Raeburn & Raeburn
[2022] FedCFamC2F 270
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raeburn & Raeburn [2022] FedCFamC2F 270
File number(s): SYC 3560 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 2 March 2022 Catchwords: FAMILY LAW – costs application by Mother relating to resolved parenting proceedings – costs order not made Legislation: Evidence Act (Cth), s. 131
Family Law Act 1975, s. 117
Division: Division 2 Family Law Number of paragraphs: 28 Date of last submission/s: 28 February 2022 Date of hearing: 28 February 2022 Place: Parramatta Solicitor for the Applicant: Mr Frakes, Watts Mccray (NSW) Pty Ltd Counsel for the Respondent: Ms Petrie ORDERS
SYC 3560 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RAEBURN
Applicant
AND: MR RAEBURN
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
2 MARCH 2022
THE COURT ORDERS THAT:
1.The Mother’s costs application against the Father set out in her Further Amended Initiating Application filed 29 October 2021 is dismissed.
2.Each party pay their own costs in relation to the above costs application of the Mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Raeburn & Raeburn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This is the determination of the Mother’s application for costs. She had sought an order for costs against the Father as set out in her Further Amended Initiating Application, filed 29 October 2021. The Court refers in particular to proposed Order 15 in that regard.
The above application for costs was opposed by the Father.
The Mother relied upon the documents set out in a document emailed to the Court on 24 February 2022. The Father relied upon his Affidavit filed together with his Outline of Submissions in relation to the Mother’s costs application, filed on 9 December 2021.
The Father objected to the Mother relying upon a copy of an email sent by her to the Father, on 1 October 2019. The Father submitted that the contents of this email related to a without prejudice mediation held between the parties prior to 1 October 2019, and it was thereby inadmissible under section 131 of the Evidence Act (Cth). The Court refers to section 131 of the Commonwealth Evidence Act. Having regard to section 131 of the Evidence Act, in particular, subsection (1)(a) of that section and subsection (2)(h) of that section, the Court is of the view that the above email communication from the Mother to the Father had a connection with the parties’ earlier mediation. The email communication is probably relevant, but it is background only to the present costs’ application. The Court overrules the objection.
On 22 October 2019, the Mother had filed an Initiating Application seeking parenting orders against the Father.
On 5 November 2019, the parties appeared before the Court, and the Court, inter alia, appointed an ICL to represent the children, directed the parties and children to attend a Child-Inclusive Conference on 10 February 2020, and appointed an interim hearing on 18 February 2020, the issues being the nature and extent of the children’s time with the Father.
An interim hearing was held on 26 March 2020. Orders were made by the Court on 8 April 2020.
On 9 November 2021, the Court had made final parenting Orders by consent. Those Orders had provided, inter alia, that the parties have equal shared parental responsibility for the children (X, born 2007 and Y, born 2011), that the children live with each of the parties in a week about arrangement, that the Father be restrained by injunction from consuming any illegal drugs, that the Father carry out a hair drug test, and that in the event that any hair follicle test was positive for illicit drugs, then the Father’s time with the children shall be forthwith suspended pending further agreement or Order of the Court.
The Court refers to section 117 of the Family Law Act 1975 (the Act) in relation to the Mother’s costs application.
Under subsection (1) of section 117, each party to the proceedings bears his or her own costs subject to, inter alia, subsection (2) of section 117. The Court refers to subsection (2) and subsection (2A) of section 117.
The Court now turns to a consideration of relevant matters within subsection (2A) of section 117 of the Act.
The Mother and the Father have both incurred significant costs as a result of these proceedings.
The Mother works as a professional charging at an hourly rate working from home. As at the date of the Mother’s Affidavit, filed 29 October 2021, she owed about $10,000 to her solicitors for legal fees. The Mother avers that she has met her significant legal costs from her savings and income.
The Father is self-employed and has his own business. He asserts in his Affidavit, filed 9 December 2021, that his business generates only limited income, and in the 2020 financial year the business generated about $27,000 gross income. He asserts that he has a balance of $2,047 in his bank account. He asserts that he owns a house in Region J, but that he now has to sell it due to his financial situation. He asserts that he owes his parents about $69,000 for borrowings from them to pay his legal costs. He asserts that he cannot afford to pay the Mother’s costs as sought by her or at all. In the view of the Court, the Father’s present asserted financial circumstances are a significant factor in relation to the Mother’s costs application.
Both parties make various submissions in relation to the conduct of the parties to the proceedings during the proceedings.
There is some force to the submissions of the Father, in the current context of the conduct of the parties, that the Court did not make the Mother’s proposed interim parenting orders on 8 April 2020, but, rather, the Court’s interim Orders were more consistent with the Father’s proposed orders at that interim hearing.
The Court refers to the Mother’s submissions in relation to the Father’s admitted misstatements in his Affidavit, filed 5 November 2019, noting the contents of his later Affidavit, filed 19 December 2019. In this context, the Father asserts in his Affidavit, filed 9 December 2021, that following becoming aware of a positive hair follicle test in late October 2019, he panicked and made misstatements in his Affidavit, filed 5 November 2019. However, he then filed his Affidavit of 19 December 2019, a relatively short time later, candidly admitting to the prior misstatements.
