Rosington and Rosington (No 3)

[2021] FamCA 21

FAMILY COURT OF AUSTRALIA

ROSINGTON & ROSINGTON (NO. 3) [2021] FamCA 21

FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children's Lawyer seeks that the mother and the father each pay half of their costs of the proceedings in equal shares – Where the father consents to paying one half of the costs of the Independent Children’s Lawyer – Where the mother contends that the father should pay her share of the costs of the Independent Children’s Lawyer – Where the Court finds that the father shall not bear responsibility for the whole of the costs of the Independent Children's Lawyer – Orders made for each party to bear their own costs.

Family Law Act 1975 (Cth) s 117(2A), 117(3)

APPLICANT: Mr Rosington

RESPONDENT: Ms Rosington

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 6654 of 2015

DATE DELIVERED: 28 January 2021

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Dealt with by written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Rogers submitted on behalf of the applicant

SOLICITORS FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Hodgson submitted on behalf of the respondent

SOLICITORS FOR THE RESPONDENT: Mills Oakley Lawyers

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:
Legal Aid

Orders

1. The Application in a Case filed by the father Mr Rosington on 11 September 2020 is dismissed.

2. The Response to Application in a Case filed by the mother Ms Rosington on 6 October 2020 is dismissed.

3. Within 60 days of the date of these orders, the mother pay a sum of $12,093.50 to Legal Aid New South Wales on account of the costs of the Independent Children's Lawyer.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rosington & Rosington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6654 of 2015

Mr Rosington

Applicant

And

Ms Rosington

Respondent

And

Independent Children's Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

1. The parties to these proceedings, Mr Rosington and Ms Rosington, engaged in lengthy and complex litigation in relation to property settlement and parenting issues over a period of approximately four and-a-half years.  Final orders in relation to financial issues were made by consent on 16 January 2018.  The parenting dispute was resolved by way of reasons for judgment and orders which I delivered on 31 July 2020.  The present proceedings concern applications in relation to the costs of the Independent Children's Lawyer ("the ICL") and the father in relation to the parenting trial.

2. The background facts to these proceedings are set out in my reasons for judgment dated 31 July 2020 and will not be repeated here.  It is noteworthy that the parties elected to engage in an eight day trial and numerous interlocutory applications in relation to parenting issues.

The costs application of the ICL

1. By an Application in a Case filed on 24 September 2020, the ICL sought orders that each party pay a sum of $12,093.50 on account of her costs.  On 29 October 2020 the father consented to such an order, in relation to his contribution to the costs of the ICL.  By an Application in a Case filed on 11 September 2020 the father sought inter alia an order that the mother reimburse him for the payment of $12,093.50.  In written submissions dated 19 October 2020, however, the solicitor for the father indicated that he no longer sought an order that the mother reimburse him for his share of the costs of the ICL.

2. By a Response to Application in a Case filed on 6 October 2020, the mother sought a dismissal of the application of the ICL that she make a contribution to her costs.  The mother sought also an order that the father pay the whole of the costs of the ICL.

3. In her affidavit of 6 October 2020, and by the written submissions of her counsel, the mother complained that the ICL "had aligned with the position of the Father".  This proposition embraced both the orders proposed by the ICL at the conclusion of the trial, her stance in relation to vacation of the original trial dates, the preparation of an updated expert report and access to various documents in relation to criminal charges pending against the mother.

4. I do not accept the submission that the ICL "aligned with the position of the Father".  At the conclusion of the trial, the ICL proposed orders to which the father proffered his consent.  The ICL at no stage endorsed the proposals of the father to the effect that the children should live with him and spend no time, followed by limited supervised periods, with the mother or that the twins be split between the parties.  I consider that the ICL sought to retain the original trial dates in the interests of the children.  The expert evidence left no room for doubt that these two troubled children required certainty as to their living arrangements.

5. In my view, it is simplistic for the mother to assert that her objection to subpoena was successful as against the father and the ICL.  On 29 March 2019 I ordered that the mother provide to the father copies of the bail information, bail acknowledgement form and the Court Attendance Notice.  I took the view that the father and the ICL had a legitimate forensic purpose in relation to access to these documents.  I upheld the objection to the production of the remaining documents sought pursuant to the subpoena to the New South Wales Police.

