PATSIOKIS & JOHNETTA

[2013] FamCA 326

FAMILY COURT OF AUSTRALIA

PATSIOKIS & JOHNETTA [2013] FamCA 326

FAMILY LAW – COSTS – where the father filed an Application for orders that the mother pay his costs of various aspects of the proceedings – where a costs order is justified on a party/party basis

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Patsiokis

RESPONDENT: Ms Johnetta

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 64 of 2009

DATE DELIVERED: 26 April 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stenmark SC

SOLICITOR FOR THE APPLICANT: KDB Holmes Solicitors

COUNSEL FOR THE RESPONDENT: Mr Blackah

SOLICITOR FOR THE RESPONDENT: Caroline Chung & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Connor

Orders

1. That, within 3 (three) months of the date of these orders, the father pay to the Director of the Legal Aid Commission of New South Wales the sum of $6,472.80.

2. That, within 3 (three) months of the date of agreement as to quantum or taxation, the mother pay the father’s costs on a party-party basis of the following applications:

   1.the mother’s Initiating Application filed on 30 September 2008 in respect of a proposed relocation of the child to the United Kingdom

   2.the father’s Application in a Case filed on 21 November 2008

   3.the father’s Application in a Case filed on 26 November 2008

   4.the mother’s Application in a Case filed on 28 April 2010

   5.the mother’s Application in a Case filed on 2 December 2010

   6.the application of the Independent Child’s Lawyer (“the ICL”) for an order that Dr P update his report.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Patsiokis & Johnetta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 64 of 2009

Mr Patsiokis

Applicant

And

Ms Johnetta

Respondent

REASONS FOR JUDGMENT

1. On 13 July 2012 I made orders and published reasons in a long-running dispute between Mr Patsiokis (“the father”) and Ms Johnetta (“the mother”) in relation to their daughter B, (“the child”).  That judgment should be read in conjunction with these reasons.

2. The child was born in March 2005 and is now eight years old.  Her parents have been embroiled in litigation in the Federal Magistrates Court, the Local Court of NSW and this Court since she was ten months of age.  They have also engaged in disputes over child support assessments. 

3. On 17 August 2012 the father filed an Application for orders that the mother pay his costs of various aspects of the proceedings.  On 27 November 2012 the mother filed a Response in which she sought orders that the father pay her costs of the present Application.

4. In the mother’s Response she sought further orders that would permit her to take the child to the United Kingdom in August/September 2013 and that a passport issue for her without the father’s consent.  These orders were included in the mother’s Response without leave and contrary to the usual practice within the Court.  I see no reason why the mother should be permitted to make an interim Application in this form, rather than resort to the procedures of the duty list.  I decline to entertain the mother’s Application for these two orders.

5. On 10 August 2012 the Independent Children’s Lawyer (“ICL”) filed an Application for an order that the father pay a sum of $6,472.80 to the Legal Aid Commission of NSW on account of her costs.  In her affidavit sworn on 10 August 2012 the ICL, Ms Anne Connor, swore that an order was made on 24 April 2009 which required each party to pay $6,553.00 on account of her costs within twelve weeks.  The mother paid this sum but the father failed to do so.  He has paid an unspecified amount to cover the fees of one of the single experts, Dr P, for a court attendance.  Ms Connor deposed that she took this payment into account in her assessment that the father owes $6,472.80 on account of the costs of the ICL.  I see no reason why the father should be excused from compliance with this order. 

The Mother’s Application in a Case filed on 30 July 2008

1. By this Application the mother sought to reopen proceedings in the Federal Magistrates Court, as well as orders that would permit her to relocate the child’s residence to the United Kingdom.  The Application to reopen the proceedings was heard on 15 August 2008 and dismissed on 12 September 2008.  On that date costs were reserved and the mother was directed to file any Application for orders to permit the proposed relocation by 30 September 2008.

