Samson and Sandoval
[2011] FMCAfam 1538
•23 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMSON & SANDOVAL | [2011] FMCAfam 1538 |
| FAMILY LAW – Application for divorce – application for divorce discontinued – application for costs – substantial history of domestic violence. |
| Family Law Act 1975, ss.117, 48, 4 Criminal Procedure Act 1986 (NSW), s.279 Federal Magistrates Court Rules 2001, Schedule 1 Family Law Rules 2004, Schedule 3 |
| Casley & Casley (Costs) (2010) FamCAFC Re JJT; Ex parte Victoria Legal Aid (1998) Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited; Cussons Pty Limited v Colgate-Palmolive Company and Colgate-Palmolive Pty Limited [1993] FCA 536; (1993) 46 FCR 225 (10 November 1993) |
| Applicant: | MR SAMSON |
| Respondent: | MS SANDOVAL |
| File Number: | PAC 3384 of 2011 |
| Judgment of: | Harman FM |
| Hearing date: | 23 November 2011 |
| Date of Last Submission: | 23 November 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 23 November 2011 |
REPRESENTATION
| Solicitors for the Respondent: | Ms Jobson - Women's Legal Service NSW |
ORDERS
The husband is to pay the wife’s costs of and incidental to these proceedings and assessed in the sum of $3,500 to be paid no later than 4pm 23 December 2011.
The husband is to pay the costs as ordered above directly to the Women’s Legal Service New South Wales, PO Box 206 Lidcombe, New South Wales, 1825 and payment by the husband to the Women’s Legal Service shall be sufficient of his obligation under the above orders.
THE COURT NOTES THAT:
The Application for Divorce filed 27 July 2011 has been discontinued by Notice of Discontinuance filed 15 November 2011 and accordingly such application is no longer on foot.
The Court is satisfied that on the basis of the material before it that separation between the parties occurred no earlier than 10 July 2011 and accordingly any application for divorce must be filed no earlier than 11 July 2012.
In the event that costs have not been paid by the Husband by 4pm 23 December 2011 that:
(a)Interest will accrue upon that sum at the rate prescribed by the Family Court Rules 2004 until paid in full; and
(b)The wife will then be entitled to make immediate application for enforcement such application to be made to this Court.
IT IS NOTED that publication of this judgment under the pseudonym Samson & Sandoval is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3384 of 2011
| MR SAMSON |
Applicant
And
| MS SANDOVAL |
Respondent
REASONS FOR JUDGMENT
The proceedings before the Court today arise out of an Application for Divorce filed by the Applicant husband on 27 July 2011.
The Respondent wife, Ms Sandoval, filed a Response to the Divorce Application on 25 August 2011.
The Application first came before the Court on 26 September 2011 on which date the Sessional Registrar, being devoid of jurisdiction, the matter then being contested and not part of the delegation of authority to Registrars, transferred the proceedings for hearing and determination before Henderson FM on 2 November 2011.
On that date Ms Jobson appeared with the Respondent and the Applicant appeared in person. The proceedings could not be dealt with on that day for reasons that are not apparent from the file and were adjourned to today for contested hearing. The matter was listed at 9.30am. It is now 11.45am or close to it.
Prior to today’s date a Notice of Discontinuance was filed by the husband purporting to discontinue his Application before the Court. That notice was filed with the Court on 15 November 2011. There is no proof of service.
The wife has appeared today with her legal representative for the purpose of seeking an order for costs in the sum of $3,500.
It is not necessary for me to make any formal order dismissing the Application, as its discontinuance brings to an end that Application. However, the Response before the Court, in the unusual circumstances of discontinuance, cannot and need not be prosecuted, as the net effect of the Response is to seek an order for dismissal of an Application which is no longer on foot.
I do propose, however, to make orders and notations today which will have the effect of signalling to the husband that he should refrain from making any further application for divorce until such time as a period of not less than 12 months, based on the wife’s allegation of the date of separation, has passed and so as to avoid the need for any further disruption or inconvenience for these parties.
The Application for Costs is properly made. On the basis of s.117 of the Family Law Act 1975 applications for costs are not automatically granted and do not “follow the cause” as they do in some jurisdictions.
