SHERWOOD & SHERWOOD

[2015] FamCA 357

FAMILY COURT OF AUSTRALIA

SHERWOOD & SHERWOOD [2015] FamCA 357

FAMILY LAW – COSTS – where final parenting proceedings adjourned as a consequence of the mother’s lack of frankness with the court – where the father put to the expenses of a further two days of trial – where usual rule as to costs displaced – where order for the mother to pay fathers costs on a party/party basis.

FAMILY LAW – COSTS –where application for indemnity costs by father – where Rule 19.08 not complied with – application for indemnity costs dismissed.

Family Law Act 1975 (Cth) s117
Family Law Rules 2004 (Cth) rr 19.08, 19.18

PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Sherwood

RESPONDENT: Ms Sherwood

FILE NUMBER: PAC 1907 of 2009

DATE DELIVERED: 14 May 2015

PLACE DELIVERED: Dubbo

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Tilley Family Law and Mediation

COUNSEL FOR THE RESPONDENT: Ms Eldershaw

SOLICITOR FOR THE RESPONDENT: Aitken Lawyers

Orders

1. That the mother pay the father’s cost of instructing solicitor and counsel for 29 and 30 May 2014 on a party/party basis as agreed or assessed and pay the costs incurred by the father of the transcript of the proceedings for 31 March 2014 and 1 April 2014.

2. That the mother pay the father’s costs of the present application on a party/party basis as agreed or assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sherwood & Sherwood 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 PARRAMATTA

FILE NUMBER: PAC 1907  of 2009

Mr Sherwood

Applicant

And

Ms Sherwood

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the father’s application for costs in relation to concluded proceedings as to parenting.

2. In his application in a case filed on 8 September 2014 the father seeks the following orders:

   a)An order that the applicant mother pay the respondent father’s legal fees of and incidental to the appearances before the court on 29 and 30 May 2014, such costs to be assessed on a solicitor and client basis; and

   b)An order that the applicant mother pay the respondent father’s costs of and incidental to this application.

3. The order for costs on a solicitor and client basis as sought by the father is sought as an order for indemnity costs.

4. The father relies upon his affidavit in support of the application filed on 8 September 2014.

5. The mother responded by seeking an order for costs against the father in relation to the two further days of hearing referred to below. The mother relied on her affidavit filed 13 January 2015. The mother relied on her offers of settlement dated 20 June 2013 and 30 May 2013. The first whereby the mother resiled from her proposed move to Country L with the children but foreshadowed a proposed move to the United Kingdom with the children. The second letter rejecting an offer by the father, details of which are not known, but reiterating her proposal to relocate to the United Kingdom with the children by early July 2013 but being open to discussing the youngest child remaining in Australia until September 2013 with the father before relocating.

6. Nowhere does the mother set out any reasoning as to why her proposals were in the children’s best interests in the context of disrupting their long term residence in Australia.

Context

1. The primary proceedings for parenting were fixed for final hearing before the court on 31 March, 1 and 2 April 2014. The mother was the first witness and at the time of the lunch adjournment on 1 April 2014 the mother had concluded her cross examination.

2. Subsequent to the lunch adjournment the mother’s counsel sought a short adjournment to obtain instructions prior to re-examination. The matter remained stood down and was subsequently adjourned to 10:00am on 2 April 2014.

3. Immediately on the morning of the 2 April 2014 the following exchange took place:

   HIS HONOUR:   Thank you.  Mr O’Brien.

   MR O’BRIEN:   Your Honour, I’m not entirely sure how to advance you.  It’s certainly a new territory for me.  My instructor is seeking to withdraw from representing my client, and I will be seeking leave on that basis to withdraw from the proceedings also.

   HIS HONOUR:   Yes.  Has anything happened in relation to the fabled affidavit?

   MR O’BRIEN:   Yes, your Honour.

   HIS HONOUR:   Is that to remain a secret at this stage, is it?

   MR O’BRIEN:   No, no.  That has been served.

   HIS HONOUR:   Haven’t been filed as yet.

   MR O’BRIEN:   No, your Honour.

   HIS HONOUR:   Is there any objection to the affidavit being received into evidence and marked as an exhibit?

   MR GIVNEY:   No, your Honour.

   MS DART:   No, your Honour.

   HIS HONOUR:   Is that your proposal, Mr O’Brien?

   MR O’BRIEN:   I’m not sure if I can put those proposals forward any more, your Honour.

   HIS HONOUR:   Well, I suppose you’re still in it till I give you leave to withdraw.

   MR O’BRIEN:   Yes, your Honour.

   HIS HONOUR:   So ‑ ‑ ‑ 

   MR O’BRIEN:   My standing instructions were to file this.

