Partlett & Partlett
[2021] FedCFamC1F 103
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Partlett & Partlett [2021] FedCFamC1F 103
File number(s): WOC 777 of 2014 Judgment of: ALTOBELLI J Date of judgment: 5 October 2021 Catchwords: FAMILY LAW – COSTS – Indemnity Costs – Indemnity costs ordered in a fixed sum. Legislation: s 117 of the Family Law Act 1975 (Cth) Cases cited: Bhatt & Acharya (Costs) [2017] FamCAFC 71
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Lenova & Lenova (Costs) [2011] FamCAFC 141
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Division: Division 1 First Instance Number of paragraphs: 25 Date of last submission/s: 7 July 2021 Date of hearing: By way of written submissions Place: In Chambers Solicitor for the Applicant: Bowral Legal Solicitor for the Respondent: Coutts Solicitors & Conveyancers ORDERS
WOC 777 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PARTLETT
Applicant
AND: MS D PARTLETT
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
5 OCTOBER 2021
THE COURT ORDERS THAT:
1.Pursuant to s 117 of the Family Law Act 1975 (Cth), the Respondent pay the Applicant’s costs of and incidental to the Initiating Application filed 24 August 2020, including any costs of and incidental to the Application in a Case filed 18 May 2021, in the sum of $8,697.70 (inclusive of GST).
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 Partlett & Partlett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
By way of an Application in a Case filed 18 May 2021, Ms Partlett (“the mother”) sought an order for costs against Ms D Partlett (“the paternal grandmother”) on an indemnity basis of $8,697.70, or otherwise as agreed or assessed. The mother is the Respondent in what will be described as the substantive parenting proceedings before the Court, but is the Applicant in the present application. The Applicant in the substantive parenting proceedings is Mr Partlett (“the father”), who is the son of the paternal grandmother.
On 24 August 2020 the paternal grandmother filed an Initiating Application in which she sought to spend time with her grandchildren, being the children of the father and the mother. There were a number of curious aspects about the paternal grandmother’s application: it did not name the father as a respondent, it was filed in the Federal Circuit Court of Australia despite the substantive proceedings being in the Family Court of Australia, and the Independent Children’s Lawyer for the children was not served with the application. When the paternal grandmother’s application came before the Court, for an unexplained reason she opposed the consolidation of her application with the substantive proceedings. One further relevant matter is that the paternal grandmother and father live in the same residence.
The substantive proceedings between the parents in relation to the children are complex proceedings involving the assessment of the risk of harm to the children, including the risk of filicide. The paternal grandmother was well aware of these proceedings and, for example, was involved in the interviews undertaken by the single joint expert, Dr B. In the substantive proceedings the fact is that the children had not seen their father for many years, and various orders had been made by the Court to the effect that the father was not to have any contact with the children or the mother in any way.
The paternal grandmother’s application was to the effect that the children spend time with her graduating, eventually, to one weekend each month from 9am on Saturday until 5pm on Sunday, as well as on special days. She undertook, however, that the father would not be present when the children were in her care.
On 16 April 2021, the paternal grandmother filed a Notice of Discontinuance of her application.
The mother’s case is that she incurred legal costs including in relation to Court attendances, and in preparing her response to the paternal grandmother’s application.
The paternal grandmother by way of a Response to an Application in a Case filed 30 June 2021 asked the Court to dismiss the application for costs.
THE EVIDENCE BEFORE THE COURT
The mother relied on the following documents in support of her case:
(a)Her Affidavit filed 14 May 2021;
(b)Her Application in a Case filed 18 May 2021;
(c)Her written submissions filed 1 June 2021; and
(d)Her Financial Statement filed 2 June 2021.
The paternal grandmother relied on the following documents in support of her case:
(a)Her Response to an Application in a Case filed 30 June 2021;
(b)Her Affidavit filed 30 June 2021;
(c)Her Financial Statement filed 30 June 2021; and
(d)Her written submissions filed 30 June 2021.
THE APPLICABLE LAW
The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748.
An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that:
(2)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 the court may 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) sets out the matters that the Court is to have regard to:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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.
Although the Court is required to consider each of the abovementioned factors, it is plain that their relevance to a particular matter will depend upon the circumstances of that case and they should be considered in that light. That is, no one factor prevails over another and it is a question of the weight that is to be afforded to each of the relevant factors depending on the circumstances of the matter: Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24]. There is also “nothing to prevent any factor being the sole foundation for an order for costs”: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at [41].
Whilst the applicant in a costs application must establish the circumstances justifying the making of a costs order, the Court is not limited to making such an order only in what has been described as a "clear case": Penfold v Penfold (1980) 144 CLR 311.
