Simon & Watt

[2008] FamCA 449

FAMILY COURT OF AUSTRALIA

SIMON & WATT [2008] FamCA 449

FAMILY LAW – Costs – Husband failed to attend hearing

APPLICANT: Mr Simon

RESPONDENT: Ms Watt

FILE NUMBER: TVC 487 of 2007

DATE DELIVERED: 24 June 2008

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Monteith J

HEARING DATE: Submissions

REPRESENTATION

FOR THE APPLICANT: Self represented

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Kerri Fretwell, Giudes and Elliott

ORDER

1. That the respondent mother’s costs of and incidental to these proceedings including all costs relating to the psychiatric / psychological assessment made by Mr W be paid by the applicant father, such costs to be taxed in default of agreement.

IT IS NOTED that publication of this judgment under the pseudonym Simon and Watt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 487  of 2007

Mr Simon

Applicant

And

Ms Watt

Respondent

REASONS FOR JUDGMENT

1. On 8 April 2008, I made orders with respect to three children in accordance with a Response which had been filed by the mother on 29 July 2007, as amended by Orders Sought in Exhibit 1 which was a letter that had passed between solicitors.

2. Mr Hopes, a partner in the firm of Giudes and Elliott, appeared on behalf of the respondent mother and there was no appearance on behalf of the applicant.  However, Ms Dixon, a partner in the firm of Roberts Nehmer McKee appeared by way of telephone link and advised the Court that her instructions had been withdrawn by the applicant father, that he was aware that the matter was to proceed before me that day and that he had advised that he wanted to withdraw his application.

3. On that day, I made an order that “the question of costs of and incidental to these proceedings is reserved, to be addressed by written submissions within thirty (30) days”.

4. In compliance with that order, I have received a letter from the applicant father dated 23 April 2008, a letter from Giudes and Elliott dated 7 May 2008, a letter from the respondent mother dated 8 May 2008 and a letter from Roberts Nehmer McKee dated 13 May 2008.

5. In the letter from the applicant father, he asserts that he was unaware of the Court hearing and that the statements in the transcript by Mr Hopes and Ms Dixon that he was aware of the Court hearing are incorrect. 

6. He advises that he was married in early April 2008 and was on leave from Wednesday 2 April 2008 to Tuesday 15 April 2008.  He further advises that his former solicitor, Ms Dixon, was aware that he was being married in April 2008, was notified on 5 March that the application before the Court was to be withdrawn and proceedings to cease and was expected to represent him.

7. He then goes on to advise the amounts that he has paid in child support, school fees and legal fees and that I should assess the issue of costs in the light of this information.

8. In his letter, he advises that $19,036 has been paid in child support for the children although it is not entirely clear over what period.  The respondent mother in her letter of 8 May 2008 states:

   “[The father] claims that he has paid $19,036 in child support for the children.  My bank account records show that the figure received has been $8,419.17 since 2005 to 28 April 2008.  I believe there are arrears but I am not aware of the amount.”

9. In those circumstances, I am unable to determine what amount the applicant father has paid. 

10. In the letter from Giudes and Elliott of 7 May 2008, it appears from documents attached from the Child Support Agency that on 15 April 2008, an assessment for the period 1 April 2008 to 30 June 2008 was made requiring the applicant father to pay $1,969.42 a month calculated on a child support income of $92,426.  It also shows that the child support income amount for the respondent mother was $51,506.

11. In the letter from Roberts Nehmer McKee, Ms Dixon advises that on or about 5 March 2008, she had a discussion with the applicant father where he indicated  he wanted to end the proceedings and finish the matter.  She advises that she told him that it was not as simple as that because the respondent mother had filed a Response. He then instructed her to contact the solicitors for the respondent mother and propose that the proceedings be ceased and there be no order as to costs.  That proposal was rejected and that rejection, according to Ms Dixon was communicated to the applicant father.

12. Ms Dixon goes on to advise that on 25 March she discussed the position with the applicant father, including the upcoming Court date.  She advised him that the respondent mother’s solicitors had proposed new orders be made, and if those orders were agreed to, there would be no application for costs against the applicant father.

13. Ms Dixon advises that her client’s clear instructions were that he was not prepared to agree to the orders they proposed or further negotiate, and he simply wanted the Application to be discontinued.  Ms Dixon advises that she explained to her client the process of withdrawing the Application and advised that unless there was agreement, there was likely to be a costs argument.

14. She advises that the conversation concluded with the applicant father indicating that he wanted to withdraw the Application and would deal with the consequences himself.  Thus, her further representation would not be required.

15. On 27 March 2008, Ms Dixon sent a letter to the applicant father concerning those instructions and enclosing a Notice of Discontinuance and a Notice of Address for Service for the father to file.

16. She advises that given that she had not heard from the applicant father to confirm that he had filed a Notice of Discontinuance, she contacted the Court and was advised that the Notice of Discontinuance had not been filed and she endeavoured to contact the father by telephone and with an e.mail confirming the Court mention.

