Paige & Tzu (No 2)
[2023] FedCFamC1F 340
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Paige & Tzu (No 2) [2023] FedCFamC1F 340
File number: MLC 9235 of 2022 Judgment of: WILLIAMS J Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – COSTS – Application for child to be placed on watch list after the mother travelled with the child overseas in breach of final consent orders – Application for costs – Consideration of relevant principles under s 117 provisions – indemnity costs – mother ordered to pay father’s costs on a party/party basis Legislation: Family Law Act 1975 (Cth) ss 60CC, 117 Cases cited: Buckley & Buckley [2013] FamCAFC 150
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557
Lenova & Lenova (Costs) [2011] FamCAFC 141
Worth & Worth (No.2) [2019] FamCAFC 126
Division: Division 1 First Instance Number of paragraphs: 69 Date of hearing: 28 March 2023 Place: Melbourne Counsel for the Applicant: Ms Bastick Solicitor for the Applicant: Cahill & Rowe Family Law Solicitor for the Respondents: Litigant in person Counsel for the Respondents: Ms Mariole Solicitor for the Respondents: Coulter Legal ORDERS
MLC 9235 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PAIGE
Applicant
AND: MS TZU
First Respondent
MR B PAIGE
Second Respondent
MS C PAIGE
Third Respondent
order made by:
WILLIAMS J
DATE OF ORDER:
5 MAY 2023
THE COURT ORDERS THAT:
1.The mother’s oral application for the discharge of order 3 of the Orders made by the Hon. Justice Christie on 10 March 2023 (placing the child X born 2018 on the watch list) is dismissed.
2.Order 1 & 2 of the Orders made by the Hon. Justice Christie on 10 March 2023 are discharged.
3.The mother pay the father’s costs and disbursements of and incidental to the father’s Initiating Application filed 28 March 2023 on a party/party basis fixed at $11,646.
4.The mother pay the costs referred to in paragraph 3 hereof to the father’s solicitors on his behalf, contemporaneously with the settlement of the sale of the property situated at F Street Suburb G, or in the event the settlement has occurred, within 7 days of these orders.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paige & Tzu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J:
The application before the Court arises from final orders which were made by consent on 21 February 2023 pertaining to the parenting arrangements for the child, X, born 2022 who is aged four.
The parties to the parenting orders are the parents of the child and his paternal grandparents.
The parties are in dispute about two discrete issues. First, whether the child should remain on the Airport Watch List for a period of two years, in accordance with an ex parte order made by her Honour Justice Christie on 10 March 2023. Secondly, whether the mother should pay the costs incurred by the father and the paternal grandparents because of the mother’s breach of the parenting orders.
Background
The father is aged 32 and is an Australian citizen. The mother is aged 36 and was born in Country E. She is a Country E citizen and also holds permanent residency status in Australia.
The parents commenced a relationship in 2014, married in 2018 and separated in January 2022. Subsequent to the parental separation the child lived with the paternal grandparents from around August 2022 until February 2023.
The father commenced proceedings in Division 2 of this Court on 19 August 2022. The paternal grandparents joined the proceedings on 26 October 2022. Following a mediation between all parties on 14 February 2023, agreement was reached for the child to live with the mother, spend time with the father each alternate weekend and during holidays and spend time with the paternal grandparents each Thursday overnight for 2023, with their time to move to alternative weeks from 2024 onwards.
On 21 February 2023, final parenting orders were made by consent reflecting the agreement reached at mediation. The parenting orders also prescribe the arrangements for the child’s future interstate and international travel and for the child’s Australian passport and Country E travel documents to be held by the father.
Order 45 of the parenting orders provides that if either parent seeks the child travel interstate or overseas, then 60 days prior notice must be provided to the other parent for international travel and 14 days’ notice for interstate travel. The travelling parent is also required to provide details of the proposed trip to the other parent, including flight, accommodation and contact details.
