Paolo & Malena (No 2)
[2022] FedCFamC2F 1467
Federal Circuit and Family Court of Australia
(DIVISION 2)
Paolo & Malena (No 2) [2022] FedCFamC2F 1467
File number(s): CAC 432 of 2018 Judgment of: JUDGE W J NEVILLE Date of judgment: 2 November 2022 Catchwords: FAMILY LAW – Parenting – application for costs filed after delivery of final judgment – where the Father seeks the Mother pay his costs of the final hearing in the fixed sum of $60,000 – where the conduct of the Mother throughout the proceedings is considered – where the Orders sought by the Father in the substantive proceedings were found to be in the best interest of the children – where the Mother has not complied with Court directions or Orders – exceptional circumstances where the Mother was wholly unsuccessful and her conduct as a litigant make it appropriate to order costs in the sum of $28,000. Legislation: Family Law Act 1975 (Cth) s 117(1), (2) & (2A)(a) – (g) Cases cited: Paolo & Malena [2022] FedCFamC2F 81
Stephens v Stephens (2011) 44 Fam LR 117
Wrenstead & Eades (2016) FLC-697
Division: Division 2 Family Law Number of paragraphs: 19 Date of last submission/s: 9 August 2022 Date of hearing: In Chambers on the papers Place: Canberra Solicitor for the Applicant Neilan Stramandinoli Family Law Solicitor for the Respondent Self-represented ORDERS
CAC 432 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PAOLO
ApplicantAND: MS MALENA
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
2 November 2022
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Pursuant to Section 117(2) of the Family Law Act 1975 (Cth), the Respondent pay the Applicant’s costs of, and incidental to, the Final Hearing in the substantive proceedings, fixed in the sum of $28,000.00 by no later than 31st January 2023.
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 a pseudonym Paolo & Malena (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
This is a long running parenting and property matter. The property aspect settled by consent in December 2019. Following a Final Hearing in April 2021, Final Orders in relation to the parenting aspect were pronounced with reasons on 3rd February 2022.[1]
[1] Paolo & Malena [2022] FedCFamC2F 81.
On 4th March 2022, the Father filed an Application in a Proceeding by which he sought (to speak somewhat generally) the Court award him costs for the Final Hearing, as agreed or assessed. This was later amended, pursuant to his written submissions, for there to be paid a fixed sum of $60,000 for his costs. In the light of the long running litigation, this was a relatively modest amount and less than one third of the total legal fees incurred by the Father. This may not be of much comfort to the Mother.
Orders dated 3rd May 2022 directed (inter alia) that the Mother file a Response, Affidavit and updating Financial Statement, and for the parties to advise thereafter whether, subject to any opposing Application, the matter could be dealt with in Chambers on the basis of the material filed and submissions. The Mother did not comply with those Orders, save emailing an incomplete Financial Statement to Chambers. The Mother alleged that she would, or could, not complete the Financial Statement due to a Family Violence Order (‘FVO’) being in place. Regrettably, no further details about this FVO were provided. A copy of the FVO was later provided to the Court after the Father’s material was filed.
The matter was listed for directions to determine the procedural course forward. The Mother emailed Chambers advising that she would not be in attendance at the mention/directions listing as she did not see any “logical benefit”. She stated further that “I do not want to be bothered or harassed any further for the next 12 months”. A copy of that email in full is attached to these reasons at Annexure A. As foreshadowed, the Mother did not attend the directions listing on 19th July 2022, at which Orders were made for the filing of submissions and for the issue of costs to be dealt with in Chambers. The Father consented to the matter being dealt with “on the papers” in Chambers. Procedural Orders as proposed by the Court were emailed to the parties.
In considering the question of costs, the following features of the litigation are particularly significant: (a) the Father was wholly successful in his substantive Application for parenting Orders (those Orders were also supported by the Independent Children’s Lawyer (“ICL”)), (b) the Mother consistently made extreme allegations of violence against the Father, all of which were contradicted by independent evidence and ultimately rejected by the Court, (c) the Mother unsuccessfully sought to appeal the primary judgment (her application for leave to appeal was dismissed with costs in March 2022),[2] and (d) the Mother has not complied with most Orders or Court directions since the delivery of the primary judgment. She has provided a somewhat incomplete Financial Statement.