17. She advises that on 8 April, she did not hold instructions to act for the applicant father, in fact, she had had her instructions withdrawn and as a matter of courtesy to the Court, advised the Court accordingly.

18. She says that although she had some knowledge that the father was intending to marry, she was unaware of the date.

19. In the letter from Giudes and Elliott, it is pointed out that the first day of the LAT hearing took place on 4 December 2007 and at the conclusion of that day, it was set down for a second day, scheduled for 7 February 2008.  I am reminded that on the first day of the LAT hearing, it was the applicant father who requested that both parties be psychiatrically examined and I ordered that the father was to be responsible for the payment of any fees associated with the psychiatric assessment.

20. Apparently the appointments for the preparation of psychiatric reports to be prepared by Mr W could not be obtained prior to the scheduled adjourned date of 7 February 2008 and the parties sought an administrative adjournment from the Court.

21. The Court advised by letter dated 19 December 2007 to the respective solicitors that the matter had been removed from the list for 7 February 2008 and relisted for 10.00 am on 8 April 2008.

22. The parties were to attend their initial appointment with Mr W for the purposes of the assessment on 26 February 2008.  The father had an appointment in the morning and the mother had an appointment in the afternoon.  The father cancelled his appointment but the mother attended.

23. In March, ‘without prejudice’ conversations took place between solicitors and as a result, correspondence was forwarded to Roberts Nehmer McKee dated 12 March 2008 which became Exhibit 1 in these proceedings and formed the basis on which I made the final orders on 8 April 2008.

24. In the father’s Initiating Application, the father sought orders that the two daughters live with him and that the mother spend time with the children each alternate weekend and during school holiday periods.  The father did not seek any order in relation to costs.

25. In the mother’s Response, she sought orders not only with respect to the two daughters but also to the older child, a son.  The mother’s proposal was that the son live with her and spend each alternate weekend with the father.  However, she proposed with respect to the two daughters, that they live with each parent on an alternate weekly basis.  There was a provision for all children to spend equal time with the parents during school holidays and also provision for special days.  She sought an order that the father pay her costs of and incidental to the proceedings.

26. The order which was in place, prior to these proceedings commencing, made provision for the children to live with each parent on an equal basis.

27. It is pointed out that the father failed to attend the second day of the LAT hearing on 8 April 2008 when I made the final orders, and that the father would obviously have been aware for some time that he intended to be married in early April, it is argued therefore, that there was sufficient time for the father to provide his solicitors with instructions to seek a further administrative adjournment on the second day of the LAT hearing to a time which was more convenient for him.  He failed to do so.

28. It is pointed out that between 26 February 2008 and 8 April 2008, the father failed to reschedule any appointment with Mr W for the purposes of the psychiatric assessment.

29. It is submitted that the orders ultimately made by the Court as a result of the correspondence forwarded to Roberts Nehmer McKee on 12 March 2008 were  in line with the proposals put forward verbally by the wife’s solicitors to the husband’s solicitors and that they were of the understanding that they were orders to which the father would agree.

30. It is pointed out that when the solicitors for the wife put forward the proposals, that was done on the basis that each party would bear their own costs but that was obviously taking into account the fact that the second day of the LAT hearing would not be taking place and the matter would be resolved amicably.

31. It is pointed out that pursuant to the documents attached to their letter, it shows that the father had a taxable income for the financial year ended 30 June 2007 of $92,426 which was some $40,000 per annum in excess of the wife’s income.

32. It is submitted that a costs order should be made in the wife’s favour for the following reasons:

    (a)The wife has been wholly successful in the proceedings due to the husband’s basically “walking away”;

    (b)The husband has a substantially higher earning capacity than the wife;

    (c)That the legal fees which the husband refers to in his letter would have encompassed Roberts Nehmer McKee acting on his behalf when the parties initially resolve property and child matters which was the result of a court order made on 10 February 2006, a copy of which is attached to the husband’s Initiating Application.

33. My power to make costs orders is contained in s 117 of the Family Law Act 1975. I set it out hereunder:

    (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, 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) and (5) 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.

    (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.

    (3)To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.

    (4)However, in proceedings in which an independent children's lawyer for a child has been appointed, if:

    (a)a party to the proceedings has received legal aid in respect of the proceedings; or

    (b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;

    the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.

    (5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.

34. My discretion to make an order for costs under s 117(2) is that it must be just. That discretion is fettered by the provisions of s 117(2)(A). Taking into account all of the matters set out above, I have come to the conclusion that it is just and equitable that I should make an order for costs against the applicant father in these proceedings.

35. Consequently, I order:

    1.That the respondent mother’s costs of and incidental to these proceedings including all costs relating to the psychiatric / psychological assessment made by Mr W be paid by the applicant father, such costs to be taxed in default of agreement.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith.

Associate: 

Date: