Shirley & Moore (No 3)

[2023] FedCFamC1F 1110

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Shirley & Moore (No 3) [2023] FedCFamC1F 1110

File number(s):	PAC 3139 of 2013
Judgment of:	KARI J
Date of judgment:	12 December 2023
Catchwords:	FAMILY LAW – COSTS – Ex tempore reasons – Where the father seeks an indemnity costs order for costs incurred in relation to three Contravention Applications filed by the mother – Where the mother’s application plead over 100 counts – Where a number of counts were dismissed by the court – Where a number of counts were abandoned by the mother – Whether the mother was wholly unsuccessful - Where the mother indicated she would withdraw all Contravention Applications if the father filed a fresh Initiating Application to vary the parenting orders – Where the father asserts that the mother’s conduct warrants the making of a costs order – where the court considers the father’s conduct – Application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 102NA, 117
Cases cited:	Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Division:	Division 1 First Instance
Number of paragraphs:	55
Date of hearing:	12 December 2023
Place:	Sydney
Counsel for the Applicant:	Mr Christie
Solicitor for the Applicant:	Bookallil Family Law
Counsel for the Respondent:	Ms Kirk
Solicitor for the Respondent:	MA Kent & Associates

ORDERS

PAC 3139 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MOORE

Applicant

AND:

MR SHIRLEY

Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	12 DECEMBER 2023

THE COURT ORDERS:

1.That by consent all extant Contravention Applications do stand dismissed.

2.That the Application in a Proceeding filed by the father on 17 November 2023 and sealed on 20 November 2023 be dismissed.

3.That the Application in a Proceeding filed by the mother on 21 November 2023 be dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

KARI J:

INTRODUCTION

1. The proceedings come before the court today in relation to competing costs applications made by the parties arising from contravention proceedings before this court.  The contravention proceedings more significantly however, relate to the parenting arrangements for the parties’ child, B, born in 2013.  B is aged ten years. 

2. Sadly for B, his parents have been in dispute about his arrangements more or less for his entire life.  I note that the file has a 2013 file number.  Be that as it may, those parenting proceedings have been heard and determined in the Brisbane registry of the court, and the contravention proceedings have come before me as a result of the National Contravention List.

3. It is important for me to record that the final parenting order to which the contravention proceedings relates is that made by Hogan J on 23 November 2018, the same having been amended shortly thereafter.  By that order, of significance, orders were made that provided for B to live with the father immediately following the making of the order.  The orders also afforded sole parental responsibility in respect of all major long-term issues to the father, and those long-term issues were particularised.  The father was otherwise required when making decisions about major long-term issues in relation to the child to, effectively, consult with the mother and give consideration to her views.

4. A raft of additional parenting orders were also made; however, significantly, for present purposes, orders were made for time-spending between the mother and the child at paragraph 8.  Those orders provided for a supervised time-spending regime through the C Organisation contact service together with orders at paragraph 9 for communication to occur between the mother and the child. 

5. In terms of the contravention proceedings that have come before me, there were three separate applications filed by the mother:  the first on 8 November 2022, the second on 25 November 2022 and the third on 6 December 2022.  Each of those applications came before me as they were allocated to me through the National  Contravention List.

   BACKGROUND

6. It is important for me to set out the trajectory of the contravention proceedings before me, given the competing costs applications that are now before the court. 

7. The first and second Contravention Applications were first dealt with by a Senior Judicial Registrar on 25 November 2022.  At that juncture the proceedings were transferred to The Federal Circuit and Family Court of Australia, Division 1, and they were to be allocated to a judge for management and ultimate hearing.  Following the making of that order the matter has been managed by me. 

8. The first hearing before me took place in chambers on 6 December 2022.  On that day I made a chambers order setting the Contravention Applications (those that were then before the court), to a hearing on 13 December 2022. I note that when that order was made it had not come to my attention that a further contravention - the third Contravention Application of the mother had been filed. 

9. Significantly, for present purposes, the parties were self-represented, both in terms of the mother’s filing of her three Contravention Applications, and secondly, they were each self‑represented at the hearing before the registrar on 25 November 2022 and before me at the hearing on 13 December 2022. 

10. By the time of the hearing on 13 December 2022 the third Contravention Application was before me, and I was seized of all three applications. 