The Court acknowledges that the Father apparently related a greater historical use of illicit substances when being interviewed by Dr C, psychologist and single expert, compared to his disclosures in his Affidavit, filed 19 December 2019. But in the absence of the Father being cross-examined as to the reasons for these differences, in the view of the Court it is speculative to suggest that the Father made deliberate misstatements again in that latter Affidavit. In any event, the Court refers to the contents of its interim judgment, dated 8 April 2020, in particular, paragraphs 47 and 51 of its judgment where it had stated:
47. The Court has taken into account the toxicologist’s opinion that it was unlikely that the hair test results were from only a few drug-use occasions, again, acknowledging that the toxicologist’s opinions remain untested.
The Court refers to paragraph 51 of its interim judgment, which stated:
51. The Court recognises from the material adduced by the Mother that it is possible that the Father’s use of illicit drugs, including amphetamines and marijuana, looking at the matter retrospectively, may have extended well prior to late May 2019. (noting that the hair test results comprised the period from about late May 2019 up to late September 2019).
The Court should also state that it is probably also speculative to state what might have been the Mother’s position, in relation to the parenting proceedings in the period prior to Dr C’s report, dated 23 June 2021, had the Father earlier disclosed in the proceedings the extent of his illicit drug use as he had related to Dr C. The Court observes that, for example, despite the Father’s acknowledgement of misstatements as to his illicit drug use in his Affidavit filed 19 December 2019, and his statements as to illicit drug use in that Affidavit, the Mother:
had always thought that [Mr Raeburn’s] evidence, contained in his Affidavit of 19 December of 2019, was false.
The Court takes into account the Father’s assertion that since the interim Orders of late April 2020, he has complied with the Court’s Orders. The Court takes into account his assertions that he had returned nothing but clean drug test screening, and that his time spent with the children has been without incident.
The Court takes into account, from Dr C’s report of 23 June 2021 (Dr C had interviewed the Father on 4 May 2021 with a brief follow up phone interview on 22 June 2021) that Dr C had stated, based on the information provided to her, including illicit drug tests for the Father, that the Father had achieved 20 months of abstinence from illicit drugs, she having stated:
…and the frequent urinalysis and HFT results lend considerable support to his claims.
The Court takes into account the contents of the therapy engagement report of Dr E, child and family consultant, dated 16 February 2020, relating to her consultations with the Father. The Court refers to paragraph 28 of that report, indicating that the Father had stated to Dr E that if the former parenting arrangement was restored, he would be prepared to undertake a robust drug testing regime for a minimum period of 12 months, including hair follicle testing and random urinalysis, and that he intends to remain living with the paternal grandparents. Dr E has stated that such testing regime, if consistently implemented, would ensure that there was minimal likelihood of the children being exposed to drug use on the Father’s part, and that it would give the Mother peace of mind and allow her to slowly rebuild her trust in the Father as a person and as a parent.
The Court takes into account the Father’s assertions that there was a delay in obtaining Dr C’s report through COVID restrictions, and initial availability constraints of Dr C for appointments.
The Court takes into account the Father’s assertion that, since December 2020, the children have been living in an equal time arrangement, with the Court observing that Order 7 of the Court’s interim Orders of 8 April 2020 provided that:
That upon completion of a further three consecutive clean chain of custody drug screens, from 18 December 2020, the children live with each of the parties in a week about, with the changeover times to be Sundays at 6 pm.
The Mother submits, inter alia, that the parenting proceedings were only necessary because of the Father’s drug use and were exacerbated by the Father’s lying on oath. The Court has already discussed about the issue of the Father’s misstatements to the Court. The Court acknowledges that there is a significant suggestion that the Mother commenced proceedings by reason of her concerns in relation to the Father’s drug use. The Court observes that parenting proceedings are often commenced by a parent who alleges a parenting deficit of some description in the other parent. (For example, alleged family violence having an impact on a child or, as in this case, drug misuse). It is speculative to suggest, had this matter proceeded to a final hearing, what the Court’s findings may have been, if any, relating to the causes of the Father’s drug misuse, whether related to the parties’ former relationship, separation, or otherwise.
The Court has considered all the parties’ submissions and contentions in relation to the Mother’s present costs application. It has considered all the written material relied upon by the parties.
Taking into account the above matters discussed by the Court, the Court is of the view that it would not be just to make any costs order in favour of the Mother, and her costs application is dismissed. The Court is of the view that, in all circumstances, each party should pay their own costs of the Mother’s costs application to the Court. Accordingly, the Court makes the following Orders:
(1)The Mother’s costs application against the Father set out in her Further Amended Initiating Application filed 29 October 2021 is dismissed.
(2)Each party pay their own costs in relation to the above costs application of the Mother.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 11 March 2022
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