Raby & Fisk (No 2)

[2013] FamCA 558

FAMILY COURT OF AUSTRALIA

RABY & FISK (NO. 2) [2013] FamCA 558

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Raby

RESPONDENT: Ms Fisk

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 7595 of 2008

DATE DELIVERED: 29 July 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM:

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

Orders

1. That the respective applications for costs by the mother and the father are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raby & Fisk 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 ADELAIDE

FILE NUMBER: BRC 7595  of 2008

Mr Raby

Applicant

And

Ms Fisk

Respondent

Independent Children’s Lawyer

REASONS FOR COSTS JUDGMENT

1. Arising out of a disputed parenting case, both parties now seek costs against the other.  In my view, neither party should succeed.

2. These parenting proceedings have been bitter and protracted.  Ultimately, my determination was that the father’s future role in the lives of his children should be limited.  To a large degree, he contributed to that dilemma but so did the mother.

3. The father was unrepresented whilst the mother had experienced counsel throughout.  The children’s voice and views were heard through an Independent Children’s Lawyer.

4. In addition to seeking an order for costs to cover what he incurred with his previous legal representative (which the father noted was about $100,000), he also sought “compensation” for loss of “earnings and career” and “damages” in respect of false and misleading allegations by the mother.

5. The mother sought costs on a “solicitor client” (sic) basis.  In effect, the mother sought costs on an indemnity basis.

6. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs. This principle is subject to subsection 117(2) which provides that if the circumstances justify it, the court has the discretion and power to make an order for costs as it deems appropriate and just.

7. The father misunderstood the jurisdiction of the Court and its power to make the orders he sought.  To the extent that he now seeks “compensation” as he described it, there was nothing in the material he provided that warranted such consideration even if the order could be made at this stage of the litigation.  In justifying his claim (as distinct from addressing the jurisdictional question) the father said:

   ·    The mother’s unilateral decision to relocate the children from Queensland to the State of South Australia had been the deciding factor in his decision to also relocate himself to reside in the same State as his children;

   ·    He had made all efforts and attempts to secure employment both in pursuing his own business and in applying for paid work from employers;

   ·    Previous malicious accusations made by the mother had been recorded on his permanent criminal record although no convictions have been made, nor any “AVOs” or the like have ever been issued.  This, he said, had prevented him at least in part, from gaining employment sought thus far;

   ·    He took out several personal loans to fund both “legal requirements” such as Family Assessments and Barristers’ fees and also to set up his small visual arts business.  He considered the business as a way of gaining paid work.  The loans currently amount to approximately $45,000 combined.

8. Whilst eloquently put, there was no evidence upon which a finding was made at trial (or for that matter, could have been made) which would justify the Court diverting its focus to consider whether it could make such an order for compensation if it did have jurisdiction.

9. The issue before the Court concerned the exercise of the power to make an order for costs under s 117 of the Act. That provision does not enable a court to contemplate a compensation order.

10. The father also sought an order for damages as he described it.  That too was beyond the statutory scope of this Court’s power save for the exercise of some accrued jurisdictional power.  That was not what was contemplated by my order of 11 June 2013 nor should it now be having regard to the jurisdictional limitation.  The father will need to seek his remedies elsewhere. 

11. I turn then to the costs dispute.

12. The father asked for his costs associated with “this and previous matter”. Costs as a concept is not defined in the Act. It is in the “dictionary” to the rules of the Court where it is described as an amount paid or to be paid for work done by a lawyer and includes expenses.

13. The father was therefore seeking the legal costs of these proceedings and those of the past. Section 117 should be read to mean the immediate proceedings. The father did not present any material to show when or how he incurred the costs he claimed so I am not aware of what (if any) portion of the $100,000 he asserted he had paid, arose out of the immediate proceedings. That absence of evidence is not fatal because an assessment could be made by a registrar.

14. The mother said her position had always been to oppose the orders of the father and to seek that she have sole parental responsibility and that the children live with her.  She put the father on notice of her application that she would seek costs.  The mother pointed to the father’s pursuit of orders as indicated in his amended application filed 31 January 2013.  He sought contact with the children but then retracted that to seek that the children live with him.  He filed an affidavit setting out historical matters which the mother submitted were irrelevant.  I agree.  It was only in May 2013 at trial that the father abandoned his residence application. 

15. The mother pointed to the fact that:

    ·    The father was wholly unsuccessful in his various applications;

    ·    The mother was wholly successful in her application from the outset namely that the previous orders of Federal Magistrate Brown be discharged and that she have sole parental responsibility for the children who should live with her.

16. The mother has now incurred costs of about $70,000.

17. The father submitted insofar as it was relevant:

    ·    He filed his second application for “access” to see the children due to the total failure of the consent orders filed previously within the “Magistrates…..;

    ·    The mother’s constant resistance and refusal to share the children resulted in a long-term court action in which both parties sought legal representation and the recent trial only reinforces the view of the mother to the Court that she is not willing to facilitate a relationship between the children and their father on any grounds;

    ·    His current financial position is that he has very little left;

    ·    He wished to bring to the Court’s attention the matter of “Braithwaite vs Braithwaite” which he said was a case in which the father was awarded costs due to a very similar “Parental Alienation” issue.

18. In his final statement, the father appealed to the Court to take into account that the mother’s defence had only been successful due to the passage of time that the matter had taken to be properly heard by which I presume he meant that the children’s views had become entrenched and that the mother had taken the view that she did not have to comply with recommendations or orders of any person including the Court’s.  He said that the trial showed that he had been alienated from his children and that he was only pursuing his right to be a part of the children’s lives. 

19. The criticisms of the father by the mother were that the evidence presented to the Court was available to him well before the proceedings commenced and that nothing in that evidence supported his position. Indeed, notwithstanding the paucity of evidence, he pursued an application that the children live with him. The father’s cross-examination of the mother was limited and much of the testing of the evidence was really undertaken by counsel for the Independent Children’s Lawyer. Much of what the father said about the mother was far stronger than the findings that I made. His criticism of the mother arising out of the judgment of the District Court of South Australia has nothing to do with these proceedings other than to point out that he has now very little left if s 117(2A)(a) is considered.

20. Whilst the father urged the Court to contemplate the mother’s success for the reasons outlined above, it is clear from the submissions put by the Independent Children’s Lawyer that this was not a case where either party had been either wholly successful or wholly unsuccessful.  For the reasons I outlined in the judgment, the mother must take some responsibility for the position adopted by the children.

21. In relation therefore to the costs issue, the first step is to consider whether there is a justifiable circumstance to depart from the principle that each party should pay their own costs as indicated by s 117(1) of the Act. The father’s pursuit of time with the children must also be looked at in terms of the rights of the children enshrined in s 60B of the Act. Notwithstanding the criticisms of the father by the mother that he did not approach this parenting application with a view towards a sensible and pragmatic outcome, I consider there was little else he could do. The position as portrayed by the mother was not quite as simple as she would have the Court accept because as I have indicated above, counsel for the Independent Children’s Lawyer tested the mother considerably and my views about her evidence are contained in the judgment.

22. In my view, despite the father’s late change to his approach to seeking parenting orders, I am satisfied he had little choice but to proceed because he was faced with the mother’s entrenched position of there being no future contact.  In my view, it would be inappropriate for the father to be criticised for endeavouring even as a last-ditched attempt to work out some relationship with his children as there was no other avenue open to him.

23. In my view, there are no justifiable circumstances in this case for either party to have an order for costs made in their favour.

I certify that the preceding Twenty Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 July 2013.

Associate: 

Date:  29 July 2013