Order 46 of the parenting orders provides for the mother to return the child’s Australian passport and Country E travel documents to the father’s solicitor’s office on or before 28 February 2023.
Order 49 of the parenting orders regulates interstate travel for the child with the paternal grandparents. There are no orders providing for the child to travel internationally with the paternal grandparents.
Because the mother failed to comply with paragraph 46 of the parenting orders on 1 March 2023 and again on 3 March 2023, the father’s solicitor wrote to the mother’s solicitor seeking the urgent return of the documents.
In March 2023, the mother’s solicitor responded and advised the mother was not prepared to return the child’s passport and travel documents to the father and proposed the documents be held by an independent party. The letter sent by the mother’s lawyers included the following:
We wish to make it very clear that our client fully intends on complying with the balance of the Final Parenting Orders, including the provisions which deal with interstate and overseas travel. Our client has no intention of abducting the child or travelling anywhere without the consent of the father.
On 8 March 2023, the father agreed for the mother to provide the child’s travel documents to his lawyers.
In early 2023, the father became aware that the child had not attended kindergarten on three days. Both the father and the paternal grandmother had attempted to contact the mother to ascertain why the child had not attended kindergarten.
In early 2023, the mother sent a text message to the paternal grandmother from a mobile number with a Country E prefix, advising the child had not attended kindergarten because he had a runny nose and a cough and would not be available to spend time with her that day. The mother suggested make up time.
On the same day, the father’s lawyers obtained an urgent ex-parte order placing the child on the Watch List via the court After Hours Service. As a result of enquiries with the Australian Federal Police, the father was informed at 9.35pm that night that the child had left Australia and boarded a Country D flight some days earlier.
The next day, at 2:56 pm, the father called the mother who told him she was at home with the child.
The application was transferred to Division 1 of this Court and heard by Christie J late in the afternoon of 10 March 2023 notwithstanding the conversation between the father and mother. Although they were not parties to the father’s application, the paternal grandparents also appeared at the hearing represented by Senior Counsel.
Her Honour made orders restraining the mother from removing the child from Australia, restraining the child from leaving Australia and placing the child on the Watch List for a two year period. The costs of the application were reserved and the matter was adjourned for directions on 17 March 2023, when it was listed before me.
Proposals of the parties
During the hearing, counsel for the husband emailed to chambers a minute of proposed orders sought on behalf of the husband and the paternal grandparents, which are as follows:
1.That all extant Applications be hereby dismissed and all future court hearings be vacated.
Airport Watchlist
2.That Order 43 of the Orders dated 21 February 2023 and Orders 1-3 of the Orders made 10 March 2023 be discharged.
3.The parties, [Mr Paige] born […] 1990 and Ms Tzu born 1986 […] and their servants and agents are restrained from removing or attempting to remove or causing or permitting the removal of [X] born […] 2018 (male) from the Commonwealth of Australia.
4. [X] born […] 2018 is restrained from leaving the Commonwealth of Australia.
5.It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child [X] born […] 2018 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the childs’ name on the Watch List for a period of two years.
Travel
6.That Order 45 of the Orders dated 21 February 2023 be varied, insofar as the commencement date of such orders shall be 28 March 2025.
Costs Order
7.The Respondent Mother pay indemnity costs of and incidental to these proceedings as follows:
(a) To the Applicant in the sum of $18,936.70 via his solicitor;
(b)To the Second and Third Respondent in the sum of $17,900 via their solicitor;
with such payment to be made no later than 28 April 2023.
8.That paragraph 46 of the Final Orders dated 21 February 2023 remain in full force and effect and that the Father be at liberty to hold [X's] Australian Passport and Travel Documents.
The mother was self-represented and obtained advice from the duty lawyer. Understandably, she did not prepare a Minute of Proposed Orders. The mother opposed the child’s name remaining on the Watch List, but did not oppose discharge of the injunctions preventing the child leaving Australia.
