PECKS & PECKS (No.2)
[2021] FCCA 21
•14 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PECKS & PECKS (No.2) | [2021] FCCA 21 |
| Catchwords: FAMILY LAW – Costs – parenting application. |
| Legislation: Family Law Act 1975 (Cth), ss.117(2A), (a), (c), (d), (e) |
| Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants (1988) 81 ALR 397; [1988] FCA 202 Medlon & Medlon (No 6) (2015) 54 Fam LR 1; (2015) FLC ¶93-664; [2015] FamCAFC 157 |
| Applicant: | MR PECKS |
| Respondent: | MS PECKS |
| File Number: | MLC 10463 of 2012 |
| Judgment of: | Judge Riley |
| Hearing dates: | 15 September and 14 October 2020 |
| Date of last submission: | 15 October 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 14 January 2021 |
REPRESENTATION
| Counsel for the applicant: | Mr Lovering |
| Solicitors for the applicant: | Lewis Holdway Lawyers |
| Advocate for the respondent: | Mr Irwin |
| Solicitors for the respondent: | Irwin & Irwin Law |
| Advocate for the independent children’s lawyer: | In person |
| Independent children’s lawyer: | Ms Augustin |
ORDERS
The mother pay $40,000 towards the father’s costs of the parenting proceeding by four instalments of $10,000 which are to be paid on or before:
(a)30 June 2022;
(b)30 June 2023;
(c)30 June 2024; and
(d)30 June 2025.
All extant applications be otherwise dismissed.
NOTATIONS
(A)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Pecks & Pecks (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10463 of 2012
| MR PECKS |
Applicant
And
| MS PECKS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for the costs of a parenting proceeding and the costs of the subsequent costs application. Judgment in the substantive application was given in Pecks & Pecks [2020] FCCA 2511 on 8 September 2020. The father applied for a costs order against the mother on an indemnity basis, and, failing that, on a solicitor/client basis and, failing that, on a party/party basis.
The mother was almost entirely unsuccessful in the substantive proceeding. Orders were made for the parties’ child, X, to live with his father and spend no time with his mother. Those orders were in accordance with:
a.the recommendations of the family consultant;
b.the submissions of the independent children’s lawyer; and
c.X’s views.
X was 15 years old at the time of the trial. Between the ages of 13 and 15 years old, when X was living with his father, he had consistently expressed the wish not to spend any time with his mother. Those wishes were expressed in the context of the mother beating X repeatedly with a wooden ladle on the day before his 13th birthday.
The father and mother reached an agreement on all but three matters the day before the trial was scheduled to commence. However, the independent children’s lawyer did not agree with aspects of the agreement reached between the parents. Consequently, the trial proceeded. For the purposes of the trial, the mother reverted to her original position of seeking orders that X live with her.
Material relied upon
The father said during the costs hearing on 14 October 2020 that he relied on:
a.the unsworn affidavit of Natalie Jayne Fielding filed on 14 September 2020;
b.the unsworn affidavit of Natalie Jayne Fielding filed on 22 September 2020;
c.the unsworn affidavit of Natalie Jayne Fielding filed 13 October 2020;
d.the amended application in a case filed on 13 October 2020; and
e.the unsworn affidavit of the father filed on 13 October 2020.
The father filed a further amended application in a case on 15 October 2020, together with a further affidavit of Natalie Jayne Fielding.
The mother said during the costs hearing that she relied on:
a.her affidavit sworn on 28 September 2020 and filed on 28 September 2020; and
b.the affidavit of Jonathan William Robert Irwin sworn on 29 September 2020 and filed on 29 September 2020.
The independent children’s lawyer said during the costs hearing that she relied on her unsworn affidavit filed on 9 October 2020.
The father’s proposed costs orders
The costs orders proposed by the father in his further amended application in a case filed on 15 October 2020 were as follows:
Costs up to the Judgment on 8 September 2020
1.That the Respondent pay the Applicant’s costs incurred since 16 September 2019 to 8 September 2020 in the sum of $80,648.16 to the trust Account of Lewis Holdway Lawyers.
2.That the Respondent pay the interest owed by the Applicant to the Applicant’s lawyers in the sum of $1,490.26 to the trust Account of Lewis Holdway Lawyers.
3.That the Respondent pay the cost of the courier of $79.00 to the trust account of Lewis Holdway Lawyers.
4.In the alternative to paragraphs 1 and 2 hereof, the Respondent pay the Applicant’s costs on a lawyer/client basis from 16 September 2019 to 8 September 2020 together with all interest thereon.
5.In the alternative to paragraphs 1, 2, 3 and 4 hereof, the Respondent pay the Applicant’s costs on a party/party basis from 17 January 2018 to 8 September 2020 in the sum of $55,688.03 together with all interest thereon.
6.In the alternative to paragraphs 1, 2, 3, 4 and 5 hereof, the Respondent pay the Applicant’s costs on a party/party basis from 16 September 2019 to 8 September 2020 in the sum of $44,132.03 together with all interest thereon.
7.In the alternative to paragraphs 1, 2, 3, 4, 5 and 6 hereof, the Respondent pay the Applicant’s costs on an indemnity basis from 3 June 2020 to 26 June 2020 of $20,345.65.
8.In the alternative to paragraphs 1, 2, 3, 4, 5, 6 and 7 hereof, the Respondent pay the Applicant’s costs on a party/ party basis from 3 June 2020 to 26 June 2020 of $9,259 in legal fees.
9.That until such time as the Respondent has fully satisfied any Costs Orders made in favour the Applicant, the Respondent be restrained by injunction from withdrawing in excess of $200 per week from any account held by her with any bank or financial institution, except for the purpose of making payments pursuant to Costs Orders in favour of the Applicant.
Costs of the Cost Application – 9 September 2020 to 14 October 2020
10.That the Respondent pay the Applicant’s costs of the filing and preparation of this Application from 9 September 2020 to 14 October 2020 in the sum of $21,500 to the trust account of Lewis Holdway Lawyers.
11.In the alternative to Order 11, that the Respondent pay the Applicant’s costs of this on a party/party basis from 9 September 2020 to 14 October 2020 in the sum of $15,077.18 to the trust Account of Lewis Holdway Lawyers.
To explain some of those dates, the proceeding was commenced by the father on 17 January 2018. On 16 September 2019, one of many offers of settlement in writing made by the father was not accepted. Judgment was handed down on 8 September 2020. The hearing of the costs application concluded on 14 October 2020.
