RICHARD & BRIAR

[2012] FamCA 597

FAMILY COURT OF AUSTRALIA

RICHARD & BRIAR [2012] FamCA 597

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Richard

RESPONDENT: Ms Briar

FILE NUMBER: MLC 5660 of 2010

DATE DELIVERED: 16 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 16 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Whitehouse

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the sum of $7,986 fixed by FitzGibbon SR on 24 November 2011 to be paid by the mother to the father, shall be paid by 4.00pm on 14 September 2012.

2. That the mother shall pay the father’s indemnity costs associated with the January 2012 Recovery Order proceedings fixed at $19,737 by 4.00pm on 14 September 2012.

3. That the father’s application for costs shall be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richard & Briar 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: MLC 5660 of 2010

Mr Richard

Applicant

And

Ms Briar

Respondent

REASONS FOR JUDGMENT

1. I made final orders in this case on 27 April 2012, after what was the second quite lengthy trial.  The father, Mr Richard (“the father”), now seeks various costs orders.

2. Some were already set out in his Amended Initiating Application filed 20 February 2012 (in paragraphs 12 to 16), supported by his trial affidavit filed 20 February 2012 (from paragraph 263, relating to his financial circumstances).  He relied too on his affidavits filed on 8 June 2012 and 13 July 2012, and the affidavit of his solicitor Ms Whitehouse filed 8 June 2012.  Those affidavits relate to the earlier applications heralded in his Amended Initiating Application, as well as to the costs applications heralded since the trial and final orders.

3. Although Ms Briar (“the mother”) has had ample notice of the applications today, and has had the documents referred to above, in the instance of the trial application and the affidavit obviously for many months, and in the instance of the other documents for “some time” as she put it, she has filed no answering material. 

4. The mother appeared by telephone from Queensland today, and remains unrepresented.  The father has been present represented by counsel. 

5. There are three different costs applications. 

FitzGibbon SR’s orders of 24 November 2011

1. The first relates to the father’s costs fixed by FitzGibbon SR at $7986, and ordered to be paid by the mother on 24 November 2011, in relation to her failed application to have Ms D removed as the Family Report writer.

2. Unfortunately, no time was fixed for payment.  Counsel for the father today asks me to fix 60 days.  The mother says she simply cannot afford to pay in any event. 

1. I am satisfied that the period for payment should now be fairly fixed at 60 days.  The question for me is not as to whether the costs should be ordered.  They have already been ordered.  They have been outstanding for nearly eight months.  Although the mother annexed a letter to her trial affidavit, in which she proposed payment on terms to be completed by early 2013 – and she is critical that the father has not responded – it is clear that she has made no payments at all.  She gave evidence of her deliberate decision to undertake paid work only part time, so that she earns no more than something like $20,000 or $25,000 per annum, in favour of volunteering herself for various other daily tasks.  Accordingly, it seems she will not make payments.

2. It is only fair to the father that the eight month old order now be given a deadline. 

Costs for the Recovery Order Proceedings

1. Secondly, as set out in his trial material the father seeks the sum of $16,844.30 by way of indemnity costs in relation to the Recovery Order proceedings initiated by him in January 2012, to recover the child when his mother over-held him and took him to Queensland.  He also seeks $1789 for flights and accommodation necessary to the recovery, lost wages at that time of $1104, and $200 for items of the child’s not returned by the mother.  The total is $19,937.30. 

2. Costs are determined under s 117 of the Family Law Act. The Court has discretion. There are matters though to which the Court shall have regard, and they are set out in s 117(2A) of the Act.

3. In this case, neither party is in receipt of legal aid.  The mother says she owes about $62,000 to her mother and stepfather in relation to previous legal fees.  Throughout the January 2012 and the subsequent trial proceedings she represented herself. 

4. Neither party is in what I would call a strong financial position. 

5. The father earns $43,000 gross per annum.  His wife earns $49,500 gross per annum.  They support themselves and the three children in their care, including the child.  The mother’s child support assessment is around $7 per week but she has paid nothing to the father since January 2012. 

6. The father and his wife are buying a home.  It is valued at about $515,000, and subject to a mortgage of $161,000, to which they pay $510 fortnightly. 

