Pitcher and Anor and Browney

[2008] FamCA 1258

FAMILY COURT OF AUSTRALIA

PITCHER AND ANOR & BROWNEY [2008] FamCA 1258

FAMILY LAW – Costs

Family Law Act 1975 (Cth) s 117 (2), (2A)

APPLICANTS: Mr Pitcher and Ms Edwin

RESPONDENT: Ms Browney

FILE NUMBER: (P)NCF 332 of 2006

DATE DELIVERED: 8 September 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 8 September 2008

REPRESENTATION

APPLICANTS: In person

RESPONDENT: In person

Orders

1. That each of the parties pay their own costs.

2. That the costs application filed 25 August 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pitcher and Anor & Brownie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 332 of 2006

MR PITCHER AND MS EDWIN

Applicants

And

MS BROWNEY

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. On 23 May 2006 Ms Browney (‘the mother”) commenced parenting proceedings.  The proceedings were finalised on 25 July 2008, when I made orders and published my reasons for decision.  I incorporate the orders into these reasons. 

3. On 25 August 2008 Ms Edwin (‘the paternal grandmother”) and Mr Pitcher (‘the father”) filed an application seeking that the mother pays, in the case of the grandmother $6751.89 costs and, in relation to the father, costs of $8914.71.  The application is phrased in the alternative, being paid either by the mother or from D Pty Ltd.  D Pty Ltd has not been joined to the proceedings. It is not submitted that D Pty Ltd is the mother’s alter ego.  Consequently I lack jurisdiction to make orders requiring that company to pay costs. 

4. The focus then is on the claim in so far as it relates to the mother.

5. Ordering costs is a discretionary matter. Section 117 of the Family Law Act 1975 (Cth) provides that, subject to ss (2), each party to proceedings under the Act shall bear his or her own costs; the Court may make an order for costs where it is satisfied that the circumstances justify it in doing so in circumstances and the amount which the Court considers just. The factors the Court considers are set out in ss (2A).

6. The father has approximately $90,000 per annum gross income.  From this he pays child support of approximately $1,200 per month.  He owns a home at W worth approximately $300,000, subject to a $220,000 mortgage.  His car is leased.  The W property is an investment property and the rental income has been taken into account in his income cited above. 

7. The paternal grandmother is retired.  She owns her home which I infer is unencumbered.  In the last financial year she earned income of approximately $27,000.  She supports the children with the child support contribution paid by the father and the tiny child support payment identified in exhibit A from the mother.  There is little reason to doubt that the paternal grandmother is the person primarily responsible for the children's financial support. 

8. The mother works as a casual manager.  She has $200 per week from a family tax benefit, approximately $400 per week net wages and $125, rounded out, from Centrelink.  Her wages vary, by reference to the hours worked, and her Centrelink payments, by reference to the income received from her paid employment.  As a working guide, however, her average weekly income is approximately $725.  From this, the mother pays rent of $320 per week, which leaves her with $405 per week for herself and her daughter, M.  The mother does not receive child support from M’s father.  He is in prison and it appears unlikely that this situation will change soon.  The mother has credit card liabilities of approximately $23,000 and she owns a car. 

9. Comparatively, the father appears in superior financial position to either the mother or his mother.  The paternal grandmother’s financial position is superior to the mother’s.  The application of the subsection favours the mother.

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

11. Neither applicant for costs makes any submissions in relation to the conduct of the proceedings.  I agree that ss (c) and (d) are irrelevant.

12. The costs application is pressed substantially in relation to sub-para (e) and sub-para (f); that is, whether a party to proceedings has been wholly unsuccessful and, as to the latter, whether or not an offer in writing has been made to settle the proceedings, including the terms of the offer. 

13. It is submitted by the applicants that the mother has been wholly, or largely, unsuccessful.  There is no doubt that when the proceedings commenced the mother sought to have both children reside with her, a position she maintained until well into the proceeding.  The children were then residing with the paternal grandmother, who quite early in the proceedings and as a consequence of the costs involved, withdrew.   Consequently the proceedings became, for a time, an issue between the parents about the children's future care.  Following the release of a family report, the paternal grandmother rejoined the proceedings and, by consent, the children have been ordered to live with her. 

14. The focus of the proceedings then shifted and became the amount of time and circumstances under which the mother would spend time with the children.  This was a hotly-contested issue, with the parties' positions shifting as events unfolded.  At all times the mother sought to spend time with the children, unsupervised.  For approximately the last 10 months or so, the paternal grandmother and the father argued in favour of supervised visits only.  As the orders demonstrate, the mother was successful in obtaining an order for unsupervised time with the children, albeit less than she sought and closer, in terms, to the position maintained by the father at the final stage of the hearing, but considerably more generous than proposed by the paternal grandmother. 

15. Linked to the comparative success of the proceedings is the father’s offer of settlement contained in letter of 25 August 2006, sent by his then solicitors, Mullane and Lindsay, to the mother’s then solicitors, Robyn Sexton & Associates.  In this letter the father proposed that an order be made that the children live with him.  Concerning the children's time with the mother, it was proposed that the children would spend time with her each alternate weekend, half the school holidays and on other special occasions.  The amount of time proposed for the children to have with the mother in that letter is greater than the amount of time she ultimately achieved. 

16. The point that cannot be lost sight of however, is that, by about April 2007, the father's position in the proceedings bore no relationship to the offer of settlement contained in that letter.  Not long after the letter was written, it became apparent that there were difficulties in the mother's relationship with Mr D.  The events which then unfolded are referred to in my reasons for a decision.  I accept the mother’s position that, had she accepted the offer contained in the letter of 25 August 2006, the reality is that that would have been a fleeting agreement and that the probability is that the litigation which ensued would still have ensued, albeit it would have required a fresh application, probably by the father. 

17. On balance, the application of ss (e) is moot; the application of ss (f) favours the father.  It is not, however, a matter to which I attach any real weight. 

18. In relation to ss (g) there are two particular points that I wish to highlight.  The father submits that the mother failed to give adequate attention to his offer of compromise.  He says he did not receive a written response to it and his father's attempts to broker an agreed outcome in the latter part of 2006 were treated with disdain.  I accept that that is the case and it is conduct which warrants unfavourable comment as far as the mother is concerned.  If, per chance, an issue arises between these parties in the future, the mother would need to think very carefully before she ignored or treated with similar disdain offers of compromise. 

19. Secondly, the paternal grandmother is most unhappy about the quantum of child support the mother pays towards the children’s care.  The amount paid is obviously insufficient to make a meaningful contribution to her costs of supporting the children.  The level of child support is assessed by reference to a statutory formula.  The opportunity exists for a party unhappy with the effect of the application of the formula to seek a departure from it.  Initially, the departure process is one of, in effect, administrative review.  The paternal grandmother can, if she considers there are proper grounds for doing so, seek such a departure.  The factor of outstanding child support and insufficient contribution to the children's financial costs is not a matter which could be allowed to influence the outcome of the costs application. 

20. Having regard to my findings, there is nothing in the facts which would make an order for costs against the mother appropriate.  Consequently each of the parties must pay their own costs and the costs application is dismissed. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  8 September 2008