether to do so, the Court is required to consider certain matters set out in s.117 (2A) together with any other relevant matter.

2. In Collins and Collins (1985) FLC 91-603 at page 79,877 the Full Court said:

   “In deciding whether the circumstances justify an order for costs, there is a broad discretion to be exercised, having regard to the factors set out in subs. (2A) so far as relevant.  Those factors…. are not to be read in a restrictive way, however, the discretion remaining is a broad one:  Penfold v Penfold (1980) FLC 90-800 at pp 75,053-75,054 (High Court); quoted in Mallet v Mallet (1984) FLC 91-507 at pp 79,123-79, 124 (by Wilson J).”

3. In Penfold and Penfold (supra), the High Court overturned a decision of the Full Court of the Family Court who upheld an appeal against the trial judge’s decision to order that the husband pay the wife’s costs in relation to a maintenance application.   Importantly the whole of the High Court (who unanimously overturned the Full Court’s decision)  held that:

   (a) The general rule expressed by section 117 (1) that each party should bear his own costs, is not paramount to section 117(2) and must yield whenever a judge finds a particular case where there are circumstances justifying the making of an order for costs.

   (b)  Apart from the requirement that the judge must find that there are circumstances justifying a costs order, there is nothing in section 117(a) or (32) which imposes any additional or special onus on an applicant for costs.  It is not correct to say that an order for costs can only be made in a clear case.

4. Justice Murphy of the High Court also added:   “Presentation of a false statement of financial circumstances which puts the other party to the trouble and expense of disproving it, is a circumstance which justifies an order for costs. Courts should regard such circumstances which tend to undermine the integrity of proceedings with great concern, and should do everything in their power to determine who is responsible in order maintain that integrity.”

(a) The financial circumstances of each of the parties

1. The father is employed full time as a (occupation omitted) in the (employer omitted) on an annual income of $65,972.00 plus allowances.  For child support purposes his income is assessed at $80,533.00.  The mother is employed on a full time basis as the (occupation omitted) of the (employer omitted) on an annual income of $85,000.00.  Her income of child support has changed to $88,782.00. 

(b) Whether either party is in receipt of Legal Aid

1. Neither party to the proceedings is in receipt of Legal Aid.  The father has been privately represented at the trial as has the mother.

(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, direction to answer questions, admissions of facts, production of documents ad similar matters.

1. This provision relates to the conduct of the parties as litigants. 

2. In the judgment I made findings that the mother engaged in calculating conduct towards the father, and that the mother was dishonest in her dealings with the Court, and dishonest in her dealings with the Report Writer.  The mother’s conduct in being dishonest with the Family Report Writer was that she used very carefully chosen misleading words designed to give a false impression about the father’s alleged involvement in purported sexual abuse and what the child said.  I found that the mother did this to further her own application.  Her conduct in this regard is in my view, tantamount to giving false evidence in a financial matter about one’s financial position.  However, it is far more serious than that, as the mother was prepared to manufacture and then perpetrate a false and shameful allegation against the father. 

3. I am very mindful that as a litigant, the mother was prepared to use doctors and paediatricians as a means to concoct what she alleged was possible sexual abuse.  I made findings that the mothers’ conduct in this regard was nothing short of disgraceful.  I was satisfied that the mother utilised this false allegation as an attempt by her through these proceedings to play what she saw as another card in the armoury of techniques she utilised to have the father not become involved in the child’s life.  I was satisfied that the mothers’ allegations in this regard were without foundation, malicious and strategic.

4. The mother in perpetrating a false allegation has shown utter disregard towards the father, the integrity of this Court and for the justice system,

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

1. The proceedings initiated in this matter were not initiated due to the failure of either party to comply with an order. 

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

1. The mother in this matter has been wholly unsuccessful in proving that the child was at risk from the father, in pursuing an application that the father ought to have limited time, and that the father was essentially lacking in capacity such that he could have the child spending equal or significant and substantial time with him.

2. I note also that the mother drastically altered her position on the morning of trial and despite making all of the allegations that she did, she was, without explanation, then offering the father equal time and wanting to settle the matter.  The father did not accept that the mother’s eleventh hour offers of settlement were genuine.  As can be seen from the Court’s reasons for judgment, the mother it seems was prepared to put the father to expense with the allegations she made, however, then abandoned her position when the trial day arrived.  It can also be seen in the judgment, that the mother engaged in obstructive and strategic behaviour with the father and that she “has done all in her power to undermine the father’s relationship with X”.  It is fair to say, that the mother was prepared to make false allegations, engage in the Court processes in a dishonest fashion as she did in her interviews with the Report Writer and her dealings with other professions and when the time came for her to be scrutinized through the forensic processes of a trial and cross examination, she wanted to avoid that whole process.  