The mother’s proposal
The mother proposed that each party should bear their own costs of the substantive proceeding and the costs arguments.
The ICL’s proposal
The independent children’s lawyer did not seek costs herself. As I understood it, she neither supported nor opposed the father’s costs application.
Legislation
Subsection 117(2A) of the Family Law Act 1975 (“the Act”) relevantly provides that:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(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), (5) and (6) 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.
(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.
Authorities
The principles relating to indemnity costs are well-known. In Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561, Sheppard J said:
24.It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:
1.The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg a government agency or statutory authority.
2.The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. … In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3.This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. …
4.In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". …
5.Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud …; evidence of particular misconduct that causes loss of time to the Court and to other parties …; the fact that the proceedings were commenced or continued for some ulterior motive … or in wilful disregard of known facts or clearly established law …; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions …; an imprudent refusal of an offer to compromise … and an award of costs on an indemnity basis against a contemnor …. Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6.It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
In Medlon & Medlon (No 6) (2015) 54 Fam LR 1; (2015) FLC ¶93-664; [2015] FamCAFC 157, Strickland J cited Colgate-Palmolive and made clear that the principles enunciated in that case can apply in an appropriate case in the family law jurisdiction. However, his Honour also said in paragraph 26:
In Limousin & Limousin (Costs) [2007] FamCA 1178; [2007] 38 FamLR 478, the Court reviewed the authorities in relation to indemnity costs. Reference was there made to the judgment of the Full Court in In the Marriage of L and C L Kohan (1992) 16 Fam LR 245 ; (1993) FLC 92-340. It was recorded at 79,614 (citations omitted) in which it was said that:
The intent of s 117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the court considers just. As we have pointed out, the court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O 38 r 2, the provisions of O 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O 38 r 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Hobartville Stud v Union Insurance Co (1991) 25 NSWLR 358 at 368–70.
Indemnity costs orders are still an exception in this and other jurisdictions.
The s.117(2A) considerations
16.Subsection 45A(6), s.70NFB(1), s.117AA and s.117AC of the Act are not relevant in this proceeding. Consequently, before deciding whether to make a costs order in this case, and, if so, what costs order, the court must consider the various matters set out in s.117(2A) of the Act.
a. the financial circumstances of each of the parties
Both parties said that they are in a poor financial position, largely because of the costs of the present litigation. However, neither party substantiated their claims with much in the way of documentation. Instead, they spent most of their time commenting on the other party’s assertions.
In her affidavit dated 14 September 2020, Ms Fielding, the father’s solicitor, did not address the father’s financial circumstances, except in so far as she said that the father owed her firm amounts totaling about $80,000.
In her affidavit dated 22 September 2020, Ms Fielding, said that, to fund the legal proceedings, the father had:
a.borrowed undisclosed sums from family and friends;
b.taken out a personal loan in an undisclosed sum; and
c.entered into a payment arrangement on unspecified terms with his solicitors.
Ms Fielding also said in that affidavit that the father owed her firm amounts totaling about $88,000.
In her affidavit dated 13 October 2020, Ms Fielding did not address the father’s financial circumstances.
In oral submissions on 14 October 2020, the father’s counsel said without objection that he was instructed that:
a.the father earned $107,000 gross and $70,000 after tax “last year” (it was unclear whether this meant the 2019 calendar year or the 2019/2020 financial year);
b.he rents his accommodation;
c.he has no other assets; and
d.he has three dependents, being X, the father’s wife and her child.
The father’s counsel also announced at the end of his oral costs submissions that he relied on the father’s affidavit dated 13 October 2020 and filed on 14 October 2020. In that affidavit, the father relevantly:
a.denied the wife’s assertions that:
i)he owned properties overseas;
ii)had investments; and
iii)received funds from Religious organisations; and
b.conceded that the mother had paid him child support since January 2018, but said that she was $773.46 in arrears, and was required to pay him $128.92 per month. (These figures were substantiated with documents).
The mother said in her affidavit of 28 September 2020 that:
a.she has been unemployed since March 2020 due to COVID-19 and, as at 28 September 2020, was on Job Seeker benefits of $1,213 per fortnight (or $31,538 per year);
b.she does not own a house or have assets at her disposal;
c.when employed, she works as a Professional on a contract basis;
d.between contracts, she is unemployed;
e.COVID-19 has reduced the opportunities for people such as herself; and
f.her earnings in 2017 were unusually high, and she has not had any similarly well-remunerated contracts since then.
The mother exhibited to that affidavit:
a.her notice of income tax assessment for the year ended 30 June 2018, showing that she had a taxable income in that year of $170,418;
b.her notice of income tax assessment for the year ended 30 June 2019, showing that she had a taxable income in that year of $71,789; and
c.a Centrelink statement indicating that:
i)she was paid about $1,200 on 2 September 2020 and would be paid about the same amount on 18 September 2020;
ii)the payments included JobSeeker;
iii)there was about $50 per fortnight deducted for child support; and
iv)she had cash, household effects and vehicles worth about $2,300.
The mother also made various unsubstantiated assertions in her affidavit about the husband’s financial position, most of which the husband denied. In the absence of substantiating evidence, I am unable to give the mother’s assertions any significant weight.
In his affidavit, Mr Irwin, the mother’s solicitor, said that he considers the mother to be impecunious. He said that she has not paid his firm or her counsel for the legal proceedings, and is on a payment plan of $100 per fortnight. The total amount of the mother’s debt for the legal proceedings was not specified.
In my view, the father is presently in a somewhat better financial position than the mother, as he has regular, ongoing employment. If the mother were able to secure employment, she may earn more than the father, as she has at times in the past. She herself said in her evidence that she expects to return to employment in the future. That seems to me to be a reasonable expectation. Neither party has any assets of significance.
b. whether any party is in receipt of legal aid
The mother was in receipt of legal aid briefly early in the proceedings, until it was discovered how much she had been earning. Apart from that, neither party was in receipt of legal aid. The mother’s brief period of assistance through legal aid does not warrant any significant weight being given to it.
c. the conduct of the parties to the proceedings
The conduct of the parties to the proceedings in relation to the proceedings was unremarkable with some exceptions.
Firstly, X wished to attend a school exchange program in Country E in 2018. An airport watch list order, made on 17 October 2013, remained in force. The mother had X’s passport. The mother was difficult and obstructive about X’s proposed trip until, on 4 October 2018, 10 days before X was due to depart, she signed a minute of proposed consent orders to permit him to go on the trip. The father claimed that the mother’s delay had required him to bring an application to the court. A letter was sent to chambers but no formal application was filed.
Secondly, the mother, by her then solicitors, Knight Family Lawyers, emailed the court on or about 15 November 2019 asking for the matter to be listed for mention because the matter had “significantly slowed”. The matter came on for mention on 6 December 2019. The mother was represented by counsel. The mother did not attend court but remained in Adelaide. Her barrister was not able to communicate with her solicitor. The father put forward a settlement proposal, but the mother’s counsel told the court that he advised her not to agree to anything as they were only able to communicate by telephone. The listing was pointless, and could not achieve anything in the mother’s absence. On the father’s application, an order was made for the mother to pay the father’s costs of the mention, fixed in the sum of $1,813, which was less than scale.
Thirdly, the father and the independent children’s lawyer sought an order that the mother provide to the father X’s identity documents, including his birth certificate, Australian citizenship certificate and immigration paperwork. On the first day of the trial, while the court was discussing with the parties what orders they would consent to, the mother through her counsel indicated to the court that she was willing to provide the documents forthwith. The father through his counsel indicated to the court that he would organise and pay for a courier to collect them from the mother’s home in Adelaide that afternoon. The courier arrived while the court was in session, but the mother did not provide the documents to the courier and did not tell the court that she had not done so. On the second day of trial, after some discussion, the mother apologised and said she would arrange for another courier to deliver the documents to the father. That occurred.
Fourthly, although the matter almost resolved as between the mother and the father the day before the final hearing, the mother did not run a reasonable case at trial. Instead of only running the points that she was genuinely not prepared to agree to, the mother decided to run everything, including seeking an order that X live with her. Seeking such an order was unreasonable, and added significantly to the time and the costs of the trial.
Fifthly, the mother and father reached agreement on all but three issues the day before the trial, which it might have been possible to determine by submissions. However, the agreement was not accepted by the independent children’s lawyer. It was therefore necessary for the trial to run. This was a topic of considerable comment by the mother’s counsel, Mr McLeod, who clearly exerted a great deal of pressure on the independent children’s lawyer, and invited the court to pressure her as well. However, as discussed below, I do not consider that the independent children’s lawyer should be criticised for her conduct of this proceeding.
d. failure to comply with previous orders
The proceeding was not necessitated by the failure of a party to comply with previous orders of the court.
e. whether any party has been wholly unsuccessful
The mother was almost entirely unsuccessful in the parenting proceeding.
f. offers in writing to settle the proceedings
Offers to settle are relevant to costs applications especially if they show that, if a particular offer had been accepted, further proceedings and the trial need not have occurred at all. Consequently, it is necessary to start with the orders that the court ultimately made, which in this case were as follows:
THE COURT ORDERS BY CONSENT THAT:
(1)The matter be adjourned to 15 September 2020 at 10am for hearing of the costs application.
(2)All previous parenting orders be discharged.
THE COURT ORDERS THAT:
(3)The father have sole parental responsibility for X born in 2004 (“X”).
(4)X live with his father.
(5)Except as otherwise stated in these orders, X spend time and communicate with his mother at his request, and such time and communication be at X’s instigation only.
(6)In the event that X wishes to travel to visit his mother, and if the parents have agreed in writing for X to spend time with his mother, the costs of X’s air travel be borne solely by his mother and X travel unaccompanied unless the father otherwise deems fit.
(7)The mother be restrained from contacting X directly through email or on his mobile telephone.
(8)The mother be at liberty to send to X letters, cards and/or presents from time to time and on special occasions such as X’s birthday, Christmas and Easter at PO Box B, Suburb C, Victoria.
(9)In the event that the father’s post office box address changes, the father provide to the mother, within seven days of the change, details of the new PO Box address.
(10)The father authorise X’s school to provide to the mother copies of X’s school reports, applications for school photographs and school newsletters.
(11)The father inform the mother if X changes school.
(12)The mother be restrained from attending X’s school, or contacting any of his teachers or other school personnel, except with the express written consent of the father.
THE COURT DIRECTS THAT:
(13)The registry release X’s existing passport to his father.
THE COURT ORDERS THAT:
(14)X’s existing passport and any new passport obtained for X be retained by his father.
(15)The father be authorised and permitted to apply for and receive an Australian passport for X without first obtaining the written consent of the mother.
(16)X be permitted to leave the Commonwealth of Australia without the permission of his mother.
(17)If the father plans to travel overseas with X, or X is planning to travel overseas without his father, the father provide a copy of X’s itinerary to his mother at least 14 days before the proposed travel.
(18)The mother be restrained from interfering in X’s travel plans, or attending the airport where he will arrive at or depart from for three hours either side of his scheduled departure and arrival.
(19)The father encourage and facilitate X attending upon a clinical psychologist for counselling regarding:
(a)the violence perpetrated by his mother against him; and
(b)his fractured relationship with his mother.
(20)The independent children’s lawyer explain these orders to X.
(21)The appointment of independent children’s lawyer be discharged in 14 days.
THE COURT ORDERS BY CONSENT THAT:
(22)Each parent facilitate any request by X to send letters, cards and/or presents to the other parent from time to time and on special occasions, such as the mother’s birthday, Mother’s Day, Christmas and Easter.
(23)Orders 2, 3 and 4 made on 21 November 2012 and orders 10 and 12 made on 18 October 2013, being the airport watch list orders, be discharged.
(24)The parents notify each other within 24 hours of any changes to their mobile telephone numbers.
(25)The parents notify each other as soon as possible of X having any emergency or being hospitalised.
(26)Each parent be restrained from attending the home address of the other parent, without a prior agreement in writing between the parents.
(27)While denying the necessity for the same, each parent be restrained from denigrating or insulting the other or members of the other’s family in the presence or hearing of X.
(28)While denying the necessity for the same, each parent remove any Facebook or social media posts made by them that breach s.121 of the Family Law Act 1975.
(29)The father forthwith do all things in his power to ensure that the mother has access to COMPASS in respect of X.
THE COURT ORDERS THAT:
(30)The mother pay the father’s costs of the proceeding on 6 December 2019, fixed in the sum of $1,813.
Prior to the trial commencing, there were numerous offers to settle.
The mother made an offer to settle on 15 April 2019. A copy of this offer was not provided to the court. However, from the response, it appears that the mother proposed that:
a.there be equal shared parental responsibility;
b.the mother be at liberty to contact X’s school and medical professionals; and
c.the father pay for X’s travel to spend time with his mother.