The paternal grandparents were represented by counsel. They did not seek to make submissions about the Watch List order or the child’s international travel. Their participation in the application was limited to an application for costs.
Documents relied upon
The father relied upon the following documents:
(a)Initiating Application filed 28 March 2023;
(b)Affidavits of the father filed 21 March 2023, 16 March 2023, 21 September 2022 and 19 August 2022;
(c)Financial Statement filed 30 September 2022;
(d)Outline of Case document filed 27 March 2023;
(e)Child Inclusive Conference Memorandum dated 13 February 2023 (paragraphs 48, 50 and 53);
(f)Orders made 10 March 2023 and 26 October 2022.
The mother relied upon the following documents:
(a)Affidavit of the mother filed on 28 March 2023;
(b)Financial Statement filed 25 October 2022.
The paternal grandparents relied upon the following documents:
(a)Affidavit of paternal grandparents filed 27 March 2023;
(b)Outline of Case document filed 27 March 2023.
Discussion
Counsel for the father understandably initially made submissions assuming the father was the applicant. However, Order 3 of the orders made by Christie J on 10 March 2023 placed the child on the Watch List for a period of two years , which was the order sought by the father during this hearing. The order was not expressed as until further order and accordingly the order remains valid and in full force and effect, notwithstanding it was made on an ex-parte basis.
I invited the mother to make an oral application for discharge of the Watch List order, which she did and the hearing proceeded on that basis.
The mother opposed the child being placed on the watch list as she wanted the child in the future to be able to travel internationally, particularly because her family lived in Country E. She also opposed handing the child’s passport and travel documents to the husband’s solicitors because she is the child’s primary carer and should have custody of the documents. She was advised there was no application before the court to vary the consent orders pertaining to custody of the child’s travel documentation and I would not entertain any such application. The mother agreed she had made a mistake by breaching the orders and expressed remorse for her actions.
Counsel for the father relied on the mother’s breach of orders in two respects. First, she failed to deliver the child’s passport and Country E travel documents to the father or his solicitor. Secondly, the child travelled internationally without the father’s knowledge or consent less than two weeks after the parenting orders were made. The mother’s breaches of the orders were exacerbated by the letter of March 2023 from her lawyers, advising the father she intended to comply with the orders, when the child was already out of the country and she had obviously not complied with the relevant orders. Her conduct was inexcusable and unjustifiable.
I accept the submissions of Counsel for the father. Despite her remorse the mother’s recent conduct does not give the Court any confidence she would abide by court orders for the child to travel internationally. The letter of March 2023 from the mother’s solicitors was particularly duplicitous, as the mother well knew she was not in the country when she professed future compliance with recent parenting orders.
The mother’s concern was the child would be prevented from travelling internationally if he were placed on the Watch List. As explained to the mother during the hearing, because the father or his lawyers will have custody of the child’s travel documents, even absent a Watch List order, she would still need to obtain the consent of the father for the child to travel and to obtain his passport and travel documents. If the father consented to specific travel in the future, then arrangements could be made to file a consent order in the Court suspending the Watch List order. If the father did not consent to the child’s international travel, then the mother would need to make an application to the Court to secure the child’s passport and travel documents, which would include an application for a temporary suspension of the Watch List order. Any such application would be determined on the merits.
During the hearing I enquired whether the father’s consent is necessary to obtain Country E travel documents for the child, including a passport. There was no definitive answer to my enquiry.
Because of the matters referred to in the preceding paragraphs, I consider the Court should exercise caution to ensure the child could or would not once again be removed from Australia without the father’s knowledge or consent. I consider discharging the injunctions preventing the child from leaving the country and for him to remain on the Watch List strikes a balance between the child’s future international travel and the risk of his removal from the country without the father’s knowledge or consent. Such orders are clearly in the child’s best interests to ensure he spends time with both his father and the paternal grandparents, in accordance with the parenting orders of 21 February 2023.