[2] Paolo & Malena [2022] FedCFamC2F 81.
The Mother’s conduct as a litigant in person, in the light of the principles set out below, and the history of this litigation, regrettably warrant a cost Order being made in the Father’s favour. However, this will be a more modest amount than sought by the Father, in the fixed sum of $28,000. This amount is to be paid by the Mother by the end of January 2023.
Factual Overview
For the purposes of determining the discrete issue of costs, it is sufficient to note the following paragraphs ([1] – [5], [9] – [10] and [14] – [17]) from the primary judgment, regarding the respective positions and evidence of the parties: (emphasis added; internal citations omitted)
[1] The Respondent Mother in these parenting proceedings, which concern the two children of the relationship (nine year old [X] and six year old [Y]; either “the boys” or “the children”), made (and continues to make) extremely grave allegations against the Applicant Father. Summarised, the allegations are that, during the relationship, the Father held (a) a shotgun to the Mother’s head threatening to kill her, (b) a large kitchen knife to the Mother’s throat also threatening to kill her, and (c) drove at approximately 200 kilometres per hour with the Mother and the children in the car, threatening to kill the whole family.
[2] In the course of her oral evidence, the Mother also claimed that during the relationship she had been raped by the Father on more than one occasion.
[3] The Father denied all of the Mother’s allegations.
[4] Curiously and unfortunately, the Mother never reported or even mentioned any of these very serious allegations to any of the following: (a) her psychologist, (b) domestic violence crisis services, (c) the police, (d) the local Magistrates Court when applying for a Family Violence Order, (e) her previous lawyers, or (f) either of two independent experts (psychologist, [Dr E], in June 2018, and psychiatrist, [Dr D], in November 2019). To some of the persons mentioned, the Mother said that she did give information of the assaults and threats by the Father to them but, for reasons unknown, no such grave matters were recorded. Indeed, as noted below, a number of the Reports of the experts (personal and independent) strongly refuted the Mother’s accounts. The Mother went so far as to contend that the experts were professionally negligent in not recording, and/or consistently mis-recording what she said in the course of her consultation with them.
[5] The Mother said that she made notes of the incidents that gave rise to her allegations. Unfortunately again, neither the diary in which she said she recorded the events in question, nor the separate electronic records that also had some accounts of the said events, could be found or recovered.
…
[9] Among many tragedies and serious anomalies in this matter was the Mother’s evidence. The Mother clearly believes that the Father has perpetrated serious, indeed appalling, violence against her, and that he continues to pose a grave risk to her, and now to a lesser degree, to the children. Apart from her own evidence, there is no other evidence to support her remarkable and troubling claims. Indeed, there is very significant, independent evidence that disproves and dispels them. The Mother presents (and has done so throughout the length of these long proceedings) as a smart, studied and finely-crafted attractive/engaging, intelligent and child-focussed person. Yet her evidence in so many respects bordered completely on the surreal. She would have the Court believe that (a) she alone knows the truth of the Father’s character, and his malevolence (towards her and the children) and deadly intent, and (b) she alone has been the source of all light and truth in the relationship and continues to be so in relation to the children. Yet not only has she never told experts and authorities over a very significant period of time what she has endured but also she has been assessed by two highly qualified and experienced experts that, for example, she is either disingenuous and or delusional in her appraisals, particularly of the Father. Were the Mother’s accounts to be believed, it has meant that the Father has been such a skilful actor over such a long period that he has beguiled and hood-winked two independent experts, the ICL, and the Court, into believing that (i) he is not a monster, (ii) he loves and cares for his children (and that the boys adore him – they love their Mother also), (iii) he has their best interests at heart, and (iv) he poses no relevant threat either to the Mother or to the children.
[10] For my part, I do not accept the Mother’s evidence primarily because of the very significant weight of evidence against it. Moreover, her account of so many events was incredible – literally. Her report of so many events would require the Court to make astonishing findings against the Father that were not, and are not, credibly open on any piece of evidence – individually or cumulatively. It would also require the Court to find that the Father’s presentation and consistent narrative – over a good many years – was so contrived and misleading that he should change careers and become an actor, so convincing was he as a witness. But the Mother would not, on any aspect of the evidence, countenance that she could be wrong in any way. Her infallibility was complete and resolute in every respect.