The father formally rejected that offer on 2 September 2019 and, on the same date, made the following counter offer, which was open for acceptance until 16 September 2019:
1.That all previous parenting orders be discharged. (This was order 2 of the final orders.)
2.That the Father have sole parental responsibility for the child X born in 2004 (“the child”). (This was order 3 of the final orders.)
3.That the child live with the Father. (This was order 4 of the final orders.)
4.That the child spends time with the Mother at his request, and at times agreed in writing between the parties. (This was substantially order 5 of the final orders.)
5.For the purposes of the child spending time with the Mother pursuant to Order 4, that the Father be prohibited from withholding the child’s time with the Mother, and the Father make the child available to spend time with the Mother at all reasonable times. (This was more in the mother’s favour than orders 5 and 6 of the final orders.)
6.That the child be permitted to contact the Mother via Snapchat, WhatsApp, Facebook, Instagram, Twitter and other social media platforms at all reasonable times. (This was more in the mother’s favour than orders 7 and 8 of the final orders.)
7.That the Father facilitate any request of the child to send letters, cards and/or presents to the Mother from time to time and on special occasions such as the Mother’s birthday, Mother’s Day, Christmas, Easter and the like. (This was substantially order 22 of the final orders, which was made by consent.)
8.That the Mother be at liberty to send the child letters, cards and/or presents from time to time and on special occasions such as the child’s birthday, Christmas and Easter. (This was more in the mother’s favour than order 8 of the final orders, as the final orders confined the mother to sending cards and so on to a post office box.)
9.That the Father provides the mother, via email, with information relating to the child’s progress and development, including but not limited to copies of his school reports, academic certificates or awards and school photo’s.(sic) (This was more in the mother’s favour than order 10 of the final orders, which required the father to authorise X’s school to provide documents directly to the mother.)
10.That the Father provides the Mother, via email, with details of all medical issues requiring hospitalisation or specialist medical treatment, other than treatment by a General Medical Practitioner. (This was more in the mother’s favour than order 25 of the final orders, which was made by consent, and only required the father to notify the mother of hospitalisations and emergencies.)
11.Without admitting the necessity for the same, that the Mother be restrained from communicating with, and obtaining any information directly from, the child’s school, general practitioner, counsellor or other health professional involved with the child in respect of his physical health and welfare. (This was more in the mother’s favour than order 12 of the final orders, which only concerned her contacting X’s school.)
12.That the Airport Watch List Order made by the Federal Circuit Court of Australia at Melbourne made on 21 November 2012 at paragraphs 2, 3 and 4 and Orders dated 18 October 2013 at paragraphs 10 and 12 be discharged. (This was substantially the same as order 23 of the final orders, which was made by consent.)
13.That the child’s passport held by the Federal Circuit Court Registry be provided to the Father and to be held by the Father into the future. (This was substantially the same as orders 13 and 14 of the final orders.)
14.That in the event that the Father plans to travel with the child, or the child is planning to travel overseas without the Father, the Father is to provide a copy of the itinerary for travel to the Mother within 14 days of the proposed travel for her reference only, noting that the Mother cannot interfere in the child’s travel plans. (This was substantially the same as orders 17 and 18 of the final orders.)
15.In the event that the child wishes to travel to visit the Mother, and pursuant to paragraph 6 the parties have agreed in writing for the child to spend time with the Mother, all costs of air travel of the child are to be borne solely by the Mother and the child is to travel unaccompanied. (This was substantially the same as order 6 of the final orders.)
16.That the parent booking the child’s travel in accordance with Order 16, is to provide a copy of the itinerary and any e-ticket to the other parent not less than seven (30) days prior to the travel. (There was no equivalent of this proposed order in the final orders, but it is of minimal significance.)
17.With the exception of the child’s mobile telephone number, which will be only be disclosed to the Mother by the child, at the child’s request, any change of residential address or other contact details including email addresses and telephone numbers are to be notified to the other party within 24 hours. (This was more in the mother’s favour than orders 9 and 24 of the final orders, which only required the father to notify the mother of a change to his post office box number and mobile telephone number.)
18.That, while denying the necessity for the same, each parent be restrained from denigrating or insulting the other parent or member of that parent’s family or speaking in derogatory terms about the other parent in the presence or hearing of the child. (This was substantially the same as order 27 of the final orders, which was made by consent.)
19.That within 14 days of the date of these Orders, that the Mother provide to the Father the child’s identity documents, including his Birth Certificate and Australian Citizenship Certificate, by way of registered post to be sent to the Father’s Lawyers. (These documents were provided by the mother to father prior to final orders being made, although the mother was initially obstructive, as discussed above.)
20.That pursuant to sections 62B and 65DA of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders. (This proposed order is substantially the same as order 31 of the final orders.)
In addition to the final orders noted in the previous paragraph, the final orders included the following matters which were not expressly addressed in the proposal of 2 September 2019:
11.The father inform the mother if X changes school. (This is arguably encompassed by order 9.)
…
15.The father be authorised and permitted to apply for and receive an Australian passport for X without first obtaining the written consent of the mother. (This was less in the mother’s favour than the proposal of 2 September 2019.)
16.X be permitted to leave the Commonwealth of Australia without the permission of his mother. (This was less in the mother’s favour than the proposal of 2 September 2019.)
…
19.The father encourage and facilitate X attending upon a clinical psychologist for counselling regarding:
a.the violence perpetrated by his mother against him; and
b.his fractured relationship with his mother.
(The mother at the final hearing was particularly adamant that there be no order that X attend counselling for the violence she had perpetrated against him.)
20.The independent children’s lawyer explain these orders to X. (This is not an order that could reasonably be supposed to have been an impediment to settlement.)
21.The appointment of independent children’s lawyer be discharged in 14 days. (This is not an order that could reasonably be supposed to have been an impediment to settlement.)
…
26.Each parent be restrained from attending the home address of the other parent, without a prior agreement in writing between the parents. (This was less in the mother’s favour than the proposal of 2 September 2019. However, the order was ultimately made by consent. It is reasonable to consider that the mother would have agreed to this order if asked on 2 September 2019.)
…
28.While denying the necessity for the same, each parent remove any Facebook or social media posts made by them that breach s.121 of the Family Law Act 1975. (This was less in the mother’s favour than the proposal of 2 September 2019. However, the order was ultimately made by consent. It is reasonable to consider that the mother would have agreed to this order if asked on 2 September 2019.)
