Roche and Drury

[2017] FCCA 57

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROCHE & DRURY [2017] FCCA 57

Catchwords:
FAMILY LAW – COSTS – Application by respondent for costs on an indemnity basis of discontinued Contravention proceedings – considerable delay in hearing Contravention application but delay not attributed to the applicant – no circumstances to justify an order for costs.

Legislation:

Family Law Act 1975 (Cth), ss.117(1), 117(2)

Applicant: MS ROCHE

Respondent: MR DRURY

File Number: LNC 687 of 2011

Judgment of: Judge McGuire

Hearing date: 23 November 2016

Date of Last Submission: 23 November 2016

Delivered at: Launceston

Delivered on: 2 February 2017

REPRESENTATION

Counsel for the Applicant: Ms A Trezise

Solicitors for the Applicant: Andrea Trezise Barristers & Solicitors

Counsel for the Respondent: Mr M Foster

Solicitors for the Respondent: Murdoch Clarke

Counsel for the Independent Children's Lawyer: Ms J Higgins

Solicitors for the Independent Children's Lawyer: Bishops Barristers & Solicitors

ORDERS

1. That the mother’s application for costs of and incidental to the father’s discontinued Contravention application be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 687 of 2011

MS ROCHE

Applicant

And

MR DRURY

Respondent

REASONS FOR JUDGMENT

1. This is an application by the respondent mother that the father pay her costs on an indemnity basis in respect of the father’s discontinued Contravention application.

2. The history of the matter and litigation generally between these parents is unfortunately lengthy and convoluted. 

3. The parties have two children being X (aged 10 years) and Y (aged 8 years). Final orders were made by consent on 26 March 2014 providing inter alia that X and Y live with the mother, spend time with the father and a specific order that they attend mainstream schools.

4. The father brought a Contravention application on 27 November 2014 alleging a number of counts of the children not attending school and the mother not advising the father of their absences contrary to order 7 of those final orders.

5. On 19 March 2015 the father filed an amended Contravention application adding further particulars of the previous complaint and also alleging a count of the mother not making the children available to him.

6. On 19 May 2015 the mother filed an Application in a Case seeking:

   “Dismissal of amended application – contravention filed
   19 March 2015'.

7. Interestingly, however, the court file discloses a transcript of 17 April 2015, and obviously predating the mother’s interlocutory application, of a mention of the father’s Contravention application before Judge Roberts where his Honour says at page 2 line 6:

   Thank you Mr Foster, I think my recollection is the adjournment was for you and your client to confer to see whether he's proceeding with the contravention application or some other route.

8. At line 20 of that transcript Mr Foster responds:

   Yes. And my instructions are your honour, that my client would prefer to proceed down the contravention process rather than initiate fresh parenting proceedings, and he won't seek the wholesale changing parenting that sought – that's foreshadowed in the affidavit – in his affidavit, so it will be just – it will be an ordinary contravention process, so to speak.

9. I understand this conversation between counsel and bench to be at the crux of one of the two arguments which ground the mother’s costs application now before me.  That is, Ms Trezise for the mother argues that the father's Contravention application was bought with the primary intention of revisiting the substantive parenting orders made and
   26 March 2014 and is therefore an abuse of process.

10. I was directed to the transcript of evidence before Judge Roberts on
    24 August 2015 which shows lengthy argument on this point. It is clear that the mother’s application for summary dismissal was listed and argued before his Honour on that day. On page 2 line 1 Ms Trezise says:

    Yes.  If it please, I appear for the respondent mother in relation to the substantive proceedings which are the application contravention.  She's the applicant in relation to the application in a case listed today… the application in a case was filed on 19 May 2015.

11. Ms Trezise proceeded to argue before his Honour that the father's Contravention application was an abuse of process in that its motivation was to seek a change of parenting orders without utilising the proper initiating application and court process thereby avoiding any argument under the principles in Rice v Asplund.