Section 117 of the Act establishes the general principle, in s.117(1), that each party to proceedings under the Act should meet their own costs although subject to the reservation of a general discretion in s.117(2) to make an order for costs where the Court is of the opinion that there are circumstances that justify it in doing so.
The principle judgment dealing with the interpretation and interaction of ss.117(1) and (2) is that of O’Ryan J sitting as the Full Court of the Family Court in an appeal from a Federal Magistrate in the decision of Casley & Casley (Costs) (2010) FamCAFC 189. Commencing at para.12 thereof, his Honour refers to the High Court’s earlier determination in Re JJT; Ex parte Victoria Legal Aid (1998) wherein their Honours stated:
“Section 117(2) of the Act referred to costs in the conventional sense and thus the payment by one party to litigation of money by way of partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages.”
His Honour went on to clarify as follows:
“Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order.”
In this case, I must consider the evidence that is available with respect to the matter and determine whether there is a justifying circumstance that would enliven the Court’s jurisdiction to make an order for costs. If so enlivened I must then be satisfied that it is just to do so.
The husband, having discontinued his Application and having chosen to not appear today, notwithstanding that he has not been advised by the Court or any other person that he need not do so, has no evidence before the Court.
The wife’s evidence before the Court comprised her Response which is subject to a sworn declaration as to the accuracy of material contained therein. That document is before the Court together with the brief oral evidence of Ms Sandoval. That evidence suggests that the parties had not separated on 10 July, 2010, as alleged by Mr Samson, although at that date they were not, in fact, present within the same country or cohabiting together.
The absence of cohabitation is not of itself a determinant, however, that separation has occurred. Section 48 of the Act makes clear that what is required is to establish that the parties have lived separately and apart for not less than 12 months immediately preceding the date of filing of an application. The evidence as to the lived experience of the parties must warrant and justify such a finding.
It is also necessary that there be some communication, whether verbal or otherwise, by a party to the other that they no longer consider the marriage to be on foot and that they wish it to be brought to an end as well as behaviour and circumstances consistent with and corroborating the evincing of that intention and its communication. No such evidence is available in this case as regards Mr Samson’s allegation.
Ms Sandoval’s evidence is that the parties, as at 10 July 2010, were residing respectively in Australia and Fiji having been married in Fiji.
It is suggested in paragraph 7 of the response filed by Ms Sandoval as follows:
“The parties lived together as husband and wife from 29 April 2011, when the wife arrived in Australia, and until 10 July 2011, when the parties stopped living together as husband and wife. Prior to the wife arriving in Australia, the husband visited her in Fiji on four occasions from when they met and would call or send her text messages every day.”
What is also apparent from both the Response and the oral evidence of Ms Sandoval is that there is a substantial history of violence between these parties. This violence would appear to have given rise to applications in State Local Courts. Ms Sandoval’s evidence is that there was domestic violence perpetrated upon her within the definition of s.4 of the Act and the State legislation and occurring from May 2011 until Ms Sandoval left the marriage on 10 July 2011.
The Liverpool Local Court made a final Apprehended Domestic Violence Order (“ADVO”) on 8 August 2011 for a period of two years and being an order for the protection of the wife. Ms Sandoval has given evidence that there have also been police charges relating to assaults, and it would appear from Ms Sandoval’s evidence and submissions put in her case that, certainly as at 3 November, 2011, Mr Samson was in custody for whatever reason and that charges had proceeded against him through the police.
Service of the Application for Divorce occurred by the Application being provided by, or purporting to be provided, by Mr Samson to Ms Sandoval directly whilst both of these parties were attending at the Local Court with respect to domestic violence proceedings. That, of course, would not be good service either as to service by Mr Samson personally of his application upon the Respondent or service occurring within the confines of a Court building. In any event, service was ultimately arranged by a copy of the Application being provided to the police, who were prosecuting the Application for Ms Sandoval’s protection and seeking restraints against Mr Samson and the application then being provided by the police to Ms Sandoval’s lawyer, who has filed an Affidavit of Service, same having been filed with the Court on 20 October 2011. That affidavit deposes to service occurring consistent with that alleged by Ms Sandoval.
I also have available an Affidavit of personal service deposing to service of Ms Sandoval’s response to the Application for Divorce, and I am accordingly satisfied as to service of same.