   HIS HONOUR:   All right.  Okay.  Well, if you hand to my associate, I will mark it into evidence.  So it will form part of your client’s evidence in chief in due course in the proceedings.  Thank you.  I grant leave to the applicant mother to file an affidavit – further affidavit by her sworn on 2 April 2014.  And just for the sake of clarity, I will mark that document as exhibit I.

   HIS HONOUR:   All right.  Well, that’s before the court.  Mr Givney, I suppose you’re aware from discussions as to the circumstances of what has arisen in relation to the application by the solicitor instructed by the wife and Mr O’Brien, you have no objection to being given live to withdraw?

   MR GIVNEY:   I haven’t.  Your Honour, if I could firstly say, I have not – do not have the knowledge, nor do I seek it.

   HIS HONOUR:   All right.  Thank you.

   MR GIVNEY:   And I don’t oppose the application.

   HIS HONOUR:   You don’t seek to be heard?

   MR GIVNEY:   No, your Honour.

   MS DART:   I don’t seek to be heard, your Honour.

   HIS HONOUR:   Thank you, Ms Dart.  Thank you.  So Mr O’Brien, you seek leave to withdraw as a consequence of your solicitor also seeking leave to withdraw.

   MR O’BRIEN:   Yes, your Honour.

4. As a consequence of her legal representatives withdrawing on 2 April 2014 the mother sought and was granted an adjournment to obtain further legal representation. As a consequence the proceedings were fixed for further hearing on 29 and 30 May 2014. The father’s costs thrown away were reserved.

5. In the reasons for judgement (Sherwood & Sherwood [2014] FamCA 662) appears the following:

   59.      It is clear from the mother’s primary trial affidavit that her asserted motivation in seeking to relocate to the United Kingdom was to facilitate, support and encourage what she perceived to be her son’s soccer prospects ultimately in professional soccer in the United Kingdom. Her affidavit goes into great detail in relation to her son’s career and asserted prospects.

   60.      The mother deposed in her primary affidavit to her intention to reside with the children between [U Town] and [City S] along the [V Region] train line. She proposes to seek rental accommodation near [D’s] proposed school at [U Town], stressing the importance of such accommodation so as to facilitate the child participating in community and school functions easily.

   61.      The mother has facilitated [D] undertaking the entrance examinations for [U Town] School without informing the father.

   And then:

   The mother’s disclosure issues:

   72.      Following the conclusion of the mother’s cross-examination, her counsel sought an adjournment before she was re-examined. After informing the Court that there were “disclosure issues”, the hearing was adjourned late on day two with the mother to provide an affidavit to the Court the following morning as to the issues raised by her counsel.

   73.      On the resumption of the matter the following morning, an affidavit sworn by the mother on 2 April 2014 was marked into evidence as Exhibit I. The mother’s solicitor and Counsel sought leave to withdraw and such leave was granted. The mother was then unrepresented and to facilitate her obtaining fresh legal representation the proceedings were adjourned part heard to 29 May 2014.

   74.      In her affidavit sworn on 2 April 2014 the mother disclosed a relationship with [Mr W], who resided in [City S]. The mother had met [Mr W] when she and [B] travelled to [City S] in April 2013. [Mr W] resides in [Suburb X] in [City S]. The mother deposes to the blossoming of her relationship with [Mr W] prior to her return to Australia with [B] in June 2013. The mother disclosed her relationship with Mr [B] to both children.

   75.      On the mother’s trip to the United Kingdom in January 2014 the child [D] met [Mr W], by which time [Mr W] had developed a relationship with the child [B]. [Mr W], the mother and the children spent considerable time together during January 2014. The mother and [D] maintained regular contact with [Mr W] after returning to Australia in January 2014. The mother and [Mr W] regard themselves to be in an exclusive relationship and the mother deposes in her affidavit that they have had discussions about living together in the future following the mother’s relocation with the children to England.

   76.      The mother proposes in her affidavit that if application for relocation is successful, she would reside with the children in [U Town], some distance from [City S]. She acknowledges discussions with [Mr W] in relation to them living together at some time in the future.

   77.      The mother further deposes that one of her main reasons for now seeking to relocate to the United Kingdom is her relationship with [Mr W] and her wish to pursue that relationship. The mother believes that she and [Mr W] have a long-term future together and missing out on the opportunity to have a relationship with him would “truly negative impact on my happiness”. The mother asserts that [D] is aware of her feelings for [Mr W] and that the child has herself developed a warm relationship with him.