6. In my view, the fact that I made orders which differed from the proposal of the ICL does not provide the mother with immunity from any responsibility in relation to a contribution for these costs.  This approach ignores the valuable input of the ICL and her counsel into the conduct of a complex trial, which featured evidence from three expert witnesses.

7. The mother sought to rely upon the fact that she is solely responsible for the financial support of the children while they are in her care, in support of a dismissal of the costs application of the ICL.  In my view, this consideration does not assist the mother.  With the benefit of legal advice, the mother elected to enter into consent arrangements in relation to financial issues between the parties.  These arrangements included a Child Support Agreement which provides for these current arrangements.

8. Similarly, I take the view that the mother's liability for costs in relation to the criminal proceedings does not assist her in relation to the present application.  There was no evidence as to the source from which the mother proposes to pay her anticipated costs of $2.5 million, nor any limit to the availability of these funds.

9. Section 117(3) of the Family Law Act 1975 (Cth) (“the Act”) empowers the making of an order for payment of the costs of an ICL by each party to parenting proceedings, in such proportion as the Court considers just in all of the relevant circumstances. Accordingly, consideration must be given to those factors set out in section 117(2A) which are relevant to the particular proceedings. I will now refer only to those factors set out in section 117(2A) which are relevant to the present application.

10. The only evidence as to the current financial position of the mother was the reference in her affidavit and written submissions to her paid costs of the parenting proceedings in a sum of $447,245 and her anticipated fees with respect to the criminal trial of $2.5 million.  On this basis, I conclude that the mother's current financial circumstances permit her to make a contribution to the costs of the ICL.

11. The written submissions of counsel for the mother identified three factors which were said to "mitigate against an order for costs in favour of the ICL".  I reject the suggestion that "the conduct of the ICL" operates in favour of the mother against an order for contribution to her costs.  As noted above, I do not accept that the ICL "aligned with the position of the Father" and I do not consider the fact that the final orders differed from her proposal of itself pertains to the issue of costs.  I have set out above my conclusions in relation to the mother's liability for costs of the criminal proceedings and the support of the children while they are in her care.

12. Accordingly, I conclude that relevant circumstances warrant an order that the mother pay one-half of the costs of the ICL, such being a sum of $12,093.50.  I will consider below the question whether the father should bear sole responsibility for the costs of the ICL.  This determination will be made in the context of the application of the father that the mother should pay the whole or part of his costs of the parenting proceedings.

The father's application that the mother pay his costs

1. The father sought the following orders in relation to costs:

   1.That the mother pay the father's costs of and incidental to the parenting proceedings from 30 July 2019:

   1.1      On an indemnity basis in the sum of $207,097.44;

   1.2In the alternative and without concession, on a two-thirds ordinary basis in the sum of $138,064.82

   1.3In the further alternative and without concession, on the basis of the scale in accordance with the Family Law Rules as agreed or assessed.

   2.That in the alternative to Order 1 and only in the event that the Court is not minded to make Order 1, that the mother pay the father's costs of and incidental to the parenting proceedings from and including 14 May 2020 to 30 June 2020:

   2.1      On an indemnity basis in the sum of $89,395.55;

   2.2In the alternative and without concession, on a two-thirds ordinary basis in the sum of $59,596.94;

   2.3In the further alternative and without concession, on the basis of the scale in accordance with the Family Law Rules as agreed or assessed.

   3.That such funds paid in accordance with Order 1.1, 1.2 or 1.3 or 2.1, 2.2 or 2.3, above be paid by the mother to the father or as he nominates within 14 days from the date of the making of this Order.

   4.That the mother pay the father's costs of and incidental to this costs Application in a sum fixed by the Court, within 14 days from the date of this Order, or in the alternative, as agreed or assessed, within 14 days of agreement or assessment.