11. I pause here to also record that the nature of the National Contravention List is such that the hearing of any Contravention Application can be heard by any judge sitting around the country.  The effect of that is that that all hearings, unless they are heard by a judge in the registry in which the application is filed, proceeded virtually by Microsoft Teams.  I record for present purposes that all of the hearings before me in these proceedings (other than the orders to which I have just referred I made on 6 December 2022 which were made in chambers), have proceeded virtually by way of Microsoft Teams.

12. Virtual hearings in and of themselves create their own difficulties, and we have encountered some of those technical difficulties again today, but I will say nothing further about those matters at this juncture as they are not germane to the present dispute. 

13. Returning to the hearing on 13 December 2022, as I said a moment ago, the parties were both self-represented at that hearing.  Significantly, I made notations to the orders made that day  which recorded:

    A.That there were now three separate Contravention Applications in which a total of over 100 separate counts were pleaded by the mother;

    B.That the father indicated to the Court that he wished to obtain legal advice;

    C.I raised a concern with the mother over the number of counts pleaded by her, and I invited the mother to give further consideration to those counts that she intended to pursue and those which she might abandon.

14. In addition, the father foreshadowed that he may bring an application to have the Contravention Application transferred and dealt with by Hogan J in circumstances where she had heard and determined the substantive parenting proceedings and a number of other applications that have flowed over the life of the parenting proceedings. 

15. Significantly:

    (a)I made orders directing the mother to file a schedule to give some clarity to those counts that she was pursuing and the order she alleged had been breached in relation to those counts. 

    (b)The matter was then adjourned to a hearing on 27 February 2023. 

16. Following that hearing a further Contravention Application was filed by the mother, that being an application sealed on 20 January 2023. Additionally, the father filed an Application in a Proceeding on 22 February 2023 seeking the transfer of the contravention proceedings to the Brisbane Registry to be heard by Hogan J. 

17. When the matter came before me on 27 February 2023 the parties were again self-represented. On that occasion I made the following notations: 

    (a)Firstly that there had been no time-spending between the mother and B since from approximately 11 January 2023;

    (b)Secondly that the father indicated to the court that he intended to file a fresh Initiating Application for Final Orders in which he intended to pursue either a stay or a variation to the final orders made by Hogan J on 23 November 2018; and

    (c)While it is not particularised in the notation, the father, I recall, indicated to the court on that occasion that the focus of any further application to be made by him was to seek a suspension of the mother’s time-spending and communication arrangements with the child.

18. Significantly, the father having conveyed that position to the court, I made a further notation, being the mother’s indication to the court that if the father filed a fresh Initiating Application for final parenting orders, then she would withdraw all of the Contravention Applications that she had filed. 

19. I otherwise made a range of orders: 

    (a)Significantly, I dismissed the father’s Application in a Proceeding filed on 22 February 2023 for the proceedings to be transferred and heard by Hogan J given that the application did not meet the intentions of the National Contravention List. 

    (b)I then also made an order uplifting an affidavit that had been filed by the mother on 27 January 2023. 

    (c)I otherwise, by consent, dismissed the mother’s third Contravention Application filed on 6 December 2022, understanding that the mother did not intend to pursue the same as she discontinued that application orally before me during the hearing. 

    (d)I also made orders dismissing various counts set out in the remaining Contravention Applications before the court as follows:

    4.        That the following counts be dismissed:

    a.In relation to the first Contravention Application filed on 8 November 2022:

    i.Counts 1, 3, 4, 7, 10, 12, 14, 15, 17, 21, 22, 23, 25, 26, 27, 29, 30, 32, 33, 38, 40, 43, 44, 56, 58, 62, 75, 76, 79, 8.1

    b. Each count pleaded in relation to paragraph 32 of the final orders, namely:

    i. In relation to the first Contravention Application filed on 8 November 2022, count 80.

    ii. In relation to the second Contravention Application filed on 15 November 2022, count 3.

    (e)I thereafter directed the mother, at paragraph 5 of those orders, to elect one representative count for each of the final orders made on 23 November 2018 that she proposed to pursue as a representative count, the intent being, as explained to the parties at that hearing, was that those counts would proceed to a full hearing, and the mother would thereafter make an election as to whether she pursued the remaining counts or not, subject to the determination of each of the representative counts. 