…
[14] Consistent with the Father’s account and contrary to the Mother’s, the children strongly want to spend more time with him. The children’s consistent disposition and reports to two highly experienced report writers support the Father’s much more irenic account of his relationship with the children (and with the Mother for the most part) and is completely inconsistent with the Mother’s account of volatility and much else set out in detail below.
[15] The Mother is a significantly articulate and forceful personality. At times in the course of the litigation, she was self-represented. She firmly believes without the slightest doubt that the family violence she alleges actually occurred. In my view, the evidence available to the Court strongly undermines the Mother’s belief and position. On the evidence, there are clear mental health issues regarding the Mother. For example, in her 28th November 2019 Report, psychiatrist [Dr D] stated (at pars.111, 400 and 402 respectively) that if the Mother “truly believed these [certain accusations regarding the use of poison on the boys] to be true they constituted persecutory delusions”, and that the Mother’s world view was “either delusional or disingenuous.”
[16] Regrettably and concerningly, the Mother consistently refused to acknowledge any such issues. She confirmed in her evidence that, even if the boys were stopped from spending any time with her until she obtained a mental health assessment, she said that she would refuse to undertake such an examination.
[17] It follows from what has just been said, and what follows, that the Orders sought by the Father, with which the ICL agrees, are in the best interests of the boys, pursuant to s.60CA of the Family Law Act 1975 (Cth) (“the Act”).
The Court’s concluding comments regarding parenting matters and final Orders were relevantly summarised at pars.104 – 110. These paragraphs commented further on the attitude and evidence of the parties, particularly the Mother’s grave if not somewhat desperate and unsubstantiated allegations, which are relevant to the current Application for costs. Again, for ease of reference, those paragraphs are set out below:
[104] I cannot and do not make any definitive finding that the despicable acts complained of by the Mother never happened. However, there is only the Mother’s troubled evidence that they did and a very large amount of independent evidence that they did not. The Mother plainly and vehemently believes that she was the victim of extreme family violence and over a significant period of time. The Court has significant expert evidence that the Mother has suffered from various psychiatric and psychological conditions including paranoia and delusions. She does not present in Court in these ways, but it is otherwise impossible to account for the extraordinary dissonance in her evidence regarding the allegedly violent and completely villainous Father she perceives and fears, on the one hand, and the genial, gentle, child-focussed Father deeply beloved by the boys (who have not the slightest fear of him at all), as well as the strong expert evidence that supports his account and deeply, if not thoroughly, undercuts the Mother’s evidence, on the other.
[105] In my view, the Orders proposed by the Father are not only in the best interests of the boys but also are the most preferable and least likely to lead to further litigation.
[106] It remains only to consider whether an Order should be made for the Father to have sole parental responsibility. Two observations may be made briefly – in addition to what has already been stated in these reasons.
[107] First, the extensive allegations of extreme family violence, of themselves, in my view are more than sufficient to rebut the presumption under s.61DA of the Act for equal shared parental responsibility.
[108] Secondly, the evidence of both parties similarly is more than sufficient to enable the Court to find that the communication between the parties is essentially, and practically, non-existent.
[109] Accordingly, and also because the boys will be spending more time with the Father during school terms, there should be an Order for sole parental responsibility in the Father’s favour. He is required to keep the Mother informed of any major long-term decision regarding the boys care and welfare. Indeed, absent emergency, he is to consult the Mother about any such issue beforehand but ultimately he is vested, pursuant to these Orders, with sole parental responsibility to make such decisions.
[110] The Orders sought by the Father are, in my view, very much in the children’s best interests. To a reasonable degree, and while ensuring the children maintain a good and close relationship with their Mother, the Orders sought by the Father and now made by the Court will safe-guard them from the ongoing, and thus far, unrelenting and tremendously negative view (both explicit and implicit) that the Mother has of the Father. Moreover, notwithstanding the relative peace over the last short while when a shared-care arrangement has been in place (presumably to some degree this “peace” has been because the parties have been before the Court and thereby subject to a greater scrutiny than would otherwise be the case), I have a greater degree of confidence in the Father supporting and encouraging the boys’ relationship with the Mother than vice-versa.
Applicant’s Orders sought
The Applicant Father’s Orders sought were contained in an Application in a Proceeding filed 4th March 2022. They were as follows:
1.That the Respondent Mother pay the father's costs of and incidental to the preparation for the final hearing on 21 and 22 April 2021 as agreed or as assessed.