2. I was offered no explanation as to why the father waited four and a half years to pursue his costs of this application.  I was not asked to read the judgment of the learned Federal Magistrate, nor taken to any of the evidence or submissions in those proceedings.  In circumstances where I have practically no knowledge of that litigation, I consider that it would be dangerous for me to make any order for costs in favour of the father.

The Mother’s Initiating Application filed on 30 September 2008

1. By this Application filed in the Federal Magistrates Court the mother sought, inter alia, orders which would permit her to relocate the child’s residence to the United Kingdom.  This Application was withdrawn on 21 April 2009, that being the first day of a trial before me.  The proceedings were transferred to this Court and included in the Magellan List on 19 December 2008, after the mother made allegations that the father sexually abused the child.

2. The mother retracted her allegations of sexual abuse on 21 April 2009.  With the assistance of the then single expert, Dr J, the mother’s therapist, Ms Q and the child’s psychologist, Ms O, the parties agreed to trial interim orders.  This arrangement provided for the child to continue to live with the mother and spend five nights per fortnight with the father on an unsupervised basis.  These interim orders provided for a review of the arrangements after approximately 12 months.  Ultimately, this Application and the father’s Response thereto were listed for final hearing before me on 20, 21, 22 and 23 March 2012.

The Father’s Application in a Case filed on 21 November 2008

1. This Application, which was filed in the Federal Magistrates Court, sought orders to the effect that the child’s name be placed on the Watch List and that the mother be restrained from removing her from the Commonwealth of Australia.  The Application was made in the context of the mother’s proposal to relocate the child’s residence to the United Kingdom and her allegations that she was sexually abused by the father. 

2. The written submissions on behalf of the father did not trace the history of this Application and I was obliged to have my Associate make the necessary enquiries.  The Application was returnable on 3 February 2009 and adjourned to 20 February 2009 before me.  On that date the parties consented to a series of orders, including the Watch List provision sought by the father in his interim Application filed on 21 November 2008.

The Father’s Application in a Case filed on 26 November 2008

1. By this interim Application the father effectively sought to reinstate the child’s time with him, after the mother alleged sexual abuse and unilaterally suspended her time with him.  This Application came before a Federal Magistrate on 19 December 2008 and this Court on 22 January 2009.

2. The father’s interim Application was listed for hearing before me on 20 February 2009.  On that date, the parties consented to interim orders which provided for the child to spend time with the father each alternate Wednesday night, every second weekend from Friday to Monday and for five nights during the Easter 2009 school holidays on a supervised basis.

The Mother’s Application in a Case filed on 28 April 2010

1. By this Application the mother sought that Dr T conduct a psychiatric examination of the father and prepare a report for use in her case.  I have a clear recollection that the mother’s counsel informed me that her legal representatives had taken the liberty of making an appointment with Dr T for this examination.  I clearly recall also that the ICL informed me that she knew nothing whatsoever about this proposal.

2. I was struck by the audacity of the mother and those who then advised her, in unilaterally making an appointment with Dr T to carry out a psychiatric examination of the father without his knowledge or consent nor any notice to the ICL.  The fact is that the interim orders made by consent on 24 April 2009 contemplated an updated report by the single expert who, at that stage, was Dr J.  I could see no reason why another psychiatrist should become involved in the proceedings, simply because the mother was dissatisfied with the opinions expressed by Dr J.

3. On 22 February 2011, Johnston J ordered that Dr P be appointed as single expert. Dr J elected to withdraw from the proceedings following complaints by the mother about his report and previous involvement with the parties and child.  Johnston J made this order while hearing a Contravention Application filed by the father.  His Honour found that the mother contravened orders for the child to spend time with the father and ordered that she pay his costs of those proceedings.

The Mother’s Application in a Case filed on 27 August 2010

1. By this Application the mother sought orders to enable her to travel overseas with the child for approximately twenty one days.  The first return date was 25 October 2010 and the Application was adjourned to 13 December 2010.  My intention was to deal with this issue on 13 December 2010 but, on 2 December 2010, the mother filed a further Application in a Case which was returnable on 7 April 2011.  In these circumstances, I adjourned the mother’s Application in a Case filed on 27 October 2010 to 7 April 2011.

