Simons and Simons and Ors
[2015] FamCA 150
•11 March 2015
FAMILY COURT OF AUSTRALIA
| SIMONS & SIMONS AND ORS | [2015] FamCA 150 |
| FAMILY LAW – COSTS |
| Family Law Act 1975 (Cth) Cooper & Oakley (No. 2) [2012] FamCAFC 187 |
| APPLICANT WIFE: | Ms Simons |
| RESPONDENT HUSBAND: | Mr Simons |
| 2ND RESPONDENT MATERNAL GRANDPARENTS: | Mrs C Sanna and Mr E Sanna |
| 3RD RESPONDENT MATERNAL AUNT: | Ms F Sanna | ||||
| FILE NUMBER: | MLC | 2476 | of | 2010 | |
| DATE DELIVERED: | 11 March 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| DATE HEARD: | By way of written submissions |
SUBMISSIONS RECEIVED FROM
| SOLICITOR FOR THE RESPONDENT: | Esser Legal |
Orders
That the maternal grandparents Mrs C Sanna and Mr E Sanna and the maternal aunt Ms F Sanna pay the costs of the husband Mr Simons in an amount to be agreed and failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simons & Simons and Ors 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 MELBOURNE |
FILE NUMBER: MLC 2476 of 2010
| Ms Simons |
Applicant Wife
And
| Mr Simons |
Respondent Husband
And
| Mrs C Sanna and Mr E Sanna |
2nd Respondents Maternal Grandparents
And
| Ms F Sanna |
3rd Respondent Maternal Aunt
REASONS FOR COSTS JUDGMENT
On 16 January 2015, I made orders and delivered reasons in a parenting matter involving these parties. As a costs application had been foreshadowed, I made provisions for any application and response to be by written submission. Time limits were set in the orders.
The father of the children who was ultimately successful now seeks costs against the maternal grandparents and maternal aunt (the respondents). His application was contained in a written submission filed on 13 February 2015. He had until 16 February. As there was no indication on the document (as had been required by the order) to say that it had been served, a request was made to the legal practitioner for the applicant. An affidavit was then filed. I am satisfied on the basis of the affidavit of the applicant himself that the submission, and therefore the application for costs, was served by priority post on the respondents.
The respondents had until 2 March to respond. They did not.
Before dealing with the submission, some background is necessary to understand why this case was contentious. I refer to the published reasons for judgment. As the orders were made on 16 January 2015, the statutory appeal period has expired so I have concluded that the issues are no longer contentious.
The respondents to the costs application had sought parenting orders. Their position was opposed by the father, the Independent Children’s Lawyer and the Victorian Department of Human Services. I made the following final orders about their position:
That the maternal grandfather, the maternal grandmother and the maternal aunt are restrained by injunction from:
a.Attending at any school at which the children attend;
b.Attending any extra-curricular activities of the children without an express invitation written by the husband; or
c.From spending any time with or communicating with either of the said children without the written permission of the husband.
The circumstances of this case, as set out now, were unusual. In 2010, the husband was attacked by the wife’s then boyfriend. The husband was seriously injured. He survived. The wife and her boyfriend were charged with offences. The boyfriend pleaded guilty to a serious assault and was gaoled. The wife pleaded not guilty before a jury which found her guilty of attempted murder. In the Supreme Court of Victoria the wife was sentenced to 12 years imprisonment.
The grandparents maintained that the husband set up the wife and argued that his reason was to enable the commencement of an inappropriate sexual relationship with his (now) adult daughter. Having regard to the objective evidence that theory was rejected.
In giving evidence, the grandmother, who was without legal representation, maintained she had raised the children but acknowledged that she had not seen them for five years. More importantly to the issue of the Court’s concern about any adverse influence on the children, she believed her daughter was innocent and had been wrongly imprisoned. She emphatically believed that the husband had sexually abused the (now adult) grand-daughter.
On the same issues, the grandfather’s case was no better. Indeed, he was more emphatic than his wife.
The maternal aunt’s case was equally problematic. She maintained that she had been involved in the lives of the children since birth and it must therefore be obvious that all of these family members had last seen the children when they were about two years of age. Much time has since passed and the evidence was that the children did not know of them. The aunt also believed her sister to be innocent of the wrongdoing to the husband. She disputed that she or her family members would influence the children in any way if they spent time with them.
I found:
·The grandmother would have little hesitation in telling the children that their mother was innocent and that their father was a sexual predator;
·The children did not know their grandparents at all;
·The Court had no concept of what benefit the children would receive from having a relationship with the grandparents in circumstances where the relationship between the husband and his former parents-in-law was so bad;
·There was no evidence as to how any relationship between the aunt and the two children who did not know her, could be implemented.
·The aunt was polarized;
·Much of the evidence of the aunt and the grandparents was really about their wishes to satisfy, in particular, their needs, rather than what was good for the children.
Turning then to the husband’s costs application, it is the general rule, as prescribed in s 117(1) of the Act, that each party should bear their own costs. However, the Court is empowered by s 117(2) of the Act to make an order for costs if it is of the opinion that there are “circumstances that justify it in doing so”. If the Court finds a justifying circumstance, it still has to have regard to the factors in s 117(2A) in considering what order, if any, should be made (see I and I (No 2) (1995) FLC 92-625).
The submissions of the husband addressed the relevant factors in s 117(2A) and I set those out now and my responses where relevant.
The financial circumstances of the parties
There is no evidence before the Court as to the financial circumstances of the respondents. However, my understanding from the evidence of the grandparents was that they were pensioners and I am unsure of the aunt’s income position. Even if they were in unfortunate financial circumstances, that alone would not justify the refusal to make an order. Whilst a party’s financial circumstances are relevant to a determination pursuant to s 117(2A), neither that factor, nor any other factor, is determinative (Cooper & Oakley (No. 2) [2012] FamCAFC 187 at [14]). As the Full Court has observed:
[N]either impecuniosity, nor incapacity to meet an order for costs, can, per se, be determinative of whether an order for costs ought be made; …if either or both were, the impecunious litigant could litigate with impunity - and with immunity against a costs order.
Legal aid
There is no evidence that anyone is in receipt of assistance by way of Legal Aid.
The conduct of the parties
The husband was critical of the respondents’ conduct. The relevant conduct must be that as a litigant (see Prantage & Prantage (2013) FLC 93-545). I found against the respondents and expressed concerns about what they were endeavouring to do in the context of an appalling relationship with the father of the children. He was (and remains) the only parent available for these children. The evidence showed the importance of that relationship not being destabilised.
It is important to observe that the lack of evidence of the grandparents could not be simply attributed to their:
·lack of experience in courts; nor
·lack of legal representation; nor
·inability to prepare for a final hearing.
Nor could it be said they suffered any disadvantage as persons for whom English was not their first language. In saying that, I unhesitatingly observe that an adversarial courtroom is an uninviting place where the lay person could be readily uncomfortable and where the stress of emotional litigation is intense. The language barrier even with assistance of professional interpreters is often a significant handicap. This case had a long gestation. The grandparents had been to this Court on a number of occasions and there had been substantial other litigation in the Children’s Court.
The respondents had the opportunity to present evidence in affidavit form. When that material (such as it was) was put to them, they could not remember having seen it before. Despite the absence of that material which was largely irrelevant in any event, they were permitted to give oral evidence to support the orders they were seeking. Bearing in mind the mandate of the Court to make an order about the children’s future best interests, things did not get any better with that attempt.
The Court at least had the benefit of a positive inquiry by a Family Consultant and the senior officer of the Department of Human Services. Their inquiries of the respondents did not elicit any more material of assistance to the Court about how the extended family would have promoted the children’s welfare and interests. Sadly, their position was about them rather than the children.
The respondents’ position did not change after the receipt of the comprehensive and reasoned family report. The Department’s view had been known for a long time. Needless to say, the father’s position and those objective parties supporting him did not change either but the relevance of that was that the respondents well knew the challenge they had to meet.
The grandparents and the aunt had been warned about the importance of putting evidence before the Court long before the commencement of the final hearing.
The absence of any positive proposal was disconcerting but not as much as their accusations against the father of the children. Those accusations were just that. There was no evidence in any cogent fashion nor, importantly, had it been part of the criminal proceedings where one might have thought it relevant. In the criminal proceedings against the wife, she had been represented by experienced counsel. She appealed unsuccessfully to the Victorian Court of Appeal. She made an application also unsuccessfully for special leave to the High Court of Australia. Much thought had obviously gone into the criminal law proceedings. Had the conspiracy theory of the grandparents any merit, it would have been aired then. If it was, no evidence was led about it in these proceedings.
This was just a case of a family embittered by their unfortunate circumstances much of which was the doing of their daughter. The grandparents and the aunt were obviously aware that until the very commencement of this hearing, the wife had been represented by lawyers. That representation changed only days prior to the commencement of the hearing but after affidavit material had been prepared and filed. The change of legal practitioner saw the new lawyer attend the Court, obtain instructions by video link from the prison and then indicate that the wife was not participating further. The wife’s case had been pleaded on the basis that the children should be removed from the father and be placed in the care of the grandparents. It defies logic to think that the grandparents did not understand what they were being asked to do or what they were involved in.
The maternal aunt described her extensive background in school teaching so the question of the welfare of the children would have been something about which she would have been conscious.
Thus, as litigants, the grandparents and to some extent, the aunt, did a poor job in preparing for a significant parenting dispute. They well knew the position adopted by those opposing their application and they put the father of the children, the legal aid authorities and the Victorian Department of Human Services to enormous inconvenience and unnecessary expense.
It was submitted that the respondents were wholly unsuccessful. For the reasons just set out above, I agree.
Written settlement offers
No written offers to resolve the dispute were made and perhaps that is understandable having regard to the facts because there was little that could be negotiated. Nothing has been suggested that any offer to contribute towards costs has since been made.
Any other relevant matters
On the issue of other matters, the applicant submitted:
·The husband had no option but to oppose the grandparents and aunt having regard to the concerns of the Department;
·Participation was forced upon the husband as a result of which he incurred costs;
·The determination was based on what was best for the children;
·The findings were unflattering to the grandparents;
·The grandparents and aunt did not accept the expert opinion of the single expert witness nor the responsible person within the Department.
In simple terms, these parties wasted the Court’s time let alone the costs, time and expense of the applicant.
Conclusion
I am satisfied that the circumstances of this case justify the making of an order for costs.
Quantum of Costs
The husband’s submission was that costs should be awarded on an indemnity basis. All of the usual and relevant authorities were mentioned (save as to Prantage (supra)).
It was submitted that a “party/party costs order” could not do justice to the husband because he was forced into the proceedings and that was therefore an exceptional circumstance.
Nothing was said about costs agreements or quantum of costs nor was anything said as to what amount was being sought. That is not an impediment to the making of an order but it gives rise to two problems. First, the Court does not know what impact any order would have on the financial position of the applicant let alone the respondents. Secondly, not making a specific order gives rise to the potential for another round of litigation if items claimed are disputed.
In respect of “indemnity” costs (whatever that was meant to mean to the husband), the submission did not assist because there was no costs agreement attached. That too is not a bar to making an order but I observe that it too makes the task of understanding what impact a costs order (or a refusal to make one) would have on the applicant.
Before contemplating an order which would give the applicant all of his costs incurred, the Court should contemplate Rule 19.18 of the Rules which provides for the method of calculation of costs. In particular, Rule 19.18(1) provides that the Court may order that a party is entitled to costs on a number of different bases, one of which is a specific amount.
Rule 19.18(3) of the Rules provides that the Court may consider a number of factors in making an order. They include:
(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.
In Prantage (supra), the Full Court referred to the settled law relating to indemnity costs and the Full Court decision of Kohan and Kohan (1993) FLC 92-340. The Court emphasised the well accepted proposition that indemnity costs orders are “a very great departure from the normal standard” and that they should only be ordered in exceptional circumstances. Some of those circumstances were summarised by Holden J in Munday v Bowman (1997) FLC 92-784 at page 84,660:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397.
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra)).
(c)Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v. Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)).
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)).
(e)An imprudent refusal of an offer to compromise.
The clear message of the Full Court in Prantage (supra) can be seen in the following extracts:
Per: Thackray and Ryan JJ at [96-97] citing Cooper and Merkel JJ in Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
[T]here are “two seemingly irreconcilable objectives” at stake. Placing great emphasis on the importance of one objective, namely “relieving a successful litigant from the burden of costs which that litigant should not have been required to incur” will inevitably lead to insufficient emphasis being placed on the importance of the other objective of “protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis”.
In our view, once it is recognised that ensuring access to justice is one of the key objectives of the “usual rule”, the claimed increasing disparity between scale costs and those being charged by lawyers becomes as much an argument against the awarding of indemnity costs as it is in favour of costs being ordered on that basis.
In Prantage (supra), Murphy J said at [151]:
[T]he Act, the Rules read as a whole, and existing authority each evidence a clear intention that a significant disparity between the level of costs provided for in Schedule 3 and the fees payable by a client to their legal practitioner militates against an award of indemnity costs or, if the circumstances otherwise warrant such an order, operates as a brake on the quantum that might otherwise be awarded.
His Honour went on to observe at [152]:
Section 117(1) is important in that respect. Indemnity costs are confined to “an exceedingly rare situation”
His Honour then said such a concept was not to be viewed as a fetter on this Court’s discretion to award costs or indemnity costs if justice so required it but rather, it recognised that an order for indemnity costs has a particular context in this jurisdiction.