2. That the Respondent Mother file her material in reply within 14 days.
3. Such further orders as the Court deems appropriate.
Respondent’s Orders sought
As noted above, pursuant to Orders dated 3rd May 2022, the Mother was directed to file and serve a Response to the Father’s Application in a Proceeding, together with an Affidavit and Financial Statement. Notwithstanding those Orders, no material has been filed by the Mother, except for an incomplete Financial Statement provided by email on 12th July 2022.
Applicant’s written submissions
The Father’s written submissions were filed on 9th August 2022 and were as follows (emphasis in original; footnotes omitted):
1.On 19 July 2022, the parties were ordered to file 2 page written submissions in relation the father’s application seeking an order for costs against the mother. The father relies on his Application in a Proceedings and his Affidavit filed on 4 March 2022. The father also relies on his Costs Notice filed with this Honourable Court on 18 July 2022 with respect to the costs paid by him from the commencement of the substantive proceedings on 4 March 2018 to date which are inclusive of the parenting and property proceedings and the FVO proceedings.
2.The father seeks a fixed sum of costs be awarded to him in the amount of $60,000 rather than an amount as agreed or as assessed. The sum sought by the father relates only to the costs incurred by him from 3 December 2019 to the date of the final hearing which occurred on 22 and 23 April 2021.
3.Section 117 of the Family Law Act 1975 (“S117”) provides that in family law proceedings each party should bear their own costs. The Court may make an order for costs if the Court is of the opinion that there are circumstances that justify it doing do. The father’s submissions address the relevant factors in S117(2A) which the Court is required to take into consideration when making an order for costs. However, it is noted that there is nothing to prevent any one factor within s117 being the sole foundation for making an order for costs1.
4.The father’s Initiating Application filed on 8 March 2018 sought Orders for an equal shared care arrangement both on an interim and final basis. After the parties paid for two privately funded family reports from [Dr E] dated 8 June 2018 and another from [Dr D] on 26 November 2019, on the first day of the final hearing listed on 2 December 2019, the final hearing was adjourned and the parties reached an interim agreement for the children to live in an equal shared care arrangement, in circumstances where the report from [Dr D] recommended the children to live primarily with the father. The matter was further listed for final hearing on 8 and 9 April 2020 however it was adjourned due to the outbreak of the COVID-19 pandemic.
5.From 3 December 2019, no offers of settlement were made to the mother as it was the father’s evidence that the mother refused to communicate with him in any meaningful way regarding the children and respectfully there was little point as the mother had escalated her allegations of serious family violence committed by the father including raising fresh allegations during cross examination which were ultimately not accepted by the Court.
6.In the father’s Minute of Orders Sought filed in preparation for the final hearing on 3 April 2020, he sought Orders for primary care of the children in accordance with the recommendations in [Dr D’s] report dated 26 November 2019. Those Orders were pursued by the father at the final hearing on 22 and 23 April 2021. It is submitted that the mother was on notice of the specific orders sought by the father from his Minute of Orders Sought filed on 3 April 2020. The father’s Case Outline and Minute of Orders Sought filed on 14 April 2021 set out the father’s Minute of orders Sought and those Orders were adopted by His Honour and they were largely the same as his Orders sought in his minute filed 12 months earlier. The father was therefore wholly successful, yet he was put to the expense of a final hearing.
7.It is submitted that the mother ignored Orders of 3 May 2022 requiring her to file a Response, Affidavit and a Financial Statement by 12pm on 24 May 2022 and is indicative of her attitude throughout the substantive proceedings. Instead, on 12 July 2022 the mother emailed the Associate an unsealed digitally signed Financial Statement, and “… [she] did not want to be bothered or harassed any further for the next 12 months…”. It was clear from the mother’s language in her email to the Associate that she was aware she was required to file responding material. The mother failed to participate in the Mention that was listed before his Honour, Judge Neville on 19 July 2022.
8.The mother currently is not in receipt of a grant of Legal Aid. She is self-represented from the time she filed her Notice of Address for Service on 5 December 2019. She was however afforded the privilege of representation of Counsel and a solicitor on the three occasions that the matter was listed for final hearing (in December 2019, in April 2020 and in April 2021) at no cost to her pursuant to S102NA. The father did not have the same privilege and incurred substantial legal fees for his representation including Counsel.