   5.That the mother pay, without contribution from the father, the costs of the Independent Children's Lawyer of and incidental to the parenting proceedings in such amount as sought by the Independent Children's Lawyer or in the alternative in such amount as agreed or assessed between the mother and the Independent Children's Lawyer, such payment to be made within 14 days of the date of agreement or assessment or the date of this Order (whichever is applicable).

2. The father's solicitor set out his position in relation to costs in a letter dated 3 August 2020, which referred to the following offers of settlement:

   Our client made during the course of the proceedings the following offers:

No.	Date of Offer	Terms of Offer
30 July 2019	-  Equal shared parental responsibility; -  5 nights per fortnight with our client; -  50/50 holiday time; -  Special occasion time; -  Children live with father if mother sentenced to jail time.
21 January 2020	-  Equal shared parental responsibility; -  5 nights per fortnight with our client; -  Staged approach to holiday time with 50/50 holiday time commencing 2021; -  Special occasion time.

8 May 2020

-  Equal shared parental responsibility;

-  B to live with our client and spend 4 nights per fortnight with your client;

-  C to live with your client and spend 4 nights per fortnight with our client;

-  50/50 holiday time;

-  Special occasion time;

-  Children live with father if mother sentenced to jail time.

11 May 2020

-  Equal shared parental responsibility;

-  Block of 5 nights per fortnight with our client;

-  50/50 holiday time;

-  Special occasion time;

-  Children live with father if mother sentenced to jail time.

Of course, offers of settlement are but one relevant consideration set out in section 117(2A).

1. In my view, the interests of justice require that each of these offers be considered in context.  The reasonableness or otherwise of the mother's rejection of these offers should be assessed with regard, inter alia, to the expert evidence and the time which the children had spent with the father at the date of each of these offers.  In my view it would be simplistic, and potentially unjust, to have regard to these settlement offers solely by comparison to the orders made after the trial.

2. Between December 2015 and April 2019 the children spent supervised time only with the father.  In approximately September 2015 the father was charged with offences including "recklessly causing grievous bodily harm" and "assault occasioning actual bodily harm" in relation to the mother and Mr Q.  Conviction in respect of these charges carried a real prospect that the father would be sentenced to a term of imprisonment.  On 28 February 2019 the father was sentenced to imprisonment for a term of one year and ten months, which he was permitted to serve by way of an Intensive Correction Order.

3. The children began to spend unsupervised time with the father in April 2019, after a Reportable Intensive Family Therapy ("RIFT") session conducted by Dr X on 25 to 28 March 2019.  This therapy was recommended by the single expert, Dr EE, in her second report dated 10 October 2018.

4. In her first report of 25 August 2016, Dr EE recommended that the children spend supervised time only with the father for approximately the next 18 to 24 months.  Dr EE recommended also that the father undertake "a further psychiatric assessment, to exclude the presence of a Bipolar Disorder …".

5. Accordingly, the father's offer of settlement of 30 July 2019 would see the children immediately begin to spend five nights per fortnight in his care after a period of some four years during which they saw him only for supervised day time.  Additionally, the father's offer required the mother to consent to an order that the children live with him in the event that she was sentenced to a term of imprisonment.  After the trial I declined to make such an order, as I considered that "a number of variables militate against making such an order at this time".  I noted that "the orders which I will make are designed in part to prepare the children for such an outcome".

6. The father's offer of settlement of 21 January 2020 came some four months after the Senior Registrar made an interim order for unsupervised time on each alternate weekend and every Wednesday evening.  The children spent no time with the father between July and September 2019, after difficulties arose and Dr X advised the parties to await a further RIFT intervention.

7. In her oral evidence at trial, Dr X described the process by which the children ceased to spend time with the father in July 2019.  She said:

   Pretty much against my advice, [the father] included Ms RR and the children at arriving at Mum's house.

   She added that the father:

   wanted his new family constellation to be included;  could not see that that might be provocative ... and shortly after that things fell down pretty quickly.

   Dr X said also of the father:

   Wanting his partner to go along and the children was just provocative.  I really tried to show him how that caused our positive beginnings to go off track ...

8. In November 2019 the mother made unilateral arrangements for B to consult with a child developmental paediatrician and a psychologist.  The mother put these arrangements in place after B allegedly expressed suicidal thoughts and a desire to stab people.