In reaching my determination, I have had regard to relevant s 60CC(3) additional considerations within the Family Law Act 1975(Cth), which include, but are not limited to s 60CC(3)(b), (c), (d), (f) and (i).
I intend to discharge Orders 1 and 2 made on 10 March 2023 by Christie J, as sought by the father and not opposed by the mother. The Watch List order made on 10 March 2023 for a two year period will remain and is in full force and effect.
Costs
I will now turn to the application for costs made by both the father and the paternal grandparents.
Legal principles
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”), states, subject to the provisions of s 117(2), that the general rule in proceedings in this Court, is that each party to proceedings, shall each bear his or her own costs.
Section 117(2) of the Act provides as follows:
If, in proceedings under this Act, the court is of the 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.
Section 117(2A) of the Act provides, that in considering what order (if any) should be made for the payment of costs, the court shall have regard to the following matters:
(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.
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557, the Full Court said that 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”
I will now address each of the relevant considerations.
Section 117(2A)(a) the financial circumstances of each of the parties
The father and the mother relied upon their respective Financial Statements to persuade the Court of their limited financial means.
In his Financial Statement filed 30 September 2022 the father deposes to an annual salary of approximately $84,000. Since the filing of that financial statement, he has commenced paying $265 per fortnight in child support.
In her Financial Statement filed 25 October 2022 the mother deposes to weekly income of $578 from a single parent pension.
The paternal grandparents did not file Financial Statements in these proceedings. Their counsel advised the Court the paternal grandmother was employed as a health professional and her income was approximately $30,000 per annum. The paternal grandfather worked part time at the family business and earned approximately $15,000 a year. There was no evidence before the Court as to the paternal grandparent’s assets and liabilities. Their counsel advised the court they owned an unencumbered property, but no particulars were provided.
In addition to parenting arrangements, the orders of 21 February 2023 provided for the sale of the parents’ former matrimonial home and for the net proceeds of sale to be divided 62.5 per cent to the mother and 37.5 per cent to the father. The orders also provide for a split of their superannuation entitlements.
Counsel for the father submitted the division of the anticipated proceeds of sale would result in the father receiving approximately $130,000 and the mother approximately $256,000, dependent on the ultimate sale price.
Section 117(2A)(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
None of the parties were in receipt of legal aid.
Section 117(2A)(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
Counsel for the father relied upon paragraphs 6 – 20 of the father’s affidavit filed 21 March 2023 as to the wife’s conduct. In particular she relied upon the two breaches of the parenting orders and the letter of 6 March 2023 from the mother’s lawyers, which are referred to earlier.
Counsel for the paternal grandparents adopted the submissions of the father’s counsel.
The mother professed her remorse for the two breaches of the parenting orders. At the time of the hearing she made it clear she did not agree with the arrangements for retention of the child’s passport and travel documents.
Second 117(2A)(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
From the father’s perspective, the proceedings were necessitated by the mother’s failure to comply with the final orders, because she travelled with the child to Country D without providing requisite notice to the father and failed to hand the child’s passport to the father or his solicitors.
The mother conceded she breached the relevant parenting orders.
Section 117(2A)(e) whether a party to the proceedings has been wholly unsuccessful
The mother has been wholly unsuccessful in her application to discharge the Watch List order
Section 117(2A)(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
On 14 March 2023, the father’s solicitor wrote to the mother’s solicitor in an attempt to resolve the costs dispute (Affidavit of the father filed 21 March 2032, Annexure MP-4).
On 20 March 2023 the solicitor for the paternal grandparents also wrote to the mother about their costs incurred since 9 March 2023 in an attempt to avoid further court attendance (Affidavit of the paternal grandparents filed 27 March 2023, Annexure MCP-02). No response was received from the mother.
Both the solicitors for the father and for the paternal grandparents made offers in writing to the mother with the terms of each offer set out. The costs pertaining to each respective offer were less than the costs now sought.