The Mother’s Application in a Case filed on 2 December 2010

1. By this Application the mother sought to reduce the child’s time with the father; that the child’s therapist, Ms O give oral evidence in support of that proposal and that a birth certificate and passport be issued in the name of “[B Part of the father’s surname-the mother’s full surname]”. 

2. It was noted in my substantive judgment that the mother’s solicitor wrote an extraordinary letter to my Associate on 29 November 2010.  This letter contained emotively worded and unsubstantiated allegations as to the child’s supposed distress at being forced to spend time with the father.  One such allegation was to the effect that the father had been invited to discuss certain concerns held by school teachers but declined to do so.  It was established during the trial in March 2012 that this allegation was patently incorrect.

3. I remarked in my substantive judgment that it was entirely inappropriate for the mother’s legal representatives to forward such material to my chambers.  It seemed to me that they had become over-involved in her case and taken on her cause.  As I noted, another example of their over-involvement appeared to me to be their attendance at Ms O’s office to discuss Dr P’s report and jointly formulate questions to be put to him.

The ICL’s Application for an order that Dr P update his report

1. The mother opposed the ICL’s application that Dr P update his report for the purposes of the final hearing fixed for 20, 21, 22 and 23 March 2012.  I was thus obliged to list this appropriate and sensible application for argument on 20 February 2012.

2. As I stated in my judgment, counsel for the mother prepared written submissions in support of her opposition to this application.  Inter alia, these written submissions contained the following extraordinary propositions:

   5.It is submitted that requiring the child to submit to a further assessment by [Dr P] would constitute a neglect of her emotional needs.

   6.The child’s treating psychologist of an excess of 4 years, [Ms O], opposes it.

   7.[Ms O] believes that the child has no confidence that her wishes are likely to be respected, and is unlikely to tell [Dr P] what she really thinks.

   8.[Ms O’s] opinion should carry significant weight.

   9.[Dr P] has clearly formed a view about the mother that is adverse to her and cannot reasonably bring an unbiased mind to any further assessment.

   10.The mother has read [Dr P’s] first report and is unlikely to engage with him in any useful manner.

   11.No criticism of her could reasonably be made about that.

   12.The report could fairly be described as a character assassination of the mother, based upon [Dr P’s] assessment of her credit…

3. In my view, these submissions were a further illustration of over-identification by the mother’s solicitor and counsel with her cause.  I had no hesitation in acceding to the application of the ICL and Dr P duly prepared an updating report.

Approach To These Proceedings

1. As a general rule each party to proceedings under the Family Law Act 1975 (Cth) (“the Act”) bears his or her own costs: s 117(1). Section 117(2) provides that a court may make such an order for costs as it considers just in the exercise of its discretion. Section 117(2A) provides that a court must take into account certain matters in the exercise of its discretion whether to make an order for costs. This subsection provides as follows:

   (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.

Considerations

Section 117(2A) (a)

1. The applicant father swore an affidavit on 29 October 2012 in which he set out his financial circumstances.  He said that he receives a salary of $1,500 and rental income of $435 per week.  His fixed expenditure amounts to $3,799 but that figure includes a $3,200 credit card payment each week.  He claimed that he charges most of his expenses to a credit card and makes repayments from a National Australia Bank overdraft facility.

2. The father deposed that his assets have a total value of $1,144,102 and that his liabilities amount to $277,560, leaving a net figure of $866,542.  The father’s assets consist of his home at Suburb HH, an investment unit at Suburb JJ, shares, two motor vehicles, household contents and superannuation.  His liabilities include an alleged debt to his father in the sum of $173,500 on account of legal fees.

3. In written submissions on her behalf, the mother “objected to the statements of opinion of valuation contained in paragraphs 11.1 and 11.2 of the father’s affidavit”.  I was not sure why the position was different as to the contents of the mother’s Financial Statement verified by affidavit sworn on 26 November 2012. 

