SIDNEY & LESSING

[2015] FamCA 1061

FAMILY COURT OF AUSTRALIA

SIDNEY & LESSING [2015] FamCA 1061

FAMILY LAW – COSTS – Application for costs in a parenting case dismissed

Family Law Act 1975 (Cth)

Hawkins & Roe (2012) 47 FamLR 526

APPLICANT: Mr Sidney

RESPONDENT: Ms Lessing

FILE NUMBER: SYC 4179 of 2009

DATE DELIVERED: 10 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 10 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Boyle

SOLICITOR FOR THE APPLICANT: Watts McCray

COUNSEL FOR THE RESPONDENT: Ms Petrie

SOLICITOR FOR THE RESPONDENT: Blackman Legal

Orders

1. The Application in a Case filed by the father on 31 August 2015 be dismissed.

2. The mother’s oral application for costs against the father be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sidney & Lessing 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 SYDNEY

FILE NUMBER: SYC 4179 of 2009

Mr Sidney  

Applicant

And

Ms Lessing

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 4 August 2015 I delivered reasons for judgment and made final parenting orders in this matter. Those orders involved the parties’ two children, B and C. No order was made in respect of B. The final orders provided for the parties to have equal shared parental responsibility in relation to C and for C to be permitted to relocate to Canberra to live with her father, her step-mother and her two younger step-brothers.

2. By way of Application in a Case filed 31 August 2015, the father seeks that the mother pay his costs on an indemnity basis as agreed or certified under the Family Law Rules from 28 May 2015, which is the date B got on a bus and left for Canberra. In the alternative, the father seeks the mother pay his costs on a party/party basis as agreed or assessed from the same date. The father has provided itemised corroboration that on an indemnity basis those costs were $38,214 and he asserts that on a party/party basis, they would be assessed at $24,729.

3. By way of the history of the litigation, the mother commenced parenting proceedings on 14 October 2014. She sought that the children remain residing with her in Sydney and the father be restrained from changing their residence to Canberra.

4. The father filed a response to the mother’s Initiating Application on 28 November 2014.

5. On 10 December 2014, Senior Registrar Campbell made orders which required the children to continue to ordinarily live in Sydney and later that month the father relocated to Canberra with his new wife. At that time the two children remained ordinarily residing in Sydney with their mother. That was a change of a long standing parenting arrangement.

6. On 28 May 2015 B relocated to Canberra to live with his father on his own motion.

7. On 4 August 2015 I made the orders referred to above, which permitted C to relocate to Canberra to ordinarily live with her father and specified the arrangements that were to be made in relation to her continuing time and communication with her mother.

8. In relation to the relevant law, ordinarily under the Family Law Act 1975 (Cth) (the Act) each party bears their own costs as is mandated by s 117(1) of the Act. The court, if it considers just, may make an order as to costs if the court is of the opinion there are circumstances to justify doing so (s 117(2) of the Act). In considering whether or not a costs order should be made, the court shall have regard to the matters set out in s 117(2A) which are as follows:

   (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.

9. These are parenting proceedings. The majority of the Full Court in Hawkins & Roe (2012) 47 FamLR 526 said at [13] and [14] that:

   13. In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

   14. In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts

10. They further said:

    146. While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father’s conduct of his case at the trial. Counsel for the mother conceded in oral submissions before us that at no point during the trial did his Honour direct the father to cease repetitive questioning, or to move his questioning more quickly, for example.

    147. Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

11. I invited counsel for the father to address me on those matters in this case, but so far as I heard, there was no assertion that the mother in this case showed an absence of preparedness to compromise in the face of unambiguous expert evidence, nor that she made false allegations, nor was it asserted that she was clearly motivated by self-interests rather than the interests of the child.

