Robinson and Farthing (No 2)

[2013] FamCA 792

FAMILY COURT OF AUSTRALIA

ROBINSON & FARTHING (NO 2) [2013] FamCA 792

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT: Ms Robinson

RESPONDENT: Mr Farthing

FILE NUMBER: MLC 8085 of 2010

DATE DELIVERED: 16 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE RESPONDENT: Richard Calley Family Lawyers

Orders

1. That the wife pay the husband's costs fixed in the sum of $7500.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Robinson & Farthing 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 8085  of 2010

Ms Robinson

Applicant

And

Mr Farthing

Respondent

REASONS FOR COSTS JUDGMENT

1. On 23 August 2013, I made final orders in an application for parenting orders brought by Ms Robinson (the wife) in which Mr Farthing (the husband) to those proceedings, was the respondent.

2. The husband opposed the re-litigating of final parenting orders that had been made on 18 November 2011 by the consent of the parties.

3. Having agreed with the husband and the Independent Children’s Lawyer that there was no basis to re-open the parenting proceedings, I dismissed the wife’s application. I then made an order that should any party seek costs, their application be made by written submission.  Any application had to be filed by 20 September and any response by 4 October.

4. The husband filed an application on 17 September 2013. No response was received to that application. The application for costs was endorsed as having been served on the wife’s solicitors on the record.

5. The wife’s application revolved around five issues:

   (1)    D (the child) is now exposed to parental conflict at changeover by virtue of the present orders;

   (2)    There is a lack of communication between the child and her mother during the time the child is with her father thereby warranting a reconsideration of the orders;

   (3)    The lack of communication between the parents is having an impact on decision-making such as to make equal shared parental responsibility unworkable;

   (4)    The father’s lack of support for the child’s gymnastics by the father justifies an alteration of the orders;

   (5)    There are particular views of the child (particularly about spending time with her father in February 2013) which justify a revisitation of the time allocated under the orders.

6. Each of those five issues was presented by the wife with evidence that she said justified a reconsideration of the orders.

7. In respect of (1), I found that there was no reason to re-litigate the changeover but, having regard to the issues raised by the wife, it would be more productive if the wife complied with the orders.

8. In respect of (2), I found that this application was really about the mother’s needs and that the basis of the 2011 orders remained current and effective.

9. In respect of (3), I found there was no basis to say that there had been a substantial change of circumstances.

10. In respect of (4), I found that gymnastics was nothing new.

11. In respect of (5), I found that the child’s views were really unknown other than that I could surmise that she would be concerned about the parental conflict.

12. Accordingly, based on those findings which were determined upon the submissions of the parties along with  the Independent Children’s Lawyer, it was unlikely that the 2011 orders would be varied in a significant way and to simply forensically test those disputed issues would be detrimental to the child.

13. I concluded it was in the child’s best interests that there not be a reconsideration of the issues and, in any event, there was not sufficient evidence to justify embarking on a hearing.

14. The husband’s submission sought costs “from 16 May 2012 to now”.  The sum claimed was $18,320.47.

15. In my view, it would not be appropriate for the Court to make an order for such a period. Apart from anything else, the order I made was directed to the discrete proceedings that I determined in August 2013.

16. It would seem that the time period that the husband was addressing included the various hearings before Bennett J and also contravention proceedings. As appeared from the Court record, there were proceedings and other documents after the application was filed by the wife. In some cases, there were orders for costs made in those other proceedings.

17. Rule 19.08 of the Family Law Rules provides that a party may apply for an order for costs either at any stage during a case or by filing an application in a case within 28 days after the final order was made.

18. In respect of the application before me, nothing I have read in the orders of Bennett J was to the effect that the parties’ costs were reserved. Absent a specific application within the rules, it would not be appropriate for me to deal with anything other than the costs associated with the discrete hearing I conducted.

19. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) in its simplest relevant terms provides that in proceedings under the Act, each party shall bear their own costs unless the Court is satisfied that there are circumstances that justify a departure from that principle.

20. In this case, the husband asserted that the justification for his claim for costs lay in the fact that between May 2012 and April 2013, the wife issued a total of seven applications. It was submitted that much of the information in the supporting affidavits had been fully canvassed in the proceedings that culminated in the 2011 orders. It was submitted that much of the material of the wife was repetitive and irrelevant and failed to provide independent objective evidence for the allegations being made. It was submitted that the application of the wife was ill-conceived and unmeritorious and its relentless nature was described as unreasonable.