29.The father forthwith do all things in his power to ensure that the mother has access to COMPASS in respect of X. (This order was substantially in the mother’s favour. It was a substantial sticking point during the trial, with the father being under the misapprehension that access to COMPASS would give the mother access to X’s residential address. When the father made further enquiries, he discovered his error, and agreed to the order in the last few minutes of the hearing.)
30.The mother pay the father’s costs of the proceeding on 6 December 2019, fixed in the sum of $1,813. (This was not part of the proposal on 2 September 2019, because the court event had not yet occurred on that date.)
The mother’s solicitor did not reply to the offer made by the father on 2 September 2019, but did later ask for the matter to be listed for mention, on the basis that the proceeding had “significantly slowed”. The mention was listed for 6 December 2019. In the meantime, on 15 November 2019 the father’s solicitor sent the mother’s solicitor another copy of the offer made on 2 September 2019. The mother’s solicitor did not reply. The father’s solicitor sent another copy of the offer of 2 September 2019 on 2 December 2019. The mother’s solicitor still did not reply. The mention of 6 December 2019 is described above. The mother’s solicitor still did not respond to the offer of 2 September 2019.
By letter dated 14 February 2020, the independent children’s lawyer wrote to the other parties advising them that she supported the father’s proposal dated 2 September 2019, even though, by then, it had technically lapsed.
In any event, on 14 February 2020, the parties could have resolved the matter on a basis that was more favourable to the mother than the final orders that were actually made, with the exception of the COMPASS order. However, as the father eventually agreed to that order, it is reasonable to suppose that, if proper enquiries had been made in February 2020, the COMPASS order could have been made by consent in February 2020 as well.
However, on 14 February 2020 at 5.03pm, the father’s solicitor sent the mother and the independent children’s lawyer another offer. That meant that, strictly speaking, the father’s offer of 2 September 2020 was overtaken by the father’s offer of 14 February 2020 and the offer of 2 September 2020 ceased to be an offer that the mother could accept.
The father’s offer of 14 February 2020 was the same as his offer of 2 September 2019, except that the time for the provision of X’s identity documents in proposed order 19 was 48 hours in the 14 February 2020 offer rather than 14 days in the 2 September 2019 offer, and sought additional identity documents, including X's immigration paperwork and graduation certificates.
The mother did not accept the father’s offer of 14 February 2020. She provided a counter offer on 3 March 2020. The mother’s offer adopted many of the orders proposed by the father on 14 February 2020, namely, proposed orders 1, 3, 4, 5, 6, 7, 8, 16, 18 and 20. However:
a.instead of the father’s proposed order 2, the mother proposed that the parents have equal shared parental responsibility;
b.the mother proposed deleting the father’s proposed order 11, which would have restrained the mother from contacting X’s school;
c.in relation to the father's proposed order 9, the mother proposed that she also be provided with information relating to new schooling arrangements for X made without her prior consent;
d.in relation to the father's proposed order 10, which provided for the mother to be provided with details off all medical issues requiring hospitalisation or specialist medical treatment, the mother proposed that she also be provided with details of treatment by a general medical practitioner;
e.the mother proposed that the airport watch list order remain ongoing, rather than be discharged as proposed in the father’s proposed order 12;
f.instead of the father’s proposed order 13, which would have required X’s passport to be held by him, the mother proposed that X’s passport be retained in the court registry;
g.in relation to the father’s proposed order 14, the mother wanted the order to encompass either parent travelling with X, rather than just the father;
h.the mother proposed deleting the father’s proposed order 15, which would have required her to bear the costs of X’s travel to visit her;
i.in relation to the father’s proposed order 17, the mother proposed that she also be notified of any change to X’s mobile telephone number; and
j.the mother proposed deleting the father’s proposed order 19, which required her to provide X’s identity documents to the father within 48 hours.
None of the additional or different orders proposed by the mother on 3 March 2020 were ultimately made by the court.
On 16 March 2020, the father formally rejected the mother’s offer of 3 March 2020. However, significantly, the father did accept the mother’s proposal for equal shared parental responsibility in the mother’s proposed order 2. On the other hand, the father continued to propose that the airport watch list order be discharged and that X’s passport be held by him. More specifically, the father proposed orders that:
1. That the Respondent Mother pay the outstanding costs order to the Applicant Father as outlined in the Federal Circuit Court Orders of 6 December 2019 in the sum of $1,813 no later than Friday 20 March 2020.
2.That without admitting the necessity for the same, that the Mother be restrained from communicating with, and obtaining any information directly from, the child’s school, general practitioner, counsellor or other health professional involved with the child in respect of his physical health and welfare, except if the child has provided the Mother with written permission to do so.
3.That the Airport Watch List Order made by the Federal Circuit Court of Australia at Melbourne made on 21 November 2012 at paragraphs 2, 3 and 4 and Orders dated 18 October 2013 at paragraphs 10 and 12 be discharged.
4.That the child’s passport held by the Federal Circuit Court Registry be provided to the Father and to be held by the Father into the future.
5.In the event that the child wishes to travel to visit the Mother, and pursuant to paragraph 6 the parties have agreed in writing for the child to spend time with the Mother, all costs of air travel of the child are to be borne solely by the Mother and the child is to travel unaccompanied.
6.That without admitting the necessity for the same, that in the event that the child changes his mobile phone number, it is at the discretion of the child if he discloses the new phone number, and the Applicant Father be restrained from restricting him to provide this number to the Respondent Mother.
7.That within 48 hours from the date of these Orders, that the Mother provide to the Father the child’s identity documents, including his Birth Certificate, Australian Citizenship Certificate paperwork, immigration paperwork and graduation certificates, by way of registered post to be sent to the Father’s Lawyers.
8.That the parties be re[s]trained from attending the home address of the other party, without a prior agreement in writing between the parties.
[9]. That in the event that one of the parties changes their email addresses and telephone numbers, they are to be notified to the other party within 24 hours.
The orders proposed by the father on 16 March 2020 were more favourable to the mother than the orders that the court ultimately made. However, the mother did not accept them. Nor did the independent children’s lawyer. As such, it was not entirely the mother’s fault that orders were not made by consent in accordance with the father’s proposal of 16 March 2020.
The family report in this matter was released on 13 March 2020. Significantly, it recommended that the father have sole parental responsibility for X, and that orders be made for the father to pursue family violence counselling for X.
The independent children’s lawyer agreed with the family consultant that the father should have sole parental responsibility, but did not agree that the father should be required to pursue family violence counselling for X. The independent children’s lawyer sent the parents her proposed orders on 25 March 2020 in the following terms:
1.That all previous parenting orders be discharged.