9.The mother’s Financial Statement discloses that she owns a house with equity of $310,000, that she is working part-time earning a gross income of $1,440 per week and that the father is paying her child support of $29 per week. There is no evidence as to why she is working part-time. It is not clear whether the mother is living with anyone who is assisting her to meet her financial commitments.
10.The father works for his father as an [tradesman] earning $96,000 per annum. He has the primary care of the children. He is not likely to receive any child support from the mother.
11.The mother filed an Appeal on 1 March 2022 in relation to His Honour Judge Neville’s reasons for Judgment. The mother’s Appeal was dismissed with costs.
Respondent’s written submissions
Again, notwithstanding Orders dated 19th July 2022 directing both parties to file an Outline of Submissions, no submissions were provided by the Respondent Mother.
Outline of principle
Pursuant to section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) the general rule in family law litigation is that each party bears his or her own costs. However, section 117(2) provides that a Court may apply its discretion and make such Order for costs as it considers just if “the court is of opinion that there are circumstances that justify it in doing so”.
The statutory and jurisprudential considerations in relation to making (or not making) Orders for costs are well known. Although well known, it is sufficient to note the following from the Full Court decision in Stephens v Stephens.[3] Beginning at [62], the Full Court said (emphasis added):
[3] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41] :
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
In the same case, the Full Court commented summarily on the award of indemnity costs, relevantly at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
In the light of these principles, I note the following.
Consideration & disposition
As the authorities noted above set out, the factors for the Court in considering whether to make a costs Order are laid out in subsections 117(2A)(a) – (g) of the Act.[4] The application of any single subsection is sufficient to warrant the making of an Order for costs.
[4] Family Law Act 1975 (Cth).
The most critical matters regarding the Court’s consideration of costs in the Father’s favour, as laid out in the subsections of 117(2A), are as follows:[5]
(a)Financial circumstances: The Father earns a modest income as a tradesman; he also works for his Father as a transport worker. Pursuant to the Orders of the primary judgment, the Father has sole parental responsibility and primary care of the two children, aged 10 and 7 years old. Notwithstanding this, he pays a very modest amount of child support to the Mother. The Court has very limited material in respect of the Mother’s financial circumstances and earning capacity. From the evidence available, being an incomplete Financial Statement, the Mother currently earns slightly less than the Father, working part time in the Employer DE. However, there is no known reason for the Mother’s selection to work only part time and on this basis, it follows that she would have a higher earning capacity. Neither party, to the Court’s knowledge, has any impairment or limitation one way or another restricting their working and earning capacity. I note, however, that the Mother advised the Court that one strong reason (in her view) for not now engaging in the current Application is because she is expecting another child.
(b)Legal Aid: The Mother has been self-represented throughout the litigation, incurring very limited, if any, legal costs. She was afforded legal assistance, including Counsel, from Legal Aid ACT for the Final Hearing under a section 102NA Order. The Father has had lawyers for the entire litigation and, as the Applicant in the substantive proceedings, incurred significant expenses due to the prolonged nature of the litigation, including a two-day Final Hearing.
(c)Conduct as a litigant: Throughout the litigation, the Mother continually made extreme and unsubstantiated allegations against the Father, which were not supported by independent evidence and ultimately not accepted by the Court. The Orders made by the Court in early 2022 were those contained in the Father’s material filed in April 2021. The Mother was on notice of these Orders Sought for almost 12 months. Moreover, as noted earlier, the parties consented to interim Orders in 2019 for an equal time arrangement for the children. Alarmingly, the Mother then escalated the level of contest by making immensely serious, damaging allegations against the Father. Further still, the Mother’s grave allegations against the Father were in circumstances where she had the benefit of two expert Reports, and in particular where the Report from Dr D made very clear and concerning diagnoses, among other things, about the Mother’s delusional capacities or tendencies, and recommended that the children live primarily with the Father. In the face of such clear expert evidence, which the Court ultimately accepted, the Mother continued in her alarming pursuit of the Father. If there was a hierarchy of matters that warrants a costs Order (recalling that, according to principle set out above) even a single factor can ultimately found a costs Order.