12. Turning to the statutory considerations in s 117(2A) of the Act, the first is the financial circumstances of each of the parties to the proceedings. The father emphasises, what I accept is the fact, that there is a disparity between the financial position of the two parties. I pause to say that none of the financial information contained in the sworn evidence in this application is the subject of any forensic testing before me, although both sides have sought to tender material for the purposes of putting in doubt some of the things that have been said in the sworn evidence. The father earns about $53,000 gross per annum on his affidavit evidence. He is the sole earner in his household and that household comprises of his wife, the two children of the marriage with the applicant mother and the two children of his current marriage. Although Exhibit 6 was tendered on the basis that I would find that I could not put any reliance upon his assertions in his affidavit as to what his income was, Exhibit 6 seems to be consistent with what he said in his affidavit about his income. The father asserts that his current mortgage payments are $1,335 per month and that the balance of his income goes on expenses.

13. The mother says in her financial statement that her gross weekly income is $3,895 per week, which is a bit over $200,000 a year. Counsel for the father points to another document which is attached to the mother’s affidavit being a document which has been generated by the Child Support Agency which records a provisional income of $318,000 per year. That document was issued in October 2015. It may well take into account the bonus the mother had received in late 2014 which, on the information I have been given, was at least $70,000. Although there is no evidence, it was asserted from the bar table that the mother’s bonus this year is only expected to be about $10,000 and that is as a result of the time spent away from, and the mother’s lack of focus on, her employment as a result of this litigation. That was not seriously questioned by counsel for the father.

14. The mother applied for a further home loan in May 2014 to assist her in the payment of a tax debt. She got a second loan in April 2015 to assist her with the costs of the trial. She asserts that her major asset, which is the property in which she lives, is valued at $1.2 million and she has a mortgage to Westpac on that property of about $985,000. She asserts there are debts owed to her sister and brother-in-law of about $20,000. I do not have a complete confidence in the picture I have in relation to the mother’s financial position but what I have outlined is probably sufficiently accurate for the purposes of this application.

15. I note that as part of the mother’s evidence, she indicates that her expenses actually exceed her income and those expenses include the payment to the father of an amount of child support in the sum of $486 per week. That is income to the father that is not included in his gross figure of $53,000 per annum. There is also some information about the father seeking payment for half of the children’s extra-curricular activities.

16. The father points to the fact that the mother took B and C to the World Cup in the United Kingdom recently, but I accept the mother’s plan to do this was well-known at the time of the parenting hearing and that the mother had saved for some considerable time to do this.

17. Whilst there is a disparity in the financial positions of the parties in favour of the mother, it is not so overwhelming that it would be a matter of any great weight in the circumstances of this parenting case.

18. The next matter to take into consideration under s 117(2A) of the Act is whether or not either party is assisted by a grant of legal aid and I accept that neither party is in this case.

19. The next matter relates to the conduct of the parties in the proceedings. The father points to the mother’s “conduct” of making an application that effectively split the children. My reasons for judgment discusses how the children became “split” as at the date of hearing. It was not fanciful for the mother to maintain her application about C after B had left and her inquiry during the hearing about the circumstances of B leaving is not a matter that could or should be weighed against the mother in the context of this costs application.

20. The next matter is whether or not the proceedings were necessitated by a failure of a party to the proceedings to comply with previous court orders and the father concedes that that is an irrelevant matter.

21. The father in his written submission conflates considerations (e) and (f) under s 117(2A) of the Act. Those two matters go firstly to whether or not a party has been wholly unsuccessful in the proceedings and secondly, whether or not an offer was made in writing to settle the proceedings and the terms of any such offer. Counsel for the father makes the following written submissions (dated 10 November 2015):

    10.The mother sought orders up until the hearing for both children to live with her.  Her position then changed with respect to [B], and there was an agreement that no orders should be made with respect to [B].

    11.The father put an offer to the mother on 9 July 2015, prior to the hearing commencing on 20 July 2015.  That offer was for both children to live with the father in Canberra, and spend time with the mother in a five week cycle on the first, third and fifth weekend from 7.30pm Friday to 7.30pm Sunday, for [B] subject to his agreement around sporting and social commitments, and for one half of the school holidays and on special occasions.

    12.The orders made on 4 August 2015 provide for no orders with respect to [B], and that [C] spend time with her mother on alternate weekends. During the course of the hearing there was agreement that no orders would be made with respect to [B].

    13.The mother was wholly unsuccessful in her application, and the father was wholly successful in his.  The father offered more time with [C] than was ultimately ordered by the Court.