4. In the written submissions filed on her behalf, the mother took issue with the father’s assertion that he owes his father $173,500 on account of legal fees.  These submissions speculated that Mr Patsiokis Snr loaned the father $275,000 when he acquired his brother’s interest in the Suburb HH property on 18 June 2010.  I could identify no basis for this assertion and I was somewhat puzzled as to its relevance to the present proceedings.

5. The written submissions on behalf of the mother further speculated that Mr Patsiokis Snr made a gift to the father of his legal fees.  I could identify no basis for this assertion, which appeared to be nothing more than speculation.

6. The mother submitted that the father’s sworn evidence as to the alleged debt to his father should be rejected in the absence of a corroborating affidavit from Mr Patsiokis Snr.  I was unclear how this submission fitted with the assertions in the mother’s affidavits of 15 February 2013 and 5 April 2013 as to conversations with Mr Patsiokis Snr, concerning an alleged waiver of the father’s debt for legal fees.  Of course, this evidence emanating from the mother is pure hearsay and of no evidentiary value.

7. The mother’s written submissions referred to the necessity for her legal representatives to cross-examine the father as to his alleged financial circumstances.  I declined to make time available for cross-examination of the father in these proceedings.  The mother’s lawyer filed written submissions on 27 November 2012, in which it was suggested that there was a need for such cross-examination, but waited until April 2013 to make this request.  The mother’s lawyers only made a request for cross-examination of the father in response to a query from the Magellan Registrar, resulting from my anxiety at the drawn out nature of the present proceedings.

8. The father deposed that he has incurred legal fees of approximately $271,000 since the mother sought to reopen proceedings in the Federal Magistrates Court by an Application in a Case filed on 30 July 2008.  The father’s solicitor, Ms Laura Donnelly, deposed in an affidavit which she swore on 8 August 2012:

   5.On 24 January 2006 proceedings were commenced in the Local Court, Family Matters with the father’s application for final orders filed 24 January 2006.  Since that time, the father has paid approximately $372,500 on legal fees and associates costs including:

   5.1solicitors costs – E$237,000

   5.2barristers fees – E$108,000

   5.3expert’s fees – E$17,000

   5.4ICL fees - $9,000

   5.5filing fees, conduct money and transcripts - $1,500

   In her affidavit sworn on 29 October 2012, Ms Donnelly deposed that the father incurred approximately $101,500 of that sum to 30 July 2008.

9. As noted, the mother swore an affidavit verifying a Financial Statement on 26 November 2012.  She deposed to a total weekly income of $650 and expenditure of $1,710.  No explanation was proffered by or on behalf of the mother as to how she meets the shortfall, nor why she was able to accrue savings of $21,000 in these circumstances. 

10. In her affidavit of 26 November 2012, the mother deposed that she has spent $497,807.53 on legal fees.  She proffered no evidence as to the source of funds which she has applied to meet these costs.

11. The father annexed to his affidavit sworn on 15 April 2013 three decisions of Child Support Agency case officers.  On three occasions these officers found that the mother has “an unexercised earning capacity”.  On 27 October 2011 an officer found “…with no other information to consider, I must assume that affecting the Child Support Assessment is a major purpose of [the mother’s] decision to change her working hours”.

12. I am thus of the view that the evidence adduced by the mother leaves her financial circumstances in a state of uncertainty.  That choice will not operate to her advantage in this application.

Section 117(2A)(b)

1. Neither party is in receipt of a grant of legal aid.

Section 117(2A)(c) & (e)

1. It should be borne in mind that subsection 117(2A)(c) addresses “the conduct of the parties in relation to proceedings including, without limiting the generality of the foregoing…conduct in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters” (my emphasis).  This wording suggests to me that the issue here is primarily the parties’ carriage of the litigation. 

1. The mother’s Application filed on 28 April 2010 for a psychiatric assessment of the father by Dr T was wholly unsuccessful and, in my view, always doomed to failure.  It is clear that this Application was prompted by the fact that Dr J identified no psychiatric illness in the father and that the mother declined to accept his opinion. 