    (f)I thereafter – and significantly, for present purposes – made orders, pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”), indicating that the mandatory provisions in s 102NA would apply to the contravention hearing, the effect of which was that the parties were personally prohibited from cross-examining each other.

    (g)I also made an order reserving the father’s claim for costs thrown away in relation to the Contravention Applications generally, curious as I am as to what those costs might have been at that juncture in circumstances where the father was self-represented. 

    (h)Leaving that to one side, the matter was set down for trial on 13 June 2023 with a half day allowed. 

20. Following the making of those orders both of the parties became represented pursuant to a grant of funding under the Family Violence and Cross Examination Scheme (“the Scheme”) , and legal representatives for each of the parties filed Notices of Address for Service in mid-April of 2023; the mother on 14 April 2023 and the father on 19 April 2023. 

21. Having thereafter obtained legal representation the parties attended to preparing the matter. I can see from the court file, and the filing of a range of documents that the parties were focused towards the trial hearing of the representative counts on 13 June 2023.

22. At the hearing on 13 June 2023 both parties were represented by counsel, and they have thereafter been represented by the same counsel across the balance of hearings before me, including today.  Significantly, at that hearing the mother, through her counsel, abandoned further of the counts alleged across her various Contravention Applications.  I made the following orders dismissing those counts that were abandoned by the mother:

    1. That in relation to the Contravention Application filed on 8 November 2022 the following counts shall be dismissed in circumstances where the Mother no longer presses the same:

    a. 2, 5, 6, 8, 9, 11, 13, 36, 37, 39, 41, 42, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 57, 59, 60, 61, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 77 and 78.

    2. That in relation to the Contravention Application filed on 15 November 2022 the following counts shall be dismissed in circumstances where the Mother no longer presses the same to the extent that the entire Contravention Application filed on 15 November 2022 is now dismissed:

    a.         1 and 2.

23. Significantly as a result of those orders only a small number of counts thereafter remained from the three Contravention Applications that had been filed. The remaining counts were recorded in Order 4 made that day as follows:

    4. That the Contravention Applications filed on 8 November 2022 (those counts remaining 16, 18, 19, 20, 24, 28, 31, 34 and 35) and 20 January 2023 (those counts remaining 1 and 2) be adjourned to 11.30 am on 15 June 2023 (Adelaide time) with such hearing to take place by Microsoft Teams.

24. Needless to say as is obvious from that order, as a result of the events that took place on 13 June 2023 including the discussions had between the parties and from my recollection as a result of some technical issues which also impacted the course of that hearing, the contravention hearing did not proceed to a full hearing on 13 June 2023.  The matter was adjourned to 15 June 2023. 

25. At the outset of the hearing on 15 June 2023 I raised with the parties that I held significant concerns about the utility of the contravention proceedings proceeding to a full hearing in circumstances where it was abundantly clear to me that there was no time-spending occurring between the mother and the child pursuant to the final orders made by Hogan J and having, by that stage, before me affidavit material filed by the father, it was clear to me that the father, despite his intention to defend the contravention proceedings, did not intend to comply with the final orders made by Hogan J. 

26. I do not propose to pass judgment over the merits or otherwise of the position taken by the father in relation to his compliance or non-compliance with the final orders.  What I do say, however, is that at the hearing on 15 June 2023, and understanding the father’s position was that he did not intend to comply with the final orders, I raised with the parties my grave concerns about the utility of the contravention proceedings in circumstances where the outcome that the father pursued was that there be a suspension and/or discharge of the orders providing for time-spending and/or communication with the mother.  The father’s legal representatives were given the opportunity, by me standing the matter down, to give advice following the comments that fell from me and to take further instructions.

27. The trial however ultimately commenced.  The contravention trial was thereafter part heard, and the proceedings were adjourned to a date to be fixed.  Ultimately, that date turned out to be 27 July 2023, and because there had been technical difficulties during the hearing over Teams on 15 June 2023, arrangements were made for the parties to appear personally in the Brisbane Registry for the purposes of that hearing. 

