PEDRANA & ROBERTS

[2015] FamCA 108

FAMILY COURT OF AUSTRALIA

PEDRANA & ROBERTS [2015] FamCA 108

FAMILY LAW – Costs and adjournment

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Pedrana

RESPONDENT: Ms Roberts

FILE NUMBER: MLC 1231 of 2011

DATE DELIVERED: 30 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 January 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Nicholson

SOLICITOR FOR THE RESPONDENT: Lilley Dawson

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Brennan

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

1. That all outstanding interim applications are adjourned to 10.00am on 30 March 2015.

2. That the father file and serve any material upon which he intends to rely by no later than 4.00pm on 25 February 2015.

3. That the mother file and serve any material in reply by no later than 4.00pm on 26 March 2015.

4. That the father pay the mother’s costs fixed in the sum of $11,334 and those of the Independent Children’s Lawyer fixed in the sum of $2322 by 10.00am on 30 March 2015 with a right of both parties and the Independent Children’s Lawyer to review the payment schedule of those costs and if there is such an issue, appropriate notice be given to the other parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedrana & Roberts 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 MELBOURNE

FILE NUMBER:

Mr Pedrana

Applicant

And

Ms Roberts

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application that was filed by Mr Pedrana in August 2014 seeking both final and interim orders.  He supported that application with an affidavit filed the same day. 

2. The matter was ultimately referred to me and came into the duty list on 5 November 2014.  On 14 October, the respondent, Ms Roberts filed her material.  Suffice to say that when the matter came before me on 5 November, Mr Pedrana, who was then representing himself, was clearly not in the position to proceed.  I convinced him that he needed to put proper material before the Court, bearing in mind the litigation in this case has been substantial. 

3. This case started in 2012 and ended in a very significant trial and the file shows that there are over 120-odd documents on the file.  Notwithstanding the orders I made on 5 November for a timetable and for the filing of material, Mr Pedrana did not file anything and this morning has sought an adjournment on the basis that he is going to get a lawyer to help him.  Indeed, he has already instructed lawyers and they have indicated, he says, that they want about another four weeks. 

4. The adjournment application is opposed by Ms Roberts and, to some extent, by the Independent Children’s Lawyer, although it seems now, after discussions, that this case is really about whether there ought to be a variation of the final orders and even a variation of the nature of the orders of an interim nature as well. 

5. Both of those problems give rise to what is sometimes called the rule in Rice v Asplund (1979) FLC 90-725. It is not necessarily a rule. It is simply a principle from a case, the underlying philosophy of which is that once the court determines orders about a child’s future, that should be the end of the matter.

6. Ms Roberts wants the case over and done with but one way or the other, there is going to be an application by Mr Pedrana for some time with his child with whom he has had no contact for a long time.

7. For the reasons that I think this case needs a permanent resolution about whether there is to be any contact between Mr Pedrana and M, I think it is sensible for it to be adjourned. 

Costs

1. The only prejudice to Ms Roberts in that is costs that she is throwing away and, sadly, seems to be throwing away consistently because of the way the case has been conducted.  That is a criticism of Mr Pedrana and I am hoping that what he is now telling me is going to be the end of that problem because he will have lawyers who will address the issues of the Court’s power and the way in which the Court works out what is best for a child.

2. Needless to say, therefore, Ms Roberts has incurred costs not only for today but also for 5 November.  In each case, the amount sought is $5667 and Mr Pedrana does not dispute the quantum because it looks, from his perspective, to be close to what the scale permits.  I have not checked the scale but I must say it sounds remarkably on the light side to me.

3. The Independent’s Children Lawyer is only seeking a limited amount of costs for her attendance as counsel and the Independent Children’s Lawyer’s preparation of $2322 and that is not disputed.

4. The real issue is the question of the payment.  The total of those costs is $13,656.  It seems to me that the wife Ms Roberts’ costs should be paid first.  The Independent Children’s Lawyer is funded by the public purse but, to a very large degree, the onus of dealing with the major problems in this case seems still to fit with Ms Roberts. 

5. On that basis, I think that the costs should be paid first in the case of Ms Roberts and then the Independent’s Children’s Lawyer afterwards.

6. Ms Roberts’s position is that she wants the costs paid at the time that Mr Pedrana files his material.  I have very little opportunity to work out what is the correct approach here because Mr Pedrana wants me to reserve the costs. 

7. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings in this Court, each party shall bear their own costs unless the court is satisfied that there is a circumstance or circumstances to depart from that principle.

8. There is every justification in this case to depart from the principle, having regard to the fact that I made specific orders on 5 November and they were not complied with.  Mr Pedrana sought an adjournment and his lawyers wrote to the solicitors for Ms Roberts only effectively 24 hours ago and, therefore, it was inevitable that costs that she would incur would have to be paid by her.  That is unjust in the circumstances.

9. Before a court can make an order, however, it has to contemplate the matters set out in s 117(2A) of the Act. Those matters include the financial circumstances of the parties. There is little doubt that Ms Roberts is not flush with funds. That can be seen from the affidavit material that she has filed. Mr Pedrana tells me from the bar table that he is now working and earning $75,000 a year which, I accept with all of the obligations that people have in the community these days, is not a large income after you take out tax, accommodation and basic living expenses.

10. But in all of that, he has managed to put away $7000 to his lawyers who will be acting for him so he is prepared to fund his case but not prepared to fund Ms Roberts’s case in circumstances where he is the one who wants a solution provided.  So without absolute certainty about his financial circumstances, I can, at least, take into account those matters.

11. Another matter that I am obliged to take into account is the legal aid considerations as between Mr Pedrana and Ms Roberts.  There are no legal aid considerations here vis-à-vis them. 

12. The most important issue, however, is the question of the conduct as litigants.  The best way of looking at the conduct as a litigant is what, indeed, the parties have done in relation to the compliance with orders.  Mr Pedrana, unfortunately or otherwise, has not complied with the orders and left it until the 11^th hour for something to be done about it.  That is at a point when costs were incurred.  In my view, this is a case where this is a justification for the orders for costs of $11,334 in favour of Ms Roberts and $2322 in favour of the Independent Children’s Lawyer. 

13. As for the payment of those costs, I propose to adjourn the question for final determination on 30 March 2015 at 10 am.  I want to make it abundantly clear, however, that further application to vary that order can be made on that date by either party.  If, indeed, in the case of Ms Roberts, Mr Pedrana makes no attempt to reduce those costs or, on the other hand, he shows diligence and ultimately can show a payment plan that requires further time.  But at this stage, what I propose to do is to make an order that he pays those costs, including the Independent Children’s Lawyer’s costs, by 30 March.  I am not prepared to make an order for security for costs which has been mooted but certainly not formally made today.  But I will review the further payment beyond 30 March depending upon what evidence there is on that date of what has been done.

RECORDED:  NOT TRANSCRIBED

1. In the matter of Pedrana, I adjourn the hearing of the interim applications to 10 am on 30 March 2015.  I will order that the father file and serve any material he intends to rely upon by no later than 4 pm on 25 February 2015 and the mother to file and serve any material in reply by 4 pm on 26 March.  I will order the father pay the costs of the mother of $11,334 and the Independent Children’s Lawyer of $2322 by 10 am on 30 March 2015 with a right to both parties and the Independent’s Children’s Lawyer to review the payment schedule, provided appropriate notice is given.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 January 2015.

Associate: 

Date:  27 February 2015