2.That the Mother pay the outstanding costs order to the Applicant Father as outlined in the Federal Circuit Court Orders of 6 December 2019 in the sum of $1,813 by ………….
3.That the Father have sole parental responsibility for the child, X born in 2004 ("the child").
4.That the child lives with the Father.
5.The Father authorises the school to provide to the Mother copies of the child's school reports.
6.That the child spends time with the Mother at his request, and at times agreed in writing between the parties.
7.That in the event that the child wishes to travel to visit the Mother, and pursuant to paragraph 6, the parties have agreed in writing for the child to spend time with the Mother, all costs of air travel of the child are to be borne solely by the Mother and the child is to travel unaccompanied.
8.That the Father facilitate any request of the child to send letters, cards and/or presents to the Mother from time to time and on special occasions such as the Mother's birthday, Mother's Day, Christmas, Easter and the like.
9.That the Mother be at liberty to send the child letters, cards and/or presents from time to time and on special occasions such as the child' birthday, Christmas and Easter.
10.That the Airport Watchlist Order made by the Federal Circuit Court of Australia at Melbourne on 21 November 2012 at paragraphs 2, 3 and 4 and Orders dated 18 October 2013 at paragraphs 10 and 12, be discharged.
11.That the child's passport held by the Federal Circuit Court Registry be provided to the Father and to be held by the Father into the future.
12.That in the event that either party plans to travel with the child, or the child is planning to travel overseas without the other parent, the alternative parent is to provide a copy of the itinerary for travel to the other parent within 14 days of the proposed travel for their reference only, noting that the other parent cannot interfere in the child's travel plans.
13.That the parent booking the child's travel in accordance with Order 16 is to provide a copy of the itinerary and any e-ticket to the other parent not less than seven (7) days prior to the travel.
14.That in the event that one of the parties changes their email addresses and telephone numbers, they are to be notified to the other party within 24 hours.
15.That the parties be restrained from attending the home address of the other party, without a prior agreement in writing between the parties.
16.That, while denying the necessity for the same, each parent be restrained from denigrating or insulting the other parent or member of that parent's family or speaking in derogatory terms about the other parent in the presence or hearing of the child.
17.That within 48 hours from the date of these Orders, that the Mother provide to the Father, the child's identity documents, including his Birth Certificate, Australian Citizenship Certificate paperwork, immigration paperwork and graduation certificates, by way of registered post to be sent to the Father's Lawyers.
18.That pursuant to section 62B and 65DA of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
The following day, on 26 March 2020, the father’s solicitor sent the independent children’s lawyer and the mother, who was then unrepresented, a letter indicating the father’s agreement with the independent children’s lawyer’s proposed orders. The same day, the mother rejected the independent children’s lawyer’s proposal, and complained that the father had not responded to her proposal of 3 March 2020.
The mother engaged new lawyers, Irwin & Irwin Law, who are her current lawyers. They wrote to the father’s solicitor on 8 May 2020 saying that the mother would agree to the father’s proposal, by which it seems was meant the independent children’s lawyer’s proposal of 8 May 2020, except that she wanted equal shared parental responsibility.
On 15 May 2020, at Mr Irwin’s request, the independent children’s lawyer sent the parties an updated proposal, incorporating the following additional order requested by the mother:
14.That the parties are to keep each other notified as soon as possible of any emergencies or hospitalisations or affecting the child.
Technically, this constituted an entirely new offer, although only one paragraph was added.
The mother’s solicitor sent the parties another letter dated 19 May 2020 in which he expressly said that the mother would agree to the independent children’s lawyer’s updated proposal of 15 May 2020, except that the mother wanted equal shared parental responsibility.
The evidence before the court does not contain an express statement that the father agreed to the independent children’s lawyer’s updated proposal of 15 May 2020. However, it appears that he did, because all parties agreed that the independent children’s lawyer should ask the court for an urgent listing to see if the matter could be resolved on the basis that the only issue outstanding was parental responsibility. The independent children’s lawyer sought that listing on 21 May 2020, and the matter was listed for mention on 26 May 2020.
As of 19 May 2020, the matter could have been resolved on the basis of the independent children’s lawyer’s updated proposals of 15 May 2020, except that the mother wanted equal shared parental responsibility. The final orders were for the father to have sole parental responsibility. As at 19 May 2020, it was unreasonable for the mother to persist in seeking equal shared parental responsibility, particularly in view of the family report and the independent children’s lawyer recommending sole parental responsibility, and particularly in view of the assaults by the mother on X that led to that recommendation, which the mother denied, but which she well knew to be true.
In any event, rather than the matter settling, the parties jointly decided to seek a mention of the matter, at which the independent children’s lawyer hoped that the court would give an indication on the parental responsibility issue, and the matter would be resolved by consent in accordance with the indication. The mention was listed for 26 May 2020.
On 22 May 2020, the independent children’s lawyer sent the parties a letter asking them to consent to the orders proposed on 15 May 2020, with proposed paragraph 3 crossed out. The independent children’s lawyer hoped that, by locking in all other issues, the trial, if any, could be considerably shortened. The mother did not respond to that communication. It seems that the father was agreeable to the independent children’s lawyer’s proposal of 22 May 2020.
On 24 May 2020, prior to the mention on 26 May 2020, Mr McLeod of counsel, on behalf of the mother, sent the parties a proposal that substantially undid the agreements that had been reached. Apart from the matters that continued to be agreed, Mr McLeod’s proposal was for:
a.the discharge of the order for costs for 6 December 2019;
b.the parents to have equal shared parental responsibility;
c.the mother to be at liberty to contact X’s school;
d.X to spend time and communicate with his mother as agreed between X and his mother, rather than at X’s request and as agreed between the parents;
e.the deletion of the requirement that should X wish to travel to visit the mother, and with such visit being agreed to in writing by the parents, all costs of X's air travel be solely borne by the mother and that X is to travel unaccompanied;
f.the mother to be able to send X letters via social media and email;
g.X’s passport to be held by X, rather than the father;
h.the deletion of the requirement for parents not to interfere in X’s travel plans;
i.the father to notify the mother of any change to X’s telephone number; and
j.the mother to provide X’s identity documents within seven days rather than 48 hours.
None of the mother’s proposals of 24 May 2020 were accepted by the other parties and none of them were reflected in the final orders of the court.
At the mention on 26 May 2020, it was clear that there was now more than one issue in dispute. Mr McLeod, for the mother, told the court that he was not agreeable to the court giving an indication on the issue of parental responsibility, and so the court did not do so. The court attendance was therefore a waste of the parties’ time and money.
The father made another offer in writing on 26 May 2020. It was the same as the independent children’s lawyer’s proposal of 22 May 2020 except that it inserted the requirement in proposed order 2 that the mother pay the outstanding costs order by no later than 29 May 2020, deleted the requirement in proposed order 13 for the parties to keep each advised of their residential addresses and it contained the following new proposed orders:
8.That while denying the necessity for the same, that the Mother be restrained from contacting the child directly through email or on his mobile phone. (This was substantially the same as order 7 of the final orders.)
…
10.That the Mother be at liberty to send the child letters, cards and/or presents to from time to time and on special occasions such as the child’s birthday, Christmas and Easter to P O Box B, Suburb C, Vic. In the event that this address changes, the Father is to provide the Mother within 7 days of the change of the updated PO BOX details. (This was substantially the same as orders 8 and 9 of the final orders.)
…
18.That while denying the necessity for the same, within 48 hours of the date of the Court Orders, the Mother remove all Facebook posts and any other social media platforms, made by her that name or refer to the Father, the child or the Father’s daughter K, the Father’s Wife Ms L and his stepson M or reference to these Family Law proceedings. (This went beyond the final orders, which only restrained breaches of s.121 of the Act.)
19.That while denying the necessity for the same, that the Mother be restrained from posting on social media (including but not limited to Facebook and blogs) and publishing any information to any external party outside of these Court proceedings, concerning the Father, the child or the Father’s daughter K, the Father’s Wife Ms L and his stepson M or reference to these Family Law proceedings. (This went beyond the final orders, which only restrained breaches of s.121 of the Act.)
…
21.That the Father be permitted to obtain a passport for the child. (This was substantially the same as order 15 of the final orders.)
22.In the event that any documents are required to be signed by the Mother to obtain the passport referred to in paragraph 22 herein, the Father be permitted to sign all such documents to obtain the passport. (This was substantially the same as order 15 of the final orders.)
23.The parties do all acts and things and execute any documents reasonably necessary to give effect to these Orders and should either party fail to execute any document within 7 days of their being so requested a Registrar of the Court pursuant to Section 106A be and is hereby appointed and authorised to sign such documents on behalf of such party. (This was not reflected in the final orders because it was superfluous.)
The father’s proposal of 26 May 2020 was largely, but not entirely, reflected in the court’s final orders. The significant omission concerned social media posts. Consequently, the offer of 26 May 2020 cannot strictly operate as a Calderbank offer.
On Sunday 31 May 2020, Mr McLeod for the mother and Mr Lovering for the father had further settlement discussions. Following those discussions, Mr McLeod sent an email to the court and the independent children’s lawyer at 8.07pm on 31 May 2020. That included a minute of the mother’s proposed orders and said that the only issues between the mother and father were:
a.parental responsibility for passports (the parents were agreed that there should be equal parental responsibility except that the father wanted sole parental responsibility for X’s passport);
b.disclosure of X’s residential address (the father did not want to provide it); and
c.discharge of the costs order against the mother made on 6 December 2019.
The mother’s minute was as follows:
1.That all previous parenting orders be discharged.
2.The Costs order made in the Federal Circuit Court Orders on 6 December 2019 in the sum of $1,813 be discharged.
3.That the Mother and Father have equal shared parental responsibility for the child, X born in 2004 (“the child”).
4.That the child live with the Father.
5.That the Father must authorise the school to provide to the Mother copies of the child’s school reports, applications for school photographs, and the mother be permitted to liaise directly with the school but may only attend the school at the direction of the school.
6.The child shall complete his schooling at his current school and in the event he changes school it shall be at his discretion and the mother is to be advised of any such change forthwith.
7.That the child spends time with and communicates with the Mother at his request and any such communication shall be at the child’s instigation only.
8.That the Father facilitate any request of the child to send letters, cards and/or presents to the Mother from time to time and on special occasions such as the Mother’s birthday, Mother’s Day, Christmas and Easter.
9.That the Mother be at liberty to send the child letters, cards and/or presents to from time to time and on special occasions such as the child’s birthday, Christmas and Easter to P O Box B, Suburb C, Vic. In the event that this address changes, the Father is to provide the Mother within 7 days of the change of the updated PO BOX details.
10.That the Airport Watchlist Order made by the Federal Circuit Court of Australia at Melbourne on 21 November 2012 at paragraphs 2, 3 and 4 and Orders dated 18 October 2013 at paragraphs 10 and 12, be discharged.
11.That the child’s passport held by the Federal Circuit Court Registry be provided to the Father.
12.That in the event that either party plans to travel with the child, or the child is planning to travel overseas without the other party, the alternative party is to provide a copy of the itinerary for travel to the other party within 14 days of the proposed travel for their reference only.
13.That the parties are to keep each other notified within 24 hours of any changes to their mobile phone numbers.
14.That the parties are to keep each other notified as soon as possible of any emergencies or hospitalisations or affecting the child.
15.That the parties be restrained from attending the home address of the other party, without a prior agreement in writing between the parties.
16.That while denying the necessity for the same, the parties be restrained from denigrating or insulting each other or members of that parent’s family or speaking in derogatory terms about each other in the presence or hearing of the child.
17.That while denying the necessity for the same, each party shall remove any facebook or social media posts made by them that otherwise breach s.121 of the Family Law Act.
18.That while denying the necessity for the same, both parties shall be restrained from posting on social media (including but not limited to Facebook and blogs) and publishing any information to any external party outside of these court proceedings concerning the Mother and the Father or any member of their family and the parties otherwise be restrained from breaching s.121 of the Family Law Act in the future
19.That within 7 days from the date of these Orders, the Mother provide to the Father, the child’s identity documents, including his Birth Certificate, Australian Citizenship Certificate paperwork, immigration paperwork and graduation certificates, by way of registered post to be sent to the Father’s Lawyers.
20.That the Father be permitted to obtain a passport for the child.
21.Each party shall sign any passport application within 7 days of any request for the same.
22.The parties do all acts and things and execute any documents reasonably necessary to give effect to these Orders and should either party fail to execute any document within 7 days of their being so requested a Registrar of the Court pursuant to Section 106A be and is hereby appointed and authorised to sign such documents on behalf of such party.
23.That pursuant to section 62B and 65DA of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
AND THE COURT NOTES:
A.The family report writer has recommended that the child requires counselling.