28. On 27 July 2023, I again, at the outset of the hearing, raised my concerns with the parties, in particular the father, as to the utility of the contravention trial resuming and concluding for all of the reasons that I had raised on 15 June 2023.  Ultimately, the matter was stood down again to enable the father’s counsel to give advice and take instructions.  The matter ultimately was dealt with by me adjourning the proceedings to 24 November 2023. 

29. It is understood that the part heard contravention trial did not resume on 27 July 2023.  As the notations to the orders record, the father ultimately saw the utility of the matters that had been raised by me as concerns across the part heard contravention trial.  As a result, I made notations to the orders that day in the following terms:

    A. That through Counsel the father has indicated that he intends to file an Initiating Application to discharge the final parenting order made on 23 November 2018 and amended on 27 November 2018 in relation to the child [X] (born […] 2013) with such application to be made within 90 days.

    B. That the parties are agreed that in the event that the father fails to file the foreshadowed Initiating Application then the mother shall have a further 21 days thereafter within which to file any Initiating Application.

    C. It is not in dispute that the final parenting orders to the extent that they relate to communication and time spending between the child and the mother, are not being complied with.

30. The hearing on 24 November 2023 did not proceed and, effectively, for a range of reasons was adjourned to today’s date. 

31. Importantly, in the meantime, the father filed a fresh Initiating Application on 20 October 2023.  That application is proceeding in the usual course and is presently being managed by a registrar of the Federal Circuit and Family Court of Australia, Division 2.  Accordingly, at the commencement of the hearing today, I made an order with the consent of both parties dismissing all extant Contravention Applications.

    THE COSTS APPLICATION

32. The second thing that has occurred since the hearing on 27 July 2023 is that each of the parties have filed an Application in a Proceeding, which are the costs applications before the court today.  Those applications are the father’s Application in a Proceeding filed on 17 November 2023 and the mother’s Application in a Proceeding filed on 21 November 2023. 

33. I have both of those applications before me today together with the affidavit filed in support of the same by each of the parties.  I additionally have before me the written submissions filed by counsel for each of the parties in support of their respective applications before the court. 

34. I record at this juncture that the mother’s position is that the parties each bear their own costs in relation to the contravention proceedings.  The father’s position, as set out in his Application in a Proceeding and as confirmed by his counsel today, remains that he seeks a costs order against the mother on an indemnity basis in the amount of $9,768.80. 

1. The court understands that the quantum of costs now sought by the father is comprised of four separate items, those items being:

   (a)Firstly, fees paid by the father to his solicitors prior to the grant of funding, pursuant to the Scheme, and that is an amount of $2,811;

   (b)Secondly, fees paid by the father to his solicitors in relation to the preparation of the costs application filed on 17 November 2023 in the amount of $1,925;

   (c)Thirdly, disbursements paid to Dr SS, a psychiatrist who prepared a report for the father in relation to matters he asserts render him incapable of complying with the final orders for time‑spending between the mother and the child.  They are matters that go to his mental and psychiatric health. The quantum of costs sought is in the amount of $750; and

   (d)Additionally, disbursements paid to psychologist, Ms VV, in the amount of $4,282.80, again going to the topic of the father’s mental health. 

   THE LEGAL FRAMEWORK

2. Costs in this jurisdiction are governed by s 117 of the Act. Section 117 of the Act provides as follows:

   117  Costs

   (1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, 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), (5) and (6) 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.

   (Notes omitted)

   (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.

   DISCUSSION

3. I record that the s 117(1) of the Act provides that the parties are to bear their own costs. There are, however, circumstances which may give rise to the court making an order for costs, and if, indeed, the court is considering to do so, then those factors set out in s 117(2A) become relevant considerations. Importantly, however, it is not a given that a costs order will be made in any proceedings that proceed under the Act.

4. Those factors set out in s 117(2A) do not mandate the making of a costs order. They simply are factors that the court is to bring to account in considering whether to make a costs order or not. No one factor set out in s 117(2A) is determinative of the question of whether a costs order should be made and, indeed, the court has wide discretion as to the consideration of those factors when considering making an order for costs.

5. At the father’s end, he presses an order for costs in circumstances where he says a number of things. 

6. Firstly, the father points to subsection 117(2A)(c), namely the conduct of the parties, and in addition, he points to s 117(2A)(e) whether a party has been wholly unsuccessful.