(d)Failure of a party: As noted above, the Mother has failed to comply with most Orders and directions of the Court for the filing of material and attendance at Court events. The extent of her engagement in these subsequent costs proceedings, as also noted above, is an incomplete Financial Statement and email of 12th July 2022 annexed to these reasons.
(e)Wholly unsuccessful: The Mother was wholly unsuccessful in the substantive proceedings, such that the Orders sought by the Father, pursuant to his material filed in early 2021, were ultimately made by the Court in full.
(f)Offers of settlement: The Father noted that no settlement offers were made to the Mother after December 2019, however, indicated that this was in circumstances where the Mother had never accepted any proposal suggested by him throughout the course of the litigation. Notwithstanding the property settlement in late 2019, given the history of this litigation, I accept the submissions from the Father in this regard.
[5] In addition to the authorities noted above, particularly on the matters now considered, see also the Full Court’s discussion in Wrenstead & Eades (2016) FLC-697.
In the light of the above, and the primary judgment, and the reasons therein, I accept the submissions on behalf of the Father. There are sufficient grounds pursuant to s.117 of the Act to warrant a costs Order being made in the Father’s favour. In my view, however, the Mother’s conduct has not been so negligible as to warrant the full amount sought by the Father of $60,000. The Court recognises that the Mother is, and has been for the most part of this litigation, self-represented. In my view, a level of consideration needs to be brought to awards of costs in the circumstances here, recalling that, among other things, costs are never intended to be a “punishment” or punitive but, instead, are to be a “partial indemnity”. A more modest amount of $28,000, being just under half of the costs sought by the Father, in the Court’s view, is an appropriate amount in the circumstances. The Mother is to pay this sum by the end of January 2023.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 2 November 2022
Annexure A
Dear Collagues,
In these objective circumstances, in order to ensure procedural fairness for all parties, his Honour requested that the case be sent back to determine the procedural course further.
I have enclosed my current financial statement, as requested.
In regards to my home and workplace addresses these have not been disclosed due to security reasons, as Mr Paolo is under a new Family Violence Order (FVO) as he is a danger to us all.
In order to ensure procedural fairness for all parties and also provide you with the current situation in relation to me and my children. I especially appeal to their psyche, which has been negatively impacted in recent months directly related to the long days spent with their father and the lack of necessary days with their mother, which has also been noticed by their teachers from school and has been discussed with me.
To ensure procedural fairness for all parties and to determine the procedural course further, another very concerning negative psychological aspect that is impacting the children is that their father is constantly trying to persuade and pressure them with the fact that they should leave the school they love and go to a new school and environment that is totally unknown and inadequate to them.
In order to ensure procedural justice for all parties, which the honourable court emphasizes, I am also submitting to you the new Family Violence Order (FVO) that has been issued as the current provision against the children's father and the chronology of his recent abuse and disobeying and exceeding the Judge's decisions and orders in place.
I am also awaiting a response to the letter which was written to you on the occasion of the Judge's decision which was made on the 22nd March 2022 and to which I still have not received any answer to upon the filing of my appeal and the total rejection of the judicial decisions which were addressed to me by the Honourable Court and Judge Neville.
In order to ensure procedural justice for all parties and procedural course further I again emphasize and stand behind my decisions that I do not accept them because I categorically think and confirm that they were wrongly made and have very disturbing consequences on the psyche of my children who are currently experiencing very difficult psychological traumatic times, due to such illogical decisions and actions that are likely to be reflected throughout their young lives.
I stand by and want to renew my appeal against the following orders, which was denied to me due to bureaucratic errors.
The honourable court made an honourable decision led by Judge Neville and according to that decision, follow his orders that have been handed down, in which most of the orders benefit you, therefore we have nothing more to discuss. This honourable court found no risks associated with Mr Paolo but on the contrary the father of the children requires restraint as it is evident from his behaviour and recent events that he is becoming more and more unpredictably unstable and more dangerous, thats why he has been issued with a new Family Violence Order (FVO) from the Magistrates Court.
Given that I am currently in the blissful state of pregnancy, I do not want to be bothered or harrassed any further for the next 12 months, as I will be on maternity leave which is far more important in my life than all of your constant illogical legal assumptions.
I do not see any logical benefit of a conference between the parties on the 19th of this month, since I have provided the following to you in writing.
Yours Faithfully,
Ms Malena
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