ASPECTS OF THE EVIDENCE
There are disconcerting aspects of the evidence that the Court needs to highlight. In the paternal grandmother’s Affidavit filed 29 June 2021 she deposes at [7] that she was not aware that there were ongoing proceedings between the father and the mother in relation to parenting arrangements. That is plainly incorrect, if not patently false. The single joint expert report of Dr B dated 16 September 2018, which is on the Court file, records that he interviewed the paternal grandmother on 8 June 2018. The context of the interview made it palpably clear that the substantive parenting proceedings between the father and the mother were ongoing. This error on the paternal grandmother’s part was repeated at [16] of her Affidavit where she deposes that it was not until 9 October 2020 that she became aware that there were current proceedings on foot. At [18] the paternal grandmother acknowledges Dr B’s report was made available to her on 22 December 2020. The paternal grandmother does not depose to whether she actually read this report but the Court infers that she did, and in any event is of the view that she should have read the report given that a specific order of the Court was made to facilitate her receiving the report. If she had read the report, it must have become apparent to her that she had been interviewed in 2018, and was thus well aware of the ongoing proceedings between the father and the mother.
The Court acknowledges that the paternal grandmother deposes to suffering a stroke on 30 November 2020 and spending six weeks in hospital which no doubt included significant rehabilitation. Indeed, she deposes that it was due to her declining health that she decided she could no longer pursue the proceedings. Notwithstanding her stroke on 30 November 2020, the Notice of Discontinuance was not filed until almost five months later. It beggars belief firstly, that the paternal grandmother did not read the report and secondly, that the strong recommendations made against the children spending any time with their father, as well as adverse observations about the paternal grandmother herself, did not contribute to her decision to discontinue her application.
DISCUSSION
In substance, and relying on the considerations referred to in s 117(2A) of the Act, the mother contended that the paternal grandmother’s conduct of the proceedings, and her complete lack of success, would justify not just the making of an order for costs, but costs on an indemnity basis.
In effect, the paternal grandmother’s opposition to costs is based on her parlous financial circumstances, the mother’s conduct of the case, and a denial that filing a Notice of Discontinuance constituted a total lack of success in the proceedings. The Court observes that one difficulty with the submissions filed on behalf of the paternal grandmother was that she maintained that she did not know of the substantive proceedings or of the report of the Dr B, which is plainly incorrect.
Both parties raised their own financial circumstances as a relevant consideration for the making of a costs order. Both parties filed financial statements. The paternal grandmother receives an Aged Pension of $475 per week, but owns her home which she values at $1,250,000. In addition, she deposes to monies in a bank account in excess of $8,000. The mother’s total income is approximately $1,089 per week, but most of that is from Centrelink benefits. She rents her accommodation and her only assets appear to be about $90,000 in savings accounts. There is nothing in the financial circumstances of both parties that contraindicates the making of a costs order, if it is otherwise appropriate. Even if it could be said, for example, that the paternal grandmother is cash poor, but asset rich, any form of impecuniosity is not necessarily a bar to the making of a costs order: see, e.g., Lenova & Lenova (Costs) [2011] FamCAFC 141; Bhatt & Acharya (Costs) [2017] FamCAFC 71.
The mother was entirely correct in raising concerns about the paternal grandmother’s conduct of the case. The many curious aspects of her application are noted above. The fact that the paternal grandmother was involved in the interviews from which Dr B at least in part formulated his recommendations, strongly suggests that she knew more about the substantive proceedings than she was prepared to acknowledge. Further, it suggests that she was aware, or should have been aware, of the recommendations made and the adverse impression formed about her. In these circumstances, the conduct by the paternal grandmother of the proceedings is, at the very least, disconcerting. Her application as formulated was doomed to fail. This factor strongly indicates in favour of the making of the costs order.
The paternal grandmother’s submission that her application was not wholly unsuccessful is, with respect, fanciful. She discontinued the proceedings that she initiated. The existence of Dr B’s report must have been at least part of the reason why she did so, although the Court acknowledges that her declining health may well have contributed. The filing of a Notice of Discontinuance must be reflective of lack of success. This factor strongly indicates in favour of the making of the costs order.
The only other relevant matter is in relation to offers made by each party to settle. The mother made an offer to settle on payment of costs in the sum of $7,700. The paternal grandmother contends that she made an offer of settlement to pay the mother’s costs in the sum of $4,500. Neither of these offers were accepted. As an order for costs is otherwise indicated, possibly even on an indemnity basis, the offer of settlement made does not contraindicate the making of the order.
INDEMNITY COSTS
It is well settled that when costs are ordered by this Court, such costs are payable on a party-party basis. It has been held that the Court should not lightly depart from the ordinary rule, and an order for indemnity costs should only be made in exceptional circumstances: Kohan & Kohan (1993) FLC 92-340.
The Court is satisfied that there are exceptional circumstances in this case. The paternal grandmother’s conduct of the proceedings, and indeed her conduct of the present application in relation to costs, plainly falls below the standard of expected diligence and disclosure to the Court. Putting aside what the Court has already described as some of the curious features of her application, the paternal grandmother’s failure to disclose her knowledge of the existence of the substantive proceedings, her participation in the expert report interviews, and then her actual or constructive knowledge of the contents of the report, are all factors that warrant the making of an order for indemnity costs.
The amount sought in the sum of $8,697.70 (inclusive of GST) is not inappropriate in this Court’s experience, with such costs to be inclusive of costs incurred in the present costs application.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 5 October 2021
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