Rixon and Brenner

[2009] FamCA 576

FAMILY COURT OF AUSTRALIA

RIXON & BRENNER [2009] FamCA 576

FAMILY LAW – COSTS

FIRST APPLICANT FATHER: Mr Rixon

RESPONDENT: Ms Brenner

SECOND APPLICANT INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: PAF 1478 of 2005

DATE DELIVERED: 11 May 2009

PLACE DELIVERED: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 11 May 2009

REPRESENTATION

SOLICITOR FOR THE FIRST APPLICANT / FATHER: Mr Wahhab

SECOND APPLICANT / INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

RESPONDENT: No appearance by or on behalf of Ms Brenner

Orders

1. The respondent mother pay the first applicant father’s costs of and incidental to these proceedings fixed on an indemnity basis at $268,046.12.

2. Pursuant to Rule 19.50 of the Family Law Rules 2004 it is certified that this matter reasonably required the attendance of Counsel and Senior Counsel.

3. The respondent mother meet the whole of the costs of the second applicant Independent Children’s Lawyer assessed in the sum of $12,680.

4. The mother pay the father’s costs of and incidental to this application for costs in the sum of $3,300.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 1478 of 2005

MR RIXON

First Applicant father

And

MS BRENNER

Respondent

And

LEGAL AID COMMISSION OF NEW SOUTH WALES

Second Applicant Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Before the Court are two applications for orders for costs arising out of contested proceedings between the mother and the father concerning parenting orders in relation to their son.  The proceedings were lengthy and I delivered a judgment in the matter which I refer to, in part, in this judgment.  The application firstly before the Court is that of the father seeking an order that the mother pay his costs on an indemnity basis in the amount to $268,046.12, or in the alternative that his costs be met on a party and party basis assessed at $163,227.67.

2. In addition, the father seeks an order that the mother pay the totality of the Independent Children's Lawyer's costs in the sum of $12,680 and the costs of his application for costs assessed at $3,300.  The father seeks certification for senior counsel and I indicate that I will give a certification for both counsel and senior counsel.

3. The father filed in support of his application an affidavit by his solicitor, Mr Wahhab, concerning various matters.  Tendered to the Court today are exhibits demonstrating that the mother, through service of documents in accordance with directions made by this Court upon her mother, is or ought to be aware of the proceedings.  The evidence previously before the Court was that the mother maintains contact with her mother in the United Kingdom and, indeed, speaks to the child when the child is visiting his grandmother.

4. I, accordingly, intend to proceed to determine the application.

5. There had been an issue before the Court as to whether the mother needed to have a case guardian appointed for the purpose of these proceedings, however, on the evidence tendered to the Court from the files of the mother's general practitioner and in the absence of any contrary suggestion from the mother or anybody else, I find that the mother does have the capacity to deal with these matters before the Court.

6. Orders for costs are, of course, a discretionary matter and the relevant section is section 117 of the Act.  Section 117 requires me to take into account a number of matters in relation to the making of an order for costs.  I intend first to address the question of whether or not there should be an order in this case for indemnity costs.  Indemnity costs are not frequently awarded and only in circumstances on the most egregious conduct of a party to proceedings.

7. Costs are not awarded on the basis that they are punitive, but on the basis that they are compensatory.  The proceedings before this Court were ones in which the mother's conduct was, in a number of respects, quite egregious.  Facts were fabricated, allegations were fabricated in the evidence tendered by the mother before the Court, orders were breached and undertakings were breached.  The proceedings might never have been commenced had it not been for the mother's failure to abide by orders made in the United Kingdom and to abide by undertakings which she had there given.

8. The father was left with no alternative but to bring proceedings in order to ensure that his son had a proper relationship and ongoing relationship with him.  In all respects his steps were measured, reasonable and appropriate.  The mother, on the other hand, in fact, in the false allegations she brought before this Court, significantly caused a waste of time and an increase in the father's costs by reason of that waste of time.  In addition, her general conduct in not complying with orders is one of the things that I can take into account in the provisions of section 117(2A).

9. Whilst it is only in egregious circumstances that one does make an order for indemnity costs, I refer and incorporate into this judgment my judgment in the proceedings and I believe that that judgment reflects the mother has, in fact, been in a situation where she has caused costs far beyond that ordinarily might have been involved in the determination of these matters.

10. In the circumstances, I propose to accede to the order for indemnity costs sought.  I propose to agree that indemnity costs are appropriate.  I have to take into account all the matters under section 117(2A).  They include the financial circumstances of the parties to the proceedings.  It appears from the evidence before the Court that the father's financial position has significantly deteriorated with the downturn in the economy and the availability of work to him.

11. The mother's current financial position is not known.  She has declined to participate in the proceedings.  One assumes that there is nothing she wishes to put before the Court of her current financial position.  Whilst I am obliged to take into account the financial position of each of the parties to the proceedings, it is but one of a number of factors to be taken into account.  Neither party in these proceedings is in the receipt of Legal Aid, although the child is represented in the proceedings by the Legal Aid Commission of New South Wales who met the costs of the child's representation through its in-house solicitors.

12. The significant issues, I think I have adverted to in relation to the conduct of the mother and the extension of the proceedings by reason of that conduct.  The mother misled the United Kingdom Court which made orders in relation to parenting and relocation, namely, that she would act in a way which supported the relationship and the ongoing relationship between the child and the child's father.  And the term that she there used was that she would conduct herself with positivity in relation to the father.  This was far from the truth.  These proceedings were occasioned by that breach of that undertaking in part.

13. The mother acted, since the making of the United Kingdom orders, in a way which was designed to prevent the child from having a loving and close relationship with the father, and although to some extent she complied with the letter of some of the orders that had been made there were those that she did not comply with and certainly she complied with very few of them in spirit.

14. The conduct of the mother in that regard is, I think, fully set out in my judgment already given, and I do find that these proceedings were necessitated by the failure of the mother to comply with orders and undertakings.  The father was substantially successful in procuring the orders that he sought.  The mother was not successful in procuring the orders that she sought.

15. It seems to me that the assertion by the father’s attorney, "that the mother and her husband used these proceedings as a blunt instrument by raising false allegations against the father with a view, in effect, to limiting the father's time with the child and, perhaps, to ultimately disqualify the father from spending time with the child," is an accurate reflection of what had happened in this case and I agree with the submission.

16. I have before me also an application by the Independent Children's Lawyer for an order for costs.  It is a proper case in which to make an order for the costs of the Independent Children's Lawyer, but in line with the arguments raised and my view of them in relation to the question of an indemnity order, I order that the mother meet the whole of the costs of the Independent Children's Lawyer which I will assess as requested by him in the sum of - - -

    RECORDED  :   NOT TRANSCRIBED

17. - - - $12,680.

18. The father seeks costs of this application for costs.  They have become somewhat prolix by reason of the mother avoiding involvement in them and the necessity to provide a means whereby the matter can be brought to her attention.  I think the application in all the circumstances is reasonable and I order that the mother pay the father's costs of and incidental to this application for costs in the sum of $3,300.

    RECORDED  :   NOT TRANSCRIBED

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  11 May 2009