An Affidavit has also been filed in the proceedings on 17 October 2011 being an affidavit by Ms Sandoval to which I have had regard. That affidavit sets out in more detail the violence that is alleged to have occurred and which I accept was perpetrated by Mr Samson. The affidavit also annexes corroborating material in the nature of a medical report, albeit brief and handwritten, suggesting that violence as alleged by Ms Sandoval has been perpetrated upon her.
I have also received into evidence the ADVO made by the Local Court which suggests a consistent finding of another Court as to domestic violence.
Those matters are relevant, and I will return to them in consideration of s.117(2A)(g) in due course.
Ms Sandoval’s evidence goes further and suggests that at the time of attempted or purported service by Mr Samson of his divorce application that communication occurred directly between them, notwithstanding that the terms of an interim ADVO at the time precluding same, and that Mr Samson had suggested in words to the effect that if Ms Sandoval was prepared to discontinue and provide instructions to the police to withdraw the ADVO which he was answering that day at Court, that he would also withdraw his Divorce Application.
Such actions by Mr Samson would appear to be wholly unacceptable and wholly inappropriate, noting that they represent, on their face, a breach of the ADVO and quite possibly would represent or establish the offence of seeking to interfere with a police witness. The ADVO complaint before the Court was a complaint by the police, and Ms Sandoval was a witness in the complaint, notwithstanding her special status as the PINOP.
With respect to s.117, I am satisfied, by reference to O'Reilly Js decision in Casley that there are justifying circumstances.
Clearly on the face of the divorce application and the evidence that is available, separation had not occurred on the date alleged by Mr Samson, and indeed, it would be difficult, if not impossible, to understand or comprehend how it could be suggested by him that this was so. Separation occurred a full year later and within 2 months of the filing by Mr Samson of his application.
I have had opportunity to consider the brief handwritten Affidavit filed by Mr Samson and not withstanding that the application in support of which it was filed has been discontinued. Mr Samson does not at any time in that Affidavit, which was filed for the express purpose of seeking to support his allegation as to separation, provide any evidence which could possibly satisfy this or any other Court as to that fact.
In those circumstances, I am satisfied that at the time of filing of the Application that separation had not subsisted for a period of 12 months and but for the discontinuance of the Application I would have dismissed it.
In those circumstances and having regard to the totality of the evidence I have addressed above, I am satisfied that there are justifying circumstances that warrant and enliven the Court’s exercise of jurisdiction under s.117(2) of the Act.
I am then required to consider the matters set out in sub-ss.117(2A), (3), (4) and (5). Sub-ss.117(3), (4) and (5) are not relevant to the determination of this Application, dealing, as they do, with Applications for costs by Independent Children’s Lawyers.
In dealing with sub-s.117(2A), I propose to address each of the circumstances set out therein individually:
Financial circumstances of each of the parties.
Ms Sandoval’s evidence is that she is unemployed. She has recently come to Australia. Whilst she speaks English quite well it is not her native language nor is this her original place of birth or residence.
I have no information as to the impact that these proceedings or the divorce, if it had proceeded, would have upon Ms Sandoval’s residential status, although I suspect that Mr Samson may well have had some desire to create mischief with respect to that issue as clearly Ms Sandoval has been subject to a spouse visa in entering Australia.
In relation to the financial circumstances of Mr Samson I have very little other than his allegation in his material that he is a (occupation omitted) and that he owns his own business. I am advised by Ms Sandoval that he also owns property. There may well yet be proceedings to come between these parties with respect to property adjustment. Any such application need not await the filing or determination of a Divorce Application.
The financial circumstances of the husband I am satisfied are such that if an order for costs were made against him that he could meet same and that it could be secured and enforced.
Whether any party is in receipt of a grant of Legal Aid
I am not satisfied that Mr Samson is legally aided. The application is brought by him in his own right and would be outside of the Legal Aid Commission’s guidelines for funding in any event.
I am not advised as to whether Ms Sandoval is legally aided but she is represented by an agency that receives funding from State and Commonwealth agencies. It could be suggested that an order for costs should not be made in those circumstances as Ms Sandoval has incurred no cost. Alternately it could be suggested that any order for costs would not, in those circumstances, be of great quantum on the basis that an order for costs is intended, as set out above, to compensate a party against expense incurred in litigation and is not punitive in nature.