12. Argument proceeded over a considerable time before his Honour. Mr Foster confirmed that his client intended to prosecute his Contravention applications and argued the prima face merit. His Honour adjourned at 11:29 a.m. on that day and gave ex-tempore judgment at 12.18 p.m. Unfortunately, the court file does not disclose his Honour’s Reasons and I assume that those Reasons were not taken out.  It is clear from his Honours’ orders made that day, however, that the mother’s application seeking summary dismissal of the father's Contravention application was unsuccessful.  Those orders state:

    1.That by 30 October 2015 MR DRURY (“the father”) file a further Amended Contravention Application setting out no more than 5 alleged contraventions of the Orders of 26 March 2014.

    2.That by 30 October 2015 the father file all Affidavits upon which he intends to rely in support of the further Amended Contravention Application referred to in Order No. 1 hereof.

    3.That the listing of this matter for a defended hearing on Monday 1 February 2016 is vacated.

    4.That the matter is otherwise adjourned for hearing of the further Amended Contravention Application at 10.00 a.m. on Friday 11 December 2015.

13. Again, although his Honour's orders are silent as to the mother’s Application in a Case, it is clear to me that the application was disposed of on that day unfavourably to the mother.

14. The mother’s application for costs now before me argues as its first limb again that the father’s Contravention application was an abuse of process aimed at avoiding the hurdle of Rice v Asplund when primarily seeking a revisiting of the substantive parenting orders. Two significant factors have occurred since his Honour's determination of this issue in August 2015. Firstly the father’s application has been discontinued.  Secondly, and perhaps compounding the mother’s original suspicions, the father has filed an application initiating proceedings seeking parenting orders in his favour. Nevertheless, I remain of the view that his Honour determined in August 2015 whether or not the father’s Contravention application was an abuse of process.  I am not persuaded that, in these particular circumstances as set out below, that the mere discontinuance of that application should cause me to revisit his Honour's consideration of that point. In any event, the Contravention application has not been heard and I am unable to say whether it was unmeritorious in its allegations. Consequently, I am of the view that this issue has been heard and determined by his Honour and it is not proper for me to ‘review' his Honour's decision even if under the heading of a costs application.

15. Secondly, the mother argues for her costs on the basis of the father now discontinuing his Contravention application without proceeding to its prosecution.

16. The relevant chronology here is important on the parties’ arguments.  Firstly, on 23 August 2016 the mother's solicitors wrote to the father's solicitor by email saying inter alia:

    In light of the circumstances and my clients unclear prognosis I am instructed to enquire as to whether your client would be willing to discontinue his Application – Contravention on the basis of each party pay their own costs.

17. The court file shows that the father's Contravention applications were the only proceedings on foot at the time of the mother’s solicitor’s email letter of 23 August 2016.

18. On 29 August, 2016 the father filed, through his solicitors, an Application Initiating Proceedings seeking parenting orders. That application and its supporting affidavit were both sworn 22 August 2016.  I have before me no explanation as to why those documents, sworn one day before the mother’s solicitor’s email, were not filed for a further seven days or five clear working days?  However, given that they were clearly prepared by and settled by a solicitor and officer of the Court, I accept that they were executed on the 22 August 2016.

19. On 30 August 2016, seven days after receipt of the mother’s solicitors email, the father’s solicitors responded by ordinary mail advising inter alia:

    Even though our client is the father of the children your client provides no information about her health and circumstances and no information at all about the way in which these matters are impacting on her present capacity to care for the children or her capacity in the future.

    Given these circumstances our client resolved recently that in the best interests of the children he had no alternative but to ask the court to review the current parenting orders and we enclose a copy of his application and supporting affidavit which has been filed with the court…

    We acknowledge that contravention proceedings have proved to be an unsuccessful means of addressing the concerns about the children which we have mentioned above, and we are instructed to accept your request to file a Notice of Discontinuance on the basis that no costs would be sought by your client. We have done this and a copy is enclosed.

20. The Notice of Discontinuance is dated 29 August 2016 and filed with the Launceston Registry on 1 September, 2016.

21. By email letter marked 'urgent' and dated 31 August 2016, the mother’s solicitors respond inter alia:

    My letter to you of 23 August 2016 was put on the basis that court proceedings be discontinued. I have now received your letter of 30 August 2016 which makes it clear that your client, prior to the date of my letter to you, had instructed you to file an Initiating Application (Family Law) such as to continue the court proceedings.