    14.The time ordered for the mother to spend with [C] during the July school holidays of 10 days as opposed to half is less than the time previously offered by the father. 

22. The general thrust of the father’s submissions are that the final result is consistent with the father’s position as unequivocally stated. Those arguments are addressed in the case outline document prepared on behalf of the mother which are as follows:  

    4.27The Mother proposes to deal with sections 117(2A)(e) and (f) together.

    4.28The Father was not wholly successful in the proceedings as asserted in his Affidavit and the Mother draws the Court’s attention to the interim parenting orders made in the proceedings on 10 December 2014 restraining the Father from relocating the children’s residence from Sydney to Canberra pending final hearing.

    4.29The Father relies on a settlement offer made to the Mother dated 9 July 2015.

    4.30The final parenting orders ultimately made in the proceedings are significantly different to those orders proposed by the Father in his offer dated 9 July 2015.

    4.31In such offer the Father sought that orders be made in relation to both children. However, at the final hearing the parties consented to there being no orders made in relation to the child B.

    4.32The Father contends that the Final Orders made by the Court on 4 August 2015 were less favourable in relation to the Mother’s time during school term than that provided for in his offer dated 9 July 2015.

    4.33The Mother submits that this was not the case in circumstances where, in addition to the orders providing that she be able to spend time with [C] each alternate weekend during school term, the Mother may also pursuant to order 5.3 spend time with [C] in Canberra upon the Mother giving 2 days’ notice to the Father that she will be in Canberra if agreed between the parties.

    4.34Further, pursuant to order 5.4 the Mother may have additional time with C and what can be inferred [B] during [B’s] rugby season between 10.00am Saturday and 5.00pm Sunday, on two weekends per term, with the Mother to give the Father no less than 7 days’ notice in writing of her intention to exercise such time.

    4.35The Father’s proposal for the Mother to spend time with [C] on the first, third and fifth weekends of a five week cycle during school terms was simply impracticable and would result in [C] having significantly greater periods away from Canberra including on consecutive weekends. It would also result in both parties incurring greater travel expenses.

    4.36In relation to school holiday time, the Mother did in fact receive additional time to that provided for in the Father’s offer dated 9 July 2015 whereby, pursuant to order 5.2.3, the Mother may spend time with [C] during the July school holidays for 10 days.

    4.37The Final Parenting Orders dated 4 August 2015 also provide for an additional order not addressed in the Father’s settlement offer dated 9 July 2015, whereby the parties are to do all things necessary to enrol [C] at [D School] from 2017 should [C’s] circumstances change significantly and she return to Sydney in the future.

    4.38Accordingly, for the reasons outlined above, the Father’s contention that his application was wholly successful is simply not the case and the Final Parenting Orders dated 4 August 2015 are quite different to that proposed by the Father in his settlement offer dated 9 July 2015.

23. True it is there was a letter written by the lawyers for the father to the lawyers for the mother dated 9 July 2015 which was annexure D to the father’s affidavit. That letter is said to form the basis upon which some consideration be made in the father’s favour for making a costs order. Importantly the orders sought in that letter do include an order being made in respect of B which was an order that was never made. There are other differences as set out in the mother’s submissions.

24. Overall I accept what is said in the mother’s submissions, namely, that the father was not wholly successful in the proceedings and the mother was not wholly unsuccessful. I am also of the view that no offer was made to settle the proceedings in terms that were unrealistically or unacceptably ignored.

25. There is no other matter which needs consideration under s 117(2A) of the Act.

26. I conclude that there is no basis for a finding that it would be just to depart from the primary position set out in s 117(1) of the Act. A cost order will not be made, either on a party/party basis and certainly not on an indemnity basis. Accordingly I dismiss the Application in a Case filed by the father on 31 August 2015.

27. An application for costs in respect of the father’s costs application is made by the mother on the basis the father has been wholly unsuccessful. There is considerable merit in that application, however, I balk at making a costs order on the basis of the disparity in the financial position of the parties which is of some significance in the context of dealing with the costs of the costs application. I will dismiss the mother’s costs application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 10 November 2015

Associate: 

Date:  25.11.15