When the matter was called on for trial on 1 June 2020, it became apparent that the independent children’s lawyer did not consent to significant parts of the agreement between the parents. Notably, the independent children’s lawyer did not agree to:
a.equal shared parental responsibility, unless there was also an order restraining the mother from contacting X’s school and the deletion of the words “at his discretion” in relation to any change of X’s school; and
b.a notation to the effect that the family consultant said X requires counselling, because the family consultant actually said that he requires family violence counselling.
In addition, the independent children’s lawyer asked for a compliance mention in a couple of weeks to ensure that the mother had provided X’s identity documents.
In relation to the notation, the independent children’s lawyer and the father preferred that it be a notation rather than an order. The mother had included the issue of X’s counselling as a notation in her minute of proposed orders, but her barrister, Mr McLeod, told the court that she would prefer it was an order.
In any event, the parties were unable to agree, and the hearing proceeded for four days. There were some relatively minor matters that were consented to. However, when the mother did not get her way, she decided that the trial should proceed on all issues. Most significantly, the mother pressed for an order that X live with her, even though he had clearly and consistently stated between the ages of 13 and 15 years that he did not want to see her at all. This was obviously a grossly unreasonable position to take, and greatly extended the duration of the hearing.
In the last minutes of the hearing, the father consented to an order that the mother have access to COMPASS, which parents can access over the internet to discover school records relating to their child. The father had previously strenuously opposed that order being made because he mistakenly believed that access to COMPASS would give the mother access to his and X’s residential address. When the father realised his error, he consented to the order. Mr McLeod told the court at that point that, if that issue had been conceded earlier, there need not have been a hearing.
Mr McLeod did not give evidence in the costs hearing. The father’s solicitor said in her affidavit that Mr McLeod’s statement was a throw away line, and that the issue relating to COMPASS only emerged during the running of the trial. That claim is borne out by the fact that it was not in Mr McLeod’s minute of proposed orders or list of issues.
g. other relevant matters
The mother said that the proceedings were commenced by the father unnecessarily. She submitted that the parties would have been able to resolve the matter without recourse to litigation. That is obviously not true, as the parties required a four day hearing and a court determination for the matter to be resolved.
Also, because there were previous orders in place from 2013, when X began living with the father at the beginning of 2018, it was necessary for legal proceedings of some sort to be brought to regularise the situation.
The costs of 6 December 2019
The mother asked the court, again, in the context of the costs argument, to discharge the costs order made on 6 December 2019 for her to pay the costs of that day. That was an interim order. As the matter was again ventilated at the trial, and as I was not persuaded to discharge it, it was restated as a final order in the other final orders made on 8 September 2020. As it was a final order, it is not open to me to change that order, except on limited bases which it was not suggested apply in this case.
The costs of the proceeding
As noted above, the basic approach in family law matters is that each party bear their own costs. That basic approach is premised on each party being more or less sensible and reasonable in their conduct of the litigation. Where a person is not at all sensible and reasonable, and where that causes another party to unnecessarily incur costs, it can be appropriate to order that person to pay another party’s costs, on an indemnity basis or on scale.
In the present case, on 14 February 2019, the matter could reasonably have settled on terms at least as favourable for the mother as the final orders, when the independent children’s lawyer indicated her acceptance of the father’s offer, but the mother did not. Technically, the father’s previous offer had lapsed by the effluxion of time, and also because he sent out a new offer the same day. But, in the real world, those issues would have been surmountable with a modicum of good will and common sense.
I do not consider that the offer of 16 March 2020 should have been accepted by the independent children’s lawyer, even though the mother and father were prepared to accept it, because it proposed equal shared parental responsibility. That was patently not in X’s best interests.
Similarly, I do not consider that the independent children’s lawyer should be criticised for not accepting the agreement reached by the mother and father on 31 May 2020. It was not in X’s best interests.
This case fits within at least one of the categories mentioned in Colgate-Palmolive as warranting an indemnity costs order, namely, the mother’s imprudent refusal of an offer of compromise (being the offer of 2 September 2019) and possibly also the category of pursuing a case in wilful disregard of known facts (being that the mother knew that she had seriously assaulted X) and the category of the undue prolongation of a case by groundless contentions (being the mother’s contentions that X should live with her and that his parents should have equal shared parental responsibility for him).
However, as Medlon makes clear, indemnity costs are still an exception in the family law and other jurisdictions. There is also the requirement in the family law jurisdiction to consider the financial circumstances of the parties.
As noted above, the mother is presently unemployed and has no assets. The father also has no assets but he is employed. The mother could probably earn considerably more than the father when she gets a job. While there is some doubt about the mother’s job prospects, particularly with COVID-19, it is probably fair proceed on the basis that she will be employed at a substantial rate of remuneration in the future. She herself acknowledged in her evidence that she was likely to be employed and well remunerated in the future.
The father seeks indemnity costs from 16 September 2019 of about $80,000. On this court’s event based scale, by my rough estimate, the costs of the proceeding would be about $36,000, leaving aside the costs order relating to the interim hearing on 6 December 2019.
Taking into account all of the circumstances of this case, including the factors supporting an award of indemnity costs and the parties’ financial circumstances, I consider that it would be just in this case for the mother to pay $40,000 towards the father’s costs of the proceeding, inclusive of interest, in addition to the existing order relating to 6 December 2019. As the mother’s financial situation is precarious at present, I consider that she should pay the $40,000 in four instalments of $10,000 on or before 30 June 2022, 30 June 2023, 30 June 2024 and 30 June 2025.
The costs of the costs application
The financial circumstances of the parties are discussed above. Neither party was legally aided for the costs application. Nothing was brought to my attention about the conduct of the parties in relation to the costs application. The father was not wholly successful in his costs application. I was not told about any offers in writing to settle the costs application. There are no other relevant matters.
In all of these circumstances, I do not consider that it would be just to make an additional costs order for the costs application.
Costs of the courier
The father also sought costs of the courier that he sent to the mother’s house on 1 June 2020, which were wasted, because the mother did not provide X’s identity documents on that day. However, the mother did provide the identity documents the following day via another courier, which I gather was at her expense. I see no need for an adjustment in relation to this matter, as the father was willing to pay for one courier to get the documents, and he eventually got them without any further expenditure.
Financial restraint on the mother
The father also sought an injunction restraining the mother from withdrawing more than $200 per week from any account except for the purposes of making payments pursuant to the costs order. I consider that such an injunction is unnecessary. A debt of $10,000 is sufficient to found a bankruptcy notice. That should be a sufficient incentive for the mother to pay the costs in a timely manner.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 14 January 2021
0
9
0