    I have written to my client today. Pending receipt of my client’s instructions, I seek that you not proceed to file the Notice of Discontinuance as I doubt that my client would now agree not to pursue a costs order in relation to the filing of the Notice of Discontinuance in relation to the application – contravention where your client is pursuing other proceedings before the Federal Circuit Court of Australia.

    Given that it was obviously your clients intent prior to my letter to you of 23 August 2016 to pursue court proceedings, I now need to obtain my client’s instructions as to whether she will or will not pursue a costs order in the event that a Notice of Discontinuance is filed by your client in relation to the application – contravention.

    I do not intend to file the Notice of Discontinuance signed by you and dated 29 August 2016 as enclosed with your letter.  I note that as at 31 August 2016 you have not filed a Notice of Discontinuance and request that you refrain from doing so, other than on the basis that my client may pursue a costs order.

22. I have some sympathy for the mother's predicament.  However, she is not favoured in this application for costs by the chronology or the language in the letters between solicitors (although I stress that the only proceedings on foot known to the mother’s solicitors at the time of the email of 23 August 2016 were the long-running Contravention proceedings and it was not to be known by the mother’s solicitors that the father had coincidently signed an Initiating Application and supporting affidavit on the very day before the mother’s solicitors email letter of 23 August 2016).

23. Nevertheless, strictly speaking, the mother’s solicitors letter of 23 August 2016 references in particular the Contravention proceedings and (understandably) does not refer to the more generic term 'court proceedings' as claimed in the mother’s solicitors second letter of 31 August 2016. That offer, as particularised, was purported to be accepted by the husband’s solicitor’s letter of 30 August 2016 apparently sent by ordinary mail with the Notice of Discontinuance filed on 1 September 2016.

24. The mother’s 'offer'  was purported or anticipated in its withdrawal by her solicitor's urgent email of 31 August 2016 being the day before the filing of the Notice of Discontinuance. Consequently, on a purely contractual basis, I am prepared to accept Ms Trezise’s email as withdrawing the offer prior to its acceptance which finalised by the filing of the Notice of Discontinuance on the following day.  This, however, leaves the issue of costs of the discontinued Contravention application alive.

25. Matters of costs are dealt with under section 117 of the Family Law Act 1975 (“the Act”) which provides:

    (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA,117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

    (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

    (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

    (a)the financial circumstances of each of the parties to the proceedings;

    (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

    (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

    (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

    (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

    (g) such other matters as the court considers relevant.

26. Argument before me centred on sub-paragraphs (c), (e) and (f).  The father's Contravention application in its original form was filed as long ago as November 2014. It has not been prosecuted to its conclusion. However, I cannot lay blame in this respect on the father. In the intervening time, the mother brought and unsuccessfully prosecuted an application for summary dismissal. It appears from the transcripts and his Honour's orders that his Honour directed, under protest from the father’s counsel, a limitation of counts to be prosecuted. The matter was adjourned on occasions by reason of the mother’s illness.  I am satisfied generally that the father sought to prosecute his application and was not the instigator of the delays which occurred.

27. The Contravention application was effectively finalised by its Notice of Discontinuance. It obviously follows that the mother was caused cost by reason of that discontinuance and hence non-prosecuted application. Nevertheless, and despite some suspicions as to opportunism by the father, the Notice of Discontinuance was filed contemporaneously with the mother’s offer (dealt with above) and after the father took the alternative to bring fresh proceedings. I am unable to determine, therefore, that the father’s application was unmeritorious given it having never been prosecuted and tested. I do note, however, his Honour’s rejection of the summary dismissal argument and the continued assertion by the father's counsel of merit in the alleged Contravention counts.  The delays in hearing the father’s Contravention application had been lengthy and, as I have found, not at his instigation.  It is clear that the mother’s health has worsened during the course of these delays and it is conceivable that this might cause the father to consider such to constitute a change in circumstances and hence ground his fresh application.  In all of those circumstances it is not open for me to find any malafides in the father’s course of action.

28. In all of these circumstances, I am unable, pursuant to s117(2) of the Act to find circumstances that justify an exercise of discretion to make a costs order away from the general Order in sub-section (1).

29. The application for costs will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  2 February 2017