2. Dr J, as single expert psychiatrist, was well qualified to assess the mental health of both parents.  It seemed readily apparent to me that the mother made this Application in the hope that another expert would diagnose a mental illness or personality disorder in the father.  At that point she was determined to severely curtail the child’s time with him.  In my view, this Application was unwarranted and caused the father to incur unnecessary costs.  That Application also wasted the time of the court.

3. Similarly in my view, the mother’s opposition to the ICL’s application for an order that Dr P update his report was unwarranted and driven by her disagreement with his opinions and assessments.  In particular, it was obvious that the mother took strong issue with Dr P’s assessment of her personality and conduct. 

4. It seemed to me to be entirely proper that the ICL made this application.  I have referred above to the extraordinary submissions put by counsel for the mother in respect of the ICL’s application.  Dr P was the second single expert with whose opinions the mother took issue, she having previously prompted Dr J to withdraw from the proceedings.  I consider that her opposition to this entirely sensible and necessary application by the ICL was unwarranted and caused the father to incur unnecessary costs.  The court’s time was wasted by the mother’s opposition to this application.

5. By her Application in a Case filed on 27 August 2010 the mother sought orders to permit her to take the child to the United Kingdom for a period of up to twenty one days.  This issue was ultimately not pursued by the mother.  It should be remembered that she filed the Application in a Case on 2 December 2010, which caused the interim hearing date of 13 December 2010 to be vacated.  It seems to me that this Application on the part of the mother put the father to unnecessary costs.

6. The father’s Application filed on 26 November 2008 effectively sought to reinstate the orders of 12 September 2008, which provided for the child to spend time with him upon the expiration of an order pursuant to s 68R made by the Local Court.  This Application sought an alternative interim order that the child’s time with the father be supervised by his then partner in the event that JIRT had not finalised its investigations. 

7. The Local Court discharged the order pursuant to s 68R on 11 December 2008.  Notwithstanding this fact and the reasonableness of the father’s Application filed on 26 November 2008, the mother completely obstructed the child’s time with him until 20 February 2009.  Ultimately, my findings were to the effect that the mother had no reasonable basis for her actions on any of the occasions when she unilaterally terminated the child’s time with the father.  It seems to me that the father should not have been required to resort to this Application to reinstate the child’s time with him and he was thus put to unnecessary costs.

8. In my view, it is no answer for the mother to claim that the child’s time with the father was reinstated only on a supervised basis on 20 February 2009.  Only two months after these interim orders were made she resiled from and abandoned her allegations of sexual abuse.  At all times, the father’s alternative application was for interim orders that the child spend time with him on a supervised basis.

9. The mother’s Application in a Case filed on 30 July 2008 sought leave to reopen her case in the Federal Magistrates Court and for orders to enable her to relocate the child’s residence to the United Kingdom.  She was entirely unsuccessful in her Application to reopen her case.  As indicated above, however, in my view the father should have pursued his reserved costs of that Application years ago and in the Federal Magistrates Court.

10. I take a different view of that part of this Application which dealt with the proposed relocation and the Initiating Application to that effect filed by the mother on 30 September 2008.  The mother pursued this Application until the first day of the April 2009 trial.  It was only on 20 April 2009 that she abandoned the relocation application.  It thus seems to me that the father was put to unnecessary costs between 30 July 2008 and 20 April 2009 in respect of the relocation application.

11. In terms of the substantive proceedings neither party achieved orders as sought in his and her respective application and response.  The mother persisted with her proposal that the child should spend day periods only with the father.  He maintained his application for primary residence but, in final submissions, his counsel sensibly and reasonably put a “fall back” position whereby the child would continue to live with the mother and spend five nights per fortnight in his care.  Ultimately, my orders were to the effect that the child live with the mother and spend time with the father on three nights per fortnight; special occasions and during school holidays. 