   78.      It is to be noted that the mother’s primary trial affidavit was sworn on 7 February 2014 and filed on the same day. By the date of this affidavit the mother had returned from the United Kingdom with [D] and her relationship with [Mr W] and his relationship with the children it is to be inferred would have been uppermost in her mind in terms of her future proposals, yet the mother chose to hide that relationship from the court in the context of not only her sworn evidence on affidavit but during the course of extensive cross examination, during which she had the opportunity of disclosing the relationship to the Court.

   79.      The hearing resumed on 29 May 2014 and with leave the mother’s cross examination resumed as a consequence of her disclosures.

   The mother’s further oral evidence

   80.      The mother acknowledged that communication between herself and [Mr W] had mentioned marriage and that it was contemplated that when the mother moved to the United Kingdom she would reside in his apartment in [Suburb X].

   81.      None of this evidence was included in her “disclosure affidavit”. Overall, as submitted by counsel for the father, the mother’s disclosure makes a “nonsense” of her earlier evidence as to her motivation for relocation.

   82.      The mother displays a complete disregard for her obligation to be frank and candid with the Court, especially in circumstances where the best interests of her child [D] is to be determined on the evidence adduced before the Court.

Costs

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.

2. That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.

3. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.

4. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relevantly, in these proceedings, relate to the following:

   a)The financial circumstances of each of the parties to the proceedings:

   There is no issue that the parties’ financial circumstances demonstrate any inability to meet an order for costs if made.

   b)Whether any party has legal aid and the terms of any grant of aid:

   This is not a relevant consideration.

   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 answers, questions, admissions of facts, production of documents and similar matters:

   The circumstances relating to the mother’s conduct in the conduct of these proceedings are referred to above. As a consequence of her being less than frank with the Court in relation to aspects of her case and by inference less than frank with her then legal representatives the proceedings were expanded in time. Not less than one half day of hearing time was lost on the second allocated day and then on a resumption of the third and intended final hearing day the mother on her application was granted an adjournment in circumstances where otherwise the father was ready to proceed with the trial. The trial was then relisted for further hearing for another two days about six weeks later and concluded within that timeframe. Clearly absent the issues referred to above there was a strong prospect that the matter would have completed in the original three days allocated.

   d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court:

   This is not a relevant consideration.

   e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings:

   This is not a relevant consideration.

   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:

   The mother’s “offers” are referred to above. They should be considered in reality her airing her proposals without reference to any contention as to why same were in the children’s best interests. Indeed the evidence at trial as referred to above revealed a very different premise than that propounded by the mother in 2013.

   g)Such other matters as the Court considers relevant:

   There are no other relevant considerations.

5. There is nothing to prevent any one factor being the sole determinant for an order for costs: see PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.

Indemnity Costs

1. The applications before the Court, set out below, are, in effect, applications for the wife to pay costs on an indemnity basis.

2. It is usual for the Court to make an order for costs on a party/party basis.

3. Provisions of the Family Law Rules 2004 (Cth) (“the Rules”), particularly rule 19.18, provides for the method of calculations of costs. That rule provides as follows:

   (1)The court may order that a party is entitled to costs:

   (a)of a specific amount;

   (b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

4. The Rule further provides, in subparagraph (3), that:

   (3)      In making an order under subrule (1), the court may consider:

   (a)the importance, complexity or difficulty of the issues;

   (b)the reasonableness of each party’s behaviour in the case;

   (c)the rates ordinarily payable to lawyers in comparable cases;

   (d)whether a lawyer’s conduct has been improper or unreasonable;

   (e)the time properly spent on the case, or in complying with pre-action procedures; and

   (f)expenses properly paid or payable.

5. The Court has jurisdiction in its discretion to make an order for costs on an indemnity basis and the purpose of such an award is to more fully or even wholly repay to a party all, or at least the majority, of their legal costs and disbursements and charges incurred in the proceedings.

6. However rule 19.08(3) provides that a party applying for an order for costs on an indemnity basis must inform the Court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

7. The applicant father provides no such evidence in support of his application for indemnity costs and in that circumstance the application for indemnity costs must fail.

Costs otherwise

1. There is no basis as for the general rule as to each party paying their own costs in so far as the mother’s application is concerned for the reasons set out above. That application is to be dismissed.

2. The extension of the hearing was directly as a consequence of what transpired in the mother’s case as referred to above. The father was put to the additional expense of a further two days of hearing.

3. The father was put to the expenses of counsel and instructing solicitor for a further two days and to the cost of a transcript necessitated by the adjournment.

4. He should have those costs on a party/party basis.

5. The father has been successful in his application for costs and should have his costs of the application on a party/party basis.

6. Orders will be made accordingly.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 May 2015.

Associate:

Date:  14 May 2015