21. The submission addressed the factors set out in s 117(2A) of the Act by saying that the wife was in a financial position to pay as she was a medical practitioner. In respect of the wife’s conduct, the matters earlier mentioned were canvassed.

22. Section 117(2A) requires the Court to contemplate a number of matters to which I shall turn if there is a conclusion that there is a justifying feature of the proceedings to depart from the principle that each party pay their own costs.

23. I agree with the submission of the husband that much of the material of the wife was repetitive and irrelevant to any application seeking to have the Court reconsider its earlier decision even if that earlier decision had been made by consent. The wife’s application was ill-conceived and, as I found, unmeritorious. The authorities going back to Rice and Asplund (1979) FLC 90-725 make clear the Court’s view about the importance of letting children have an opportunity to avoid being again drawn into litigation between their parents. To re-open any parenting case requires careful thought by a parent. If there is a finding that the approach taken was unmeritorious, as I have found here, there is a very good basis to say that there is a justification to depart from the principle that each party should pay their own costs.

24. The approach taken by the wife described by the husband as relentless and unreasonable, was conduct as a litigant rather than as a parent. I have little doubt that parents who have little or no communication with each other would complain and urge alteration to existing arrangements. But, in circumstances where that frustration boils over into litigation, the parent pursuing the change must be conscious of what the Court would consider justifies a re-opening of the parenting case. In this case, the wife did not do that. In that regard, her conduct warranting criticism was as a litigant rather than as a parent. I therefore find there are circumstances in this case that justify making an order for costs subject to the considerations that follow.

25. Having found a justifying feature, s 117(2A) requires a consideration of a number of factors. It is important to observe that an order for costs is not intended as some form of punishment but rather to compensate a party who has had to have been involved in the proceedings (at least to some extent) unnecessarily.

26. Here, the financial circumstances of the parties might be seen to be different but neither could be said to be impecunious or embarrassed about money. In that regard, there is no reason why the husband, even if he could afford to pay his own legal costs, should have to do so where he has resisted re-opening of the matter from the start.

27. It was not suggested that either party was in receipt of a grant of legal aid. 

28. I have already referred to the conduct of the parties in the proceedings. The wife persisted knowing the risks with what the husband was going to argue was a threshold issue.

29. The wife has been wholly unsuccessful in the proceedings.  There is also significance in the fact that the Independent Children’s Lawyer had adopted the position of supporting the husband on the same basis as the matters that I have found.

30. The husband set out his claim for costs in this case but the schedule sought a sum beyond what I consider discretely concerns the application I heard. I have used the figures relied upon by the husband on the basis that I have received no submission from the wife.

31. There were a number of matters that affected the determination of the case after it was filed in May 2012. I referred to them in my reasons as follows:

    On 9 May 2013, Bennett J held a telephone link and ordered that a mention set for 21 June be vacated and that the case be mentioned on 2 August. A timetable for the filing of affidavit material was then made. Her Honour then ordered pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) that a family consultant prepare an issues assessment to discuss matters about the parents’ ability to implement any parenting orders. According to the parties, the designated family consultant construed the order such as she was required to exclude any interview with (the child) and indeed that is what occurred. Absent any such interview, there was little objective evidence about what (the child) thought nor was it possible to put some of the many things the parents were saying about her and, each other, to (the child).

    On 2 August 2013, the matter was again listed before Bennett J. at which hearing, her Honour recused herself and adjourned the matter for allocation to another judge.

32. In respect of the first of those observations, I do not consider it appropriate to find that the matter was ready for trial. Her Honour was ordering the parties to attend upon a family consultant to have the opportunity to understand the impact of their litigation upon their child but also in the event that they still thereafter wished to litigate, they had to get their trial material together. In respect of the second observation, I understood her Honour recused herself in relation to a personal issue about the child’s school. Whilst that ultimately had nothing to do with this hearing, I do not consider it appropriate to have the costs for that period visited upon the wife. From what little I can glean from the Court record, it was the husband who took up her Honour’s invitation to consider an application that she not hear the matter.

33. Thus, the costs for which the husband has been unjustifiably required to incur concern the preparation of his affidavit material and various attendances thereafter relating to the hearing itself including the costs submissions.

34. Having read the schedule presented by the husband and using that, I have determined the costs on the basis set out above as $7500.

I certify that the preceding Thirty Four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 October 2013.

Associate: 

Date:  16 October 2013