Murphy J then went on to observe that the rules of the Court seek to underscore an intention to keep costs to a minimum including obliging the Court to apply them in a way that “promotes the saving of costs” (r 1.07(1)(d)).
Finally, his Honour observed at [162]:
If the justice of the case requires a departure from the “usual rule” in this Court that each party shall bear his or her own costs and, in turn, “a very great departure” from the usual rule that any such order should be on a party and party basis, so as to order indemnity costs, consideration should, in my view, be given, separately, to how the terms of any such order might affect the quantum of any such order.
Any costs order must therefore be viewed in the light of those statements. There must be something about this case such as to justify a very great departure from the normal standard. That is, Parliament intended that normally, litigants pay their own costs in this jurisdiction. If there is a justification for departing from the principle that each litigant should pay his or her own costs, the circumstances pointing to a departure from the Rules have to be exceptional. Murphy J used different language by saying that if there was a justification for making an order for costs, a departure from the process identified by the Rules could only arise in an exceedingly rare situation. None of those observations, however, can fetter the Court’s discretion.
If one looks for the “exceedingly rare”, there has to be a yardstick as to what is the norm bearing in mind there has to be some justification for initially departing from the rule that each party pays their own costs. Many litigants in this Court are unrepresented and, not always because of financial constraints. Using the concepts considered above, can the Court say that, of unrepresented non-English speaking litigants in a parenting case that if properly advised, they would know they had no prospect of success? That would obviously depend upon whether they were properly advised. It would be dangerous to presume in this case that the grandparents and aunt commenced or continued their applications for some ulterior motive such as to hurt the husband or the children even if it must be presumed that, after the experts’ positions were known, they disregarded the clear expert advice. Unlike the civil jurisdiction, can it be said that the conspiracy allegations were like allegations of fraud with no cogent evidence to support them? Heightened emotions run deep when, as the grandfather pleaded, he had not much longer to live and he saw the need for contact to be permitted even if it was not any more than satisfying his needs.
Groundless contentions are well known in the civil jurisdiction and they traditionally delay hearings and cost other litigants and the community, expense but is it satisfactory to make a punitive costs order against the respondents (which fully compensates the applicant) where the parenting jurisdiction is not only highly discretionary but also gives grandparents a specific right of audience in relation to their relationships with children? Is it appropriate to consider imprudence in relation to compromise once an expert (or in this case two) advises that the children should have their rights of contact terminated because of poor evidentiary preparation, lack of understanding of the role of the Court or simply being misguided?
The clear message from Prantage (supra) is that access to justice is an important concept even if the application is misguided. Costs are not intended as punishment but rather to compensate the litigant who has little choice (as occurred here) but to participate. As an access to justice issue, if the applicant chose to pay a premium for his legal representation, that is his choice.
Human nature being what it is, I accept that the grandparents and aunt, no doubt grieving about the loss of the liberty of their daughter, were misguided as litigants and did nothing to help the Court sort out what was best for the children bearing in mind the standards set in s 60CA and s 65D(1). I could not find in those circumstances that their conduct as litigants was exceedingly rare; quite the opposite.
Notwithstanding my observations about the grandparents’ view of the husband, I could not find that their conduct of the proceedings was motivated by anger and/or resentment towards him. Nothing suggested any other ulterior motive. However, on the assumption that they firmly believed what they said, they had an obligation to produce the evidence. This case was unusual because the adult daughter had been a party and for reasons which are set out in the judgment, she did not attend. She was participating in a course and had wanted to attend by electronic means and that was refused. Even so, her counsel in a preliminary hearing indicated her case would not be run on the basis of the allegations which had been made in writing against her father. Those allegations had been said by objective evidence to be groundless in any event. The grandparents and aunt must have known those details because it was said that there was contact between them all and, importantly, the daughter’s allegations formed the basis of their belief. The failure to produce this evidence was therefore telling.
I conclude, therefore, that there are circumstances that justify the making of an order for costs because of the lack of attention to important considerations such as the presentation of relevant evidence but that those circumstances are not so exceptional or exceedingly rare as to justify the making of an order for costs on an indemnity basis.
I have taken account of the fact that making an order for costs on a solicitor/client basis may not be just to the applicant but he did not present any details other than those that I have set out above. In my view therefore, this is not an exceptional case.
An order will be made for costs on the basis of an agreement and failing agreement as assessed.
I certify that the preceding Fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 March 2015.
Associate:
Date: 11 March 2015
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