Section 117(2A)(g) any other matters the court considers relevant
All relevant matters are referred to in these reasons.
DISCUSSION
I have considered all submissions and the relevant legislative factors and conclude there are circumstances which warrant an order for the mother to pay the father’s costs. I do so primarily for the following reasons:
(a)the mother clearly breached very recent parenting orders which were made by consent;
(b)the duplicitous letter from the mother’s lawyers dated 6 March 2023;
(c)the attempts by the father to resolve the issue of the child’s international travel, which were rejected by the mother;
(d)the mother’s impecuniosity is no bar to an order for costs being made where it is otherwise warranted: see Buckley & Buckley [2013] FamCAFC 150 and Lenova & Lenova (Costs) [2011] FamCAFC 141.
I have considered the submissions of counsel for the paternal grandparents and the mother and conclude the circumstances do not persuade me that there should be an order for the mother to pay the costs of the paternal grandparents. I do so primarily for the following reasons:
(a)the paternal grandparents were not named as parties in the original ill-conceived application for the return of the child pursuant to the 1980 Hague Abduction Convention;
(b)it remains unclear why both the father and paternal grandparents participated in the proceedings separately represented, engaging two firms of solicitors and by senior counsel, when they effectively sought the same relief;
(c)I am not satisfied two sets of solicitors and counsel were required to pursue the application.
INDEMNITY COSTS
As I am satisfied that there are justifying circumstances for an order for costs to the husband, the outstanding issues are whether costs should be ordered on the usual party/party basis, or the exceptional indemnity basis.
The principles as to the basis on which indemnity costs should be ordered is set out by the Full Court in Worth & Worth (No.2) [2019] FamCAFC 126 (“Worth”), as follows:
9.The authorities are clear, that for the usual basis to be departed from, exceptional circumstances need to be demonstrated (see, eg, Limousin & Limousin (Costs) (2007) 38 FamLR 478). The categories of such circumstances are not closed (Yunghanns & Yunghanns (2000) FLC 93-029), but some examples are provided in the oft-quoted decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate-Palmolive Co”), and usefully, Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84,660, drew from his Honour’s decision the following:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.
(c)Evidence of particular misconduct causing loss of time to the court and to other parties.
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
(e)An imprudent refusal of an offer to compromise.
In support of an order for indemnity costs, counsel for the father relied upon two factors referred to in Worth, namely:
(a)Evidence of particular misconduct causing loss of time to the court and to other parties.
(b)an imprudent refusal of an offer to compromise.
The paternal grandparents adopted the submissions on behalf of the father.
The mother did not make any relevant submissions.
Although the mother breached recent consent orders, presumably instructed her solicitors to write the letter of 6 March 2023, and failed to respond to offers to resolve the application, on a finally balanced consideration of all factors relevant to indemnity costs, I am not persuaded to make an order for indemnity costs. Whilst the mother’s conduct was a breach of the orders, ultimately the child was returned to Australia after a few days and she advised the father in early 2023 prior to his pursuing his “Hague” application later that day. Furthermore the financial position of the mother will remain modest, even after she receives her share of the proceeds of sale of the property. I will order the mother to pay the father’s costs on a party/party basis.
CONCLUSION
In the Outline of Case document filed on behalf of the father, he sought costs against the mother in the sum of $18,936.50, calculated on an indemnity basis. As an alternative position, his counsel sought party/party costs between $9,992 and $12,937.22 calculated according to the relevant scale. The mother did not make any submissions about quantum.
In order to avoid further litigation and legal costs about the appropriate quantum of party /party costs, I propose to fix the father’s costs at $11,464 which is the midpoint of the estimated costs range. The costs will be payable contemporaneously with the settlement of the sale of the F Street, Suburb G property, or if settlement has taken place within 7 days of these orders.
I will make orders accordingly.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 5 May 2023
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