I am satisfied in dealing the application and awarding costs that I am entitled to look to the totality of cost that is incurred not only by Ms Sandoval personally, by expenditure from her own pocket, but by the community purse which funds the agency which has provided assistance to Ms Sandoval in circumstances where she has been the victim of family violence. That is not to suggest for one moment any degree of patronising comment by raising such issues.
It is a well-established principle that the community funding of legal services is of great benefit to the community as well as the individuals assisted. I have had cause in previous judgments delivered by me with respect to costs, and particularly with respect to costs orders made in favour of legally aided parties, to observe that the totality of cost incurred is that which must be taken into account, including the real cost to the agency that has provided legal assistance, whether that is provided on a legally aided basis, a pro bono basis or otherwise.
The provision of community legal services has a cost to the community. In this case cost has been incurred unnecessarily and in circumstances that justify the making of an order for costs. If the costs expended in providing valuable assistance to Ms Sandoval are not reimbursed to that agency then this depletes their ability to provide and continue to provide the excellent, valuable and worthwhile resources that they do, including to people such as Ms Sandoval, to whom the Commonwealth owes a special responsibility under international obligations and treaties.
In addition I am satisfied that in this case the provisions of s.117AB apply. Section 117AB provides:
Costs where false allegation or statement made
(1) This section applies if:
(a) proceedings under this Act are brought before a court; and
(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
(2) The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings
I am satisfied on the available evidence that Mr Samson has knowingly made a false allegation as to the date of separation and by alleging that separation occurred one calendar year earlier than it did. It is possible that the application contained a typing error. However, Mr Samson has then filed an Affidavit seeking to support his earlier allegation and has had the opportunity on 2 earlier occasions when the matter has been before the Court to repair his evidence if that if what had occurred. That he has not done so and has adhered to his statement satisfies me that his statement was knowingly false and thus I am obliged and mandated to make an order for costs.
Conduct of the parties to the proceedings.
I am satisfied, based on the evidence that is before the Court, including evidence with respect to the ADVO, which contains on its face and stated in the ADVO complaint a clear statement as to when physical separation occurred between these parties.
On that basis, I am satisfied that it could not be otherwise than Mr Samson was fully aware that the allegation he was making in filing his application for divorce was disputed and was, indeed, false. That being so, I am satisfied that his conduct in making and maintaining a false allegation was reprehensible.
The evidence now establishes that Mr Samson commenced an apprehended domestic violence proceeding against the wife in circumstances where he was already subject to police-instigated domestic violence proceedings and criminal charges against him. Such actions reflect poorly on Mr Samson’s motivations. Mr Samson did not proceed with the application before the Local Court and did not appear and those proceedings were dismissed for want of prosecution and in circumstances whereby Mr Samson was in custody, presumably for breach of the ADVO against him or with respect to one of the charges that was then pending before the Court regarding his actions towards Ms Sandoval.
Mr Samson has caused these proceedings to come before the Court today for the third occasion and has then not appeared. On the previous two occasions Mr Samson has had the opportunity, by analogy to the Local Court’s criminal jurisdiction, to “obtain the full benefit of his early plea” by withdrawing his application at the earliest opportunity rather than withdrawing it shortly prior to a defended hearing which he has not attended.
In those circumstances, I am satisfied that Mr Samson’s conduct represents circumstances that are appropriate to enliven the Court’s jurisdiction as to costs and to found an order and which make such an order just.
Whether any party has been wholly unsuccessful.
Mr Samson has most clearly been wholly unsuccessful. He has filed an Application seeking to invoke the Court’s jurisdiction to grant divorce and has ultimately failed, through discontinuance, to obtain any order that he has sought.
Ms Sandoval has obtained the relief that she has sought being that the divorce be refused.
Section 117(e), however, requires a focus on the lack of success rather than the positive obtaining of success. I am satisfied that Mr Samson has been wholly unsuccessful in these proceedings.
Whether any party has made an offer in writing.