7. Dealing with the latter factor, first.  The father points to all of those counts which were ultimately discharged by consent as they had been abandoned by the mother. 

8. Significantly for my purposes, orders were made in that regard over a tranche of hearings as earlier identified by me.  Importantly, a number of counts were abandoned by the mother before either of the parties became represented in these proceedings.  Secondly, a final tranche of orders were made discharging various counts after the parties had each obtained funding pursuant to the Scheme. 

9. To the extent that counts were abandoned by the mother, I accept the submissions made on behalf of the father that the mother was wholly unsuccessful in relation to each of those counts which were, effectively, summarily dismissed. 

10. The father, otherwise, points to, the conduct of the mother in these proceedings.  It is the father’s position that the nature in which the mother has advanced and agitated the entirety of the parenting proceedings have led to the circumstances which the parties now find themselves in.  It is the father’s position that this litigation and the conduct of the mother throughout has caused him to suffer significant mental health difficulties, and that this is one of the reasons why his position is that he is now no longer willing to support time spending between the mother and the child. 

11. Importantly, the father says that leaving aside the substantive parenting proceedings which, as I have indicated, have a very long history, the nature of and the filing of the numerous Contravention Applications by the mother has exacerbated his poor mental health. 

12. At this juncture, they are not matters that I am in a position to make findings about.  They are matters which ground the father’s Initiating Application that has now been filed seeking to deal with the parenting arrangements. 

13. Of significance, however, from my perspective is that the father’s own conduct in these proceedings, and by that, I mean the contravention proceedings, has had an impact on the trajectory of these proceedings.  Significantly from my perspective, the father had an opportunity as early as February 2023, when the mother indicated that she would abandon the contravention proceedings if, indeed, the father bought an application to deal with the final parenting orders which by that stage were not being complied with. 

14. Inexplicably, the father did not take up what to my mind was the very sensible position advanced by the mother at that stage.  I can only be left to opine as to why that might have been.  I have heard the submissions from Mr Christie that the father’s mental health likely played a significant role in the decisions taken or not taken by the father right through to when he ultimately took up that course by the filing of the fresh Initiating Application.  Whatever the case may be, however, it is not lost on me that both of the parties had the opportunity to stem the tide of the contravention proceedings from as early as 27 February 2023. 

15. A range of things unfolded following the hearing on 27 February 2023, as is self-evident from the history that I have earlier identified. Importantly however it was at the hearing on 27 February 2023 that I set the matter down for final hearing and that I made orders pursuant to s 102NA of the Act. Significantly for present purposes, it was following that date that the father incurred the majority of the legal fees and disbursements for which his application now relates. From my perspective, all of those fees could have been avoided and to use the words from Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, “properly advised” the father could have and should have taken the position that he ultimately did in these proceedings at a much earlier date, as I say, stemming the tide of costs and disbursements incurred by him.

16. I also pause here to record that understanding that the father has now taken fresh parenting proceedings, I would have to assume that the expert evidence that the father obtained for the purposes of the contravention proceedings is very well likely to be used in the parenting proceedings that have now been commenced.  I accept that the disbursements incurred to have an expert waiting to give evidence at the final contravention hearing are expenses to which there is no overlap between these proceedings and the substantive proceedings.  But again, as I have already said, all of those costs could have been avoided from as early as 27 February 2023. 

17. I have had regard to the financial circumstances of each of the parties.  The mother does not say that she is unable to meet an order for costs.  The father has set out in his affidavit material his financial circumstances and I have had regard to the same. 

18. What is, exercising my mind of most significance however, are the matters to which I have just referred.  Namely, that the father had it within his power and control to stem the tide of these contravention proceedings from as early as 27 February 2023, yet he did not do so even after he became represented by legal representatives.  I will never know the true reasons as to why that has occurred, other than to understand that the father’s own mental health likely played a role in that process, if I accept what he and his experts say at face value. 

19. It is for all of those reasons that I am not minded to make an order for costs in relation to the contravention proceedings. 

20. I understand that the father has sought an order for costs on an indemnity basis.  However, in circumstances where I am not prepared to make any order for costs, I am not required to consider the same. 

21. For all of those reasons, I now make the following orders. 

    NOTE:

    These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari.

Associate:

Dated:       20 December 2023