7. The father owes $8800 on his credit card and more than $90,000 to his solicitors in outstanding legal fees. 

8. He is a beneficiary under both his mother’s will, and after his very recent passing, his father’s will too.  Although his mother’s estate appears to be approximately £700,000, already almost £190,000 has been paid in taxes.  Her husband, it appears from the will, shall receive a bequest of £55,000 pounds.  Otherwise, it cannot be said with certainty as to what the father will receive but it seems that it will be some hundreds of thousands of pounds.

9. It was the paternal grandfather who had assisted him with the legal fees he has paid so far.  The father appears to be the sole beneficiary under his father’s will, the main asset of which is a term deposit of $340,000.

10. The mother says she has no home, no savings and only a very cheap car.  She has told me in the course of proceedings that she is a teacher, but she chooses, as I have noted, to work only part time as she likes to volunteer her skills to the church and community at other times.  She says she has a credit card debt of some $7444. 

11. Under s 117(2A) I need to consider the conduct of the parties to the proceedings, whether the proceedings were necessitated by the failure of a party to comply with the previous order, and whether either party has been wholly unsuccessful.

12. Those factors in this case, combined, lead to the stark conclusion that the mother failed to comply with the existing court orders.  The proceedings were necessitated solely by her actions in over-holding and taking the child to Queensland, without any just cause on my findings.  She was wholly unsuccessful in her attempt to in any way defend the Recovery Order. 

13. The appalling nature of her conduct is compounded when viewed against the context of her previous abduction of the child, and my clear criticism of her for that. 

14. Not only is the question of whether or not a party should be ordered to pay costs a discretionary one, so is the question of indemnity costs – indemnity costs being sought by the father in this case.  I am satisfied that in this case it is clear.  The mother’s conduct was such a flagrant breach of court orders that the justice demands that the father not be out of pocket at all on the Recovery Order proceedings. 

15. I should add that I have seen the costs agreement as I am obliged to do in a case involving indemnity costs.

16. I am satisfied that the full costs sought are reasonable.  The mother took no steps to challenge them, save to now say she has no proof.  I am satisfied too that, with one exception, the various other costs sought by the father, including air-fares, accommodation, lost wages and telephone calls are reasonable and should also be paid by the mother to him.  The exception is in relation to the $200 for items he said the mother did not return. 

17. She did, as she claimed, produce some items in court.  I cannot fairly determine what may or may not be owed in relation to what is in any event a very small sum. 

1. In relation to the recovery order proceedings the mother should pay the father the sum of $19,737.  Subject to any contrary submissions, it should be ordered to be paid within 60 days.

Costs for the Trial

1. That leaves the third issue which is the party/party costs sought in relation to the trial.  I need to take into account all the matters referred to above, but it does not necessarily mean that the result is the same. 

2. There are certain givens.  The costs have clearly been very onerous for the father.  He faces the expense of raising the child most likely without any financial assistance from the mother.  Her choice to have very little income is that, a choice, although realistically she is unlikely to earn more than a modest income even if working full time, and she certainly has no infrastructure or capital on which to draw, at least on the material as I have seen it.

3. Finally, it is also important to note as a given, that my decision after the trial supported the outcome that the father had sought, and not the outcome sought by the mother.  I rejected the arguments put by her as to the risk to the child in his father’s care. 

4. I take all that into account and decide that nevertheless I shall not make a further costs order against the mother.  It was an exquisitely difficult case, and although her argument as to risks was rejected, the consideration of whether or not to curtail the relationship between mother and son remained very complex, and the hearing was validly run to assist me in that difficult decision.  It is a decision that is obviously crushing to the mother.  Her sadness is palpable.  And, unless there is a significant change in her circumstances, the proceedings now are finite.  From the mother’s point of view, he has not had a guarantee of that order in the past.

5. As a result of other orders made this day, the mother will have some $27,000 that she must pay to the father.  I am not satisfied that it is a proper or reasonable exercise of my discretion in light of that, of the difficult issues at trial, the personally crushing decision for the mother, the finite nature of the proceedings, and the comparative financial position of the parties, to order that the mother pay any further costs.  So accordingly the orders that I need to make are as follows:

DISCUSSION

1.That the sum of $7,986 fixed by FitzGibbon SR on 24 November 2011 to be paid by the mother to the father, shall be paid by 4.00pm on 14 September 2012.

2.That the mother shall pay the father’s indemnity costs associated with the January 2012 Recovery Order proceedings fixed at $19,737 by 4.00pm on 14 September 2012.

3.That the father’s application for costs shall be otherwise dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 16 July 2012.

Associate: 

Date:  16 July 2012