9. A resolution on the basis of this offer, would see an immediate increase for the children in time spent with the father from two to five nights per fortnight.  This change would occur after a three month period of no time which, in the expert opinion of Dr X, came about due to conduct on the part of the father which lacked child focus.  Further, the mother had formed the view that B required professional intervention in relation to his disturbed behaviour.

10. The father's settlement offer of 8 May 2020 provided for B to live primarily with him and C with the mother.  Dr EE and Dr X respectively described this proposal as "disastrous" and "devastating".  Dr X added:

    I would probably extrapolate to say that it would turn into what I would call a red team/blue team type of family that whoever is with dad would then take up dad's side and whoever is with mum would take up mum's side probably to the point of complete estrangement between them.

    Dr EE agreed that such a regime probably would create a situation of two completely estranged family groups.

11. The father's offer of 8 May 2020 repeated a requirement that the mother consent to an order that the children live with him in the event that she was sentenced to imprisonment.  I note again that I declined to make such an order.

12. The father's offer of settlement of 11 May 2020 proposed that the children live with the mother and spend five nights per fortnight and half of all school holidays in his care.  This offer repeated again the requirement that the mother consent to an order that the children live with him in the event that she is sentenced to a term of imprisonment.

13. On 12 May 2020 the mother offered to settle the proceedings on the basis that the children live with her and spend time with the father for three nights per fortnight until the commencement of Term 1 2021.  Thereafter, the children's time with the father would increase to four nights per fortnight.  The mother's offer contained a provision for the children to spend half of all school holidays with the father.

14. In her oral evidence at trial Dr EE opined that an immediate introduction of a five night per fortnight regime would likely be a better option than an initial arrangement of four nights with a subsequent increase to a nine/five split arrangement.  This expert opinion was available to the mother only when Dr EE gave this oral evidence during the trial.

Consideration

1. Section 117(2A) provides as follows:

   (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.

   I will refer only to those considerations which are relevant to the present proceedings.

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

1. There was no direct evidence as to the current financial circumstances of either party.  As noted above, they have both spent hundreds of thousands of dollars on legal costs and disbursements in the course of this litigation.  As further noted above, I do not take the view that the provisions of the Child Support Agreement and the mother's liability for costs of the upcoming criminal trial assist her to establish hardship for present purposes.

(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

1. In terms of the conduct of the parties to the proceedings, it is relevant to note the position of the father at the commencement of the trial.  In a Minute dated 10 March 2020 the father proposed, inter alia, that the children live with him and spend no time with the mother for a period of six weeks.  Thereafter they would spend supervised day periods only with the mother for a period of approximately 20 weeks.

2. Dr EE described this proposed arrangement as "highly undesirable" and opined that such a complete lack of contact with the mother for six weeks "would just add to the trauma" of a change in primary residence.  Dr X described as "devastating" the consequences for the children of this proposal.

3. At all stages in the litigation, the father persisted with his application for a change in primary residence.  He was wholly unsuccessful in the various permutations of this application.  Both Dr EE and Dr X offered no support whatsoever for his proposal of a complete cessation of time with the mother.  The father abandoned his proposal to separate the twins only after he heard strong criticism of himself and major concerns as to the consequences for the children from both Dr EE and Dr X.

(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

1. I have referred above to the father's offers of settlement in the context in which these proposals were put to the mother.  In my view, the mother was entitled to consider and reject these offers on the basis of the children's experience of time in the care of the father and the state of the expert evidence at each relevant date.  As observed above, the circumstances which pertained at the time of each offer relate directly to the reasonableness or otherwise of the mother's acceptance or rejection of these proposals.

Conclusion

1. For these reasons, I conclude that the mother should bear no liability for the costs of the father.  At the same time, I see no valid basis for the father to bear responsibility for the whole of the costs of the ICL.  The litigation was protracted by complications on both sides and complex issues required determination.  It seems to me that justice and equity require that each party bear his and her own costs and contribute equally to the professional fees of the ICL.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 28 January 2021.

Associate: 

Date:  28 January 2021