(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 father’s solicitor sent a written offer on 9 July 2014 after the release of the Family Report and after the trial directions were issued on 16 June 2014.  That offer was for week on week off when X commenced school and about 5 nights a fortnight prior to that.  The final orders made provide for the child to live primarily with the father and for the mother to spend time with the child each alternate weekend and a night in the off week on specific conditions being complied with, along with holidays and special days. The father has achieved more than he was prepared to settle for as outlined in that written offer.  I note also that the mother was put on notice about the father seeking costs if the father succeeded with orders that were the same or more favourable.

2. I note also that in relation to the reserved costs of the interim application in which the father was successful in securing time with the child to attend and play a role in a family wedding, which time has been opposed by the mother. Again, a letter setting out the father’s position and putting the mother on notice as to the costs to the father (estimate $3,000.00) and that costs would be sought in the event that the father was wholly successful in his application, which he was.  

(g) Such other matters as the Court considers relevant

1. I consider in this matter that the mothers’ dishonesty necessitated a lengthy cross examination, the issuing of various subpoena, and very particularised material being prepared on behalf of the father in order to address the false allegations.  Similarly, I am satisfied that the issues put forth by the mother as to why the child should spend restricted time with the father, were without merit and subsequently time consuming in both Court time and preparation time.

2. I have had regard to all of the aforementioned matters, and in this matter I am satisfied that it is appropriate to make an Order that the mother pay the father’s costs of and incidental to the final hearing and further that the mother pay the father’s costs of and incidental to the costs relating to the interim application of 13 March 2014. 

Indemnity Costs

1. In relation to the costs of an incidental to the trial, I am asked to make costs on an indemnity basis and I am referred to authorities, such as Colgate- Palmolive Company & Colgate Palmolive Pty Limited v Cussons Pty Limited[1] wherein His Honour Justice Sheppard stated that it was useful to list some of the circumstances in which it was thought to warrant the exercise of the discretion.  Those instances included:

   [1] [1993] FCA 536.

   a)Making allegations of fraud and knowing them to be false and the making of irrelevant allegations of fraud;

   b)Evidence of particular misconduct that causes loss of time to the Court and to the  parties:

   c)The fact that proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law:

   d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions: and 

   e)An imprudent refusal of an offer to compromise. 

2. I have considered indemnity costs and the relevant authorities. 

3. In having regard to the issues referred to in the preceding paragraph, I am satisfied that the mother made false allegations and that the unravelling of those false allegations, created further material and expense on the father’s part for both his solicitor and barrister, and I am satisfied that the time to taken to determine that the allegations were false occupied wasted Court time.  I am also satisfied that the mother’s false allegation generated considerations within the Report Writers oral evidence and Family Report, that ought never to have been raised.   The mother of course in pursuing this conduct, caused unnecessary distress for the father in this litigation and attempted to falsely portray him as a father who presented an unacceptable risk to the child.  As I said in my judgment, the mother was prepared to make the most vile of allegations against the father, that of false sexual abuse allegations.

4. I am also satisfied that the mother has refused to settle this matter with the father on terms outlined in the father’s written offer of 9 July 2014.  In light of the subsequent findings against the mother, and her knowledge of the falsehoods she was perpetrating, I consider her refusal to settle on terms outlined with the father, was entirely unreasonable.

5. I am also satisfied that the mother’s material largely amounted to allegations against the father which were taken out of context, and without merit.  This also added to the cost of the trial for the father and resulted in further wasted time through unnecessary cross-examination and preparation for the father’s solicitor and Counsel. This also resulted in further wasted Court time.

6. I am also satisfied that the mother made groundless allegations about the father and I referred to her litany of other complaints about the father a paragraph 68.

7. I have had regard to all of the matters relevant to my consideration as to whether to order indemnity costs.   I am satisfied that having regard to all of the mother’s conduct  in this matter, that this application for costs  falls within the category of cases in which indemnity costs is appropriate.  The mother has shown contempt towards the Court and the justice system in giving false evidence about likely sexual abuse, she has wasted the Court’s time with a myriad of other unsubstantiated allegations, she has been prepared to involve other professions within the Court and those working with children in this deceit. 

8. That the mother pay the father’s costs of and incidental to the final hearing on an indemnity basis, such costs to be referred for taxation.  The father is to forward correspondence to the last known address of the mother and also care of her work place, setting out correspondence detailing the costs determined by the costs assessor.  The mother will have twelve months to pay those costs from the date the letter is sent by ordinary post.

9. Further, that the mother pay the costs of and incidental to the father’s interim hearing which were reserved on 13 March 2014 as per the Federal Circuit Court scale fixed in the sum of $2,658.00 to be paid within 30 days from the date of this Order.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate: 

Date:  2 July 2015