12. The mother was wholly unsuccessful in her Application that she have sole parental responsibility, I ordered that the parties have equal shared parental responsibility.  It seems to me to be impossible, however, to isolate any particular tranches of the trial which were devoted to that issue alone as opposed to matters of residence and time with the other parent.

Section 117(2A)(d)

1. As indicated above, the father’s Application of 26 November 2008 was necessitated largely by the mother’s unilateral suspension of the child’s time with him.  The Local Court’s order pursuant to section 68R was discharged on 11 December 2008.  Similarly, the father’s Application for Contravention in late 2010 was necessitated by the mother’s failure to comply with the orders of 24 April 2009 but the costs of those proceedings have been dealt with by Johnston J. 

Section 117(2A)(f)

1. The written submissions on behalf of the mother stated:

   20.It was only during the course of the hearing in March 2012 that the father abandoned his application for a change in residence for the child, notwithstanding that [Dr P] had not recommended it in either of his reports.

   In my view, this statement conveys an implication that the father at no stage made a proposal that the child continue to live with the mother until final submissions by his counsel at the end of the March 2012 trial.  That proposition is simply incorrect, as is evident from written offers of settlement made by the father’s solicitor on 21 July 2011 and 20 March 2012.  That fact must have been known to the author of the written submissions on behalf of the mother in these proceedings.

2. The father’s two offers of settlement were set out in letters annexed to the affidavit of Ms Donnelly sworn on 8 August 2012.  Both of these proposals were to the effect that the child live with the mother and spend five nights per fortnight, special occasions and school holiday time with the father.  The second letter of offer invited the mother to make suggestions as to the structure of the proposed five nights per fortnight arrangement. 

3. The written submissions on behalf of the father stated that the mother made no response whatsoever to either of these offers.  The written submissions on behalf of the mother made no suggestion that there was any such response.  It is thus apparent that the mother declined all of the father’s overtures to resolve the matter by agreement.

Section 117(2A)(g)

1. The mother relied on an allegation that the paternal grandfather, Mr Patsiokis Snr, informed her that he has paid certain legal costs of the father but has no wish to pursue her for this money.  In her affidavit sworn on 15 February 2013 the mother deposed that the paternal grandfather told her that he had paid an unspecified amount less than $173,500 on account of the father’s legal fees.  The mother annexed to her affidavit copies of two letters to her which she alleged were in the handwriting of the paternal grandfather.  The mother relied on a further affidavit which she swore on 5 April 2013 in which she deposed to further conversations with the paternal grandfather in regard to the father’s legal costs. 

2. Obviously, this evidence of the mother was merely hearsay.  As noted above, the written submissions on behalf of the mother were critical of the father’s failure to adduce evidence from the paternal grandfather.  I am at a loss to understand why that criticism should be regarded as valid in respect of the father and not herself.

Conclusion

1. It seems to me that the mother should pay the father’s costs of or incidental to the following applications:

   1.the mother’s Initiating Application filed on 30 September 2008 in respect of a proposed relocation of the child to the United Kingdom

   2.the father’s Application in a Case filed on 21 November 2008

   3.the father’s Application in a Case filed on 26 November 2008

   4.the mother’s Application in a Case filed on 28 April 2010

   5.the mother’s Application in a Case filed on 2 December 2010

   6.the application of the ICL for an order that Dr P update his report.

   I have indicated above my reasons for reaching this conclusion.

2. I am not prepared to order that the mother pay the father’s costs of the substantive proceedings because the outcome was at significant variance to the proposals of both parties.  I include in this observation the two offers of settlement made by the father, which proposed five rather than three nights per fortnight.

3. I am not prepared to devote incalculable hours of judicial time to trawling through solicitors’ bills and formulating an amount of costs in respect of each of the above applications.  My orders will be that the mother pay these costs “as agreed or taxed”.  I will allow the mother three (3) months to pay these costs of the father and the amount due to the ICL.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 26 April 2013.

Associate:     

Date:              26 April 2013