The only offer of which I am advised is that by Mr Samson whilst at the Local Court that he would discontinue these proceedings if Ms Sandoval gave instructions to the police to discontinue proceedings preferred by the Police against him. It is not a matter within Ms Sandoval’s control to cause the discontinuance of proceedings initiated by the Police and as s.279(2) of the Criminal Procedure Act 1986 (NSW) makes clear spouses are compellable witnesses in domestic violence proceedings.
Accordingly, acceptance of that offer would not necessarily have concluded the matter. In any event the putting of the offer let alone its acceptance would have been entirely inappropriate and, as I have remarked, in all probability may well have founded or justified the preferring of criminal charges for seeking to interfere with a witness.
Such other matters as the Court considers relevant.
As would be apparent from the discussion above directly referable to whether there are or are not justifying circumstances for the making of an order for costs, I am satisfied that Mr Samson’s behaviour throughout the proceedings and relating to their instigation, continuance and attempts to negotiate the withdrawal of the proceedings is far from appropriate.
The application made by Mr Samson and its prosecution until discontinued would suggest a significant degree of control and coercive behaviour by Mr Samson. Whilst I do not raise that criticism of him to suggest that any order for costs as would be made by me today is in any way punitive in nature, the circumstances of and surrounding the application suggest that Mr Samson’s motivation in bringing and prosecuting his application was not founded in the administration of justice and obtaining relief to which he was entitled but focused upon motives extraneous to the exercise of discretion by this Court.
In awarding costs, I am required to consider schedule 1 of the Federal Magistrates Court Rules 2001, which sets out an indicative scale of costs. The scale is not intended to be prescriptive but is intended to be informative and to provide some guidance as to the quantum of costs which might be ordered. I have also been provided with an exhibit, ‘W1’, in the proceedings, being a schedule of costs prepared in accordance with schedule 3 of the Family Law Rules 2004. That schedule of costs is not applicable in this Court and is referable to proceedings before the Family Court. However, the two have some overlap as to quantum in this case.
These proceedings have been listed for final hearing today. The amount allowed for preparation of a one-day matter under schedule 1 of the Federal Magistrates Court Rules2001 is an amount of $3900. As the matter has clearly been listed for only a half-day, I would propose to halve that amount, and thus preparation would be allowed in the sum of $1995.
An attendance fee is also authorised by schedule 1. A half-day hearing fee is fixed at a sum of $936. I am entitled to add to that, if considered appropriate, an advocacy loading. Irrespective of whether I were to engage in that process or not it would appear clear to me that the amount of costs that are sought, if one was to then include some provision for disbursements, would not, if calculated by reference to schedule 1 of the Federal Magistrates Court Rules 2001, be dissimilar to that which is ultimately calculated by reference to schedule 3 of the Family Law Rules 2004. On that basis and with some slight rounding and discount, I propose to make an order that fixes costs in a quantum of $3,500, which is referable to both Exhibit ‘W1’ and this Court’s schedule.
The time for payment is difficult to approximate as the Court has little information with respect to the husband’s financial position. Accordingly, I propose to make an order that the order for costs be met by the conclusion of this calendar year and, indeed, to be paid no later than 4 pm on 23 December 2011. It certainly would appear, on the basis of the evidence available, that Mr Samson owns a property, operates a business and is (occupation omitted). Accordingly, he would appear to have a capacity to borrow funds without having to necessarily attend to payment directly from his own income and resources.
Otherwise with respect to costs, and lest it become an issue of controversy in the future, I am satisfied that it would be appropriate in this case, had it been sought, that an order on an indemnity basis be made by reference to authorities such as Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited; Cussons Pty Limited v Colgate-Palmolive Company and Colgate-Palmolive Pty Limited [1993] FCA 536; (1993) 46 FCR 225 (10 November 1993). The application brought by Mr Samson would appear clearly demonstrable from the documents and material that is before the Court to have been bound to fail. On that basis, I am satisfied that the Court’s jurisdiction to make such an order, had it been sought, would have been enlivened.
It would appear that the effect of the schedule tendered, exhibit W1, is to recoup all cost that has been incurred not only on a party/party but solicitor/client basis. Whilst not so described it could be taken and inferred to be an application for indemnity costs. That would not in any way affect the quantum of costs calculated in accordance with the Federal Magistrates Court Rules 2001.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 16 April 2012
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