Simson and Radley
[2020] FamCA 208
•3 April 2020
FAMILY COURT OF AUSTRALIA
| SIMSON & RADLEY | [2020] FamCA 208 |
| FAMILY LAW – COSTS – Circumstances justifying an order – Where the father seeks costs on an indemnity basis – Where the father asserts the mother was wholly unsuccessful – Where the mother was not wholly unsuccessful – Where the father was unable to challenge the evidence of the mother’s psychologist due to the mother’s conduct – Where the mother unsuccessfully opposed the father’s objection to evidence of the mother’s psychologist being led at trial – Where the father asserts the mother gave false or misleading evidence at trial – Consideration of section 117(2A) of the Family Law Act 1975 (Cth) – Orders |
| Family Law Act 1975 (Cth) ss 117, 117(2A), 117AB Family Law Legilsation Amendment (Family Violence and Other Measures) Act 2011 (Cth) s 40 Family Law Rules 2004 (Cth) rr 19.08(1), 19.08(3), 19.18(1), 19.18(3), sch 3 |
| Kohan & Kohan (1993) FLC 92-340 Replacement Explanatory Memorandum to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth) |
| APPLICANT: | Mr Simson |
| RESPONDENT: | Ms Radley |
| FILE NUMBER: | DNC | 498 | of | 2016 |
| DATE DELIVERED: | 3 April 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 17 January 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tippett QC |
| SOLICITOR FOR THE APPLICANT: | Maley Barristers & Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Farmer |
| SOLICITOR FOR THE RESPONDENT: | Withnalls Lawyers |
Orders
That the mother pay the father’s costs fixed in the sum of FOUR THOUSAND FOUR HUNDRED AND TWENTY SIX DOLLARS ($4,426) within one hundred and twenty (120) days of the date of this order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simson & Radley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: DNC 498 of 2016
| Mr Simson |
Applicant
And
| Ms Radley |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 28 September 2018, Ms Radley (“the mother”) sought orders concerning the future parenting arrangements for X born in 2014 (“the child”). The orders sought by the mother included an order for equal shared parental responsibility, that the child live with her and that she be permitted to relocate the residence of the child to the United Kingdom.
If relocation was not permitted then the mother sought that the child spend significant and substantial time with the father.
By Amended Response filed 30 November 2018, Mr Simson (“the father”) opposed the mother’s orders and in particular that the mother be permitted to relocate the child to the United Kingdom.
The father sought orders that provided for an incremental increase in his time with the child leading to shared care and equal time.
The trial proceedings commenced on 12 August 2019 and judgment was reserved on 14 August 2019. Judgment was delivered on 6 November 2019[1] and orders were made summarised as follows:-
(1)That the parties have equal shared parental responsibility for the child;
(2)That the child live with the mother;
(3)That the child spend significant and substantial time with the father each alternate weekend and for one half of school holiday periods.
[1]Radley & Simson [2017] FamCA 808.
Whilst the mother was not successful in securing an order that would have allowed the residence of the child to be relocated to the United Kingdom, orders were made that provided for each party to take the child on an overseas holiday, at least annually, subject to certain conditions.
By Application in a Case filed 9 December 2019, the father seeks that the mother “pay the applicant father’s costs on an indemnity basis”. The application is supported by an affidavit of the father in which he deposes that for the purposes of the proceedings, he had entered into a costs agreement with his current solicitors on 14 October 2016.[2]
[2] Affidavit of the father filed 4 December 2019 at [3].
Upon closer consideration, there are two components to the father’s application for costs. He seeks costs thrown away arising from the filing, by the mother, of an affidavit of her psychologist Ms B on 4 February 2019, on which she intended to rely. He also seeks “costs relating to a parenting application by the respondent mother that included a proposal to relocate [the child] to reside permanently with the mother in the United Kingdom. The issue of relocation was the only substantive issue before the Court…”.
APPLICATION FOR COSTS
Pursuant to sub-r 19.08(1) of the Family Law Rules 2004 (Cth) (“the Rules”), the father has applied for orders that the wife pay his costs.
The father also seeks that the order for costs be determined on an indemnity basis. Subrule 19.08(3) provides:-
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.
The method of calculation of costs is referred to in sub-r 19.18(1) of the Rules which provides:-
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.
Subrule 19.18(3) of the Rules provides that 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.
In considering what orders should be made, if any, in respect of the husband’s costs s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to have regard to the following:-
(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.
Accordingly, I consider that I have a wide discretion in respect of matters relating to a potential costs order.
EVIDENCE OF THE PSYCHOLOGIST
Following trial direction orders, the matter was listed for trial on 4 March 2019. Orders were made that the mother file all affidavits of evidence in chief by 28 September 2019. On 24 January 2019, orders were made that any objections to affidavit evidence be contained in a notice of objection to be filed by 22 February 2019, with case outline documents to be filed by 1 March 2019.
On 4 February 2019, the mother caused the affidavit of Ms B to be filed. The father filed an objection to the affidavit of Ms B on 22 February 2019. On 4 March 2019 the following orders were made:-
(1)The listing of the trial scheduled to commence on 4 March 2019 is vacated.
(2)The matter is listed for trial as a reserve matter in the week commencing 19 August 2019 (three days allowed).
(3)Leave is given for the applicant mother to rely upon the affidavit of Ms B filed 4 February 2019.
(4)Leave is given to the respondent father to file and serve any further affidavits of evidence restricted to the issue of the applicant mother’s diagnosis of Post-Traumatic Stress Disorder and the impact on her ability to parent the subject child by 4.00 pm on 12 July 2019.
(5)The respondent father’s application for costs thrown away is reserved to the final hearing.
On 17 May 2019, the father filed an Application in a Case seeking orders that the leave given to the mother to rely upon the affidavit of Ms B be withdrawn. The father also sought the costs of the application
On 10 July 2019 I ordered that the affidavit of Ms B, filed 4 February 2019, be struck out.
The father did not accept the diagnosis of Ms B that the mother presented with Post-Traumatic Stress Disorder (“PTSD”). Moreover, he did not concede that if the condition was present, that it adversely impacted upon the mother’s ability to parent the child.
The father sought to present evidence from a psychiatrist, Dr C, as to the mother’s assertion that she suffered from PTSD.
Dr C considered that he could only discharge his professional obligation if the mother attended upon him for a psychiatric assessment. The mother refused on the basis that she would not be able to attend her employment and that the proposed assessment may adversely impact on her anxiety. No evidence was presented to support the mother’s position.
Without her consent, I did not consider that there was power to require the mother to attend for a psychiatric assessment as a stand-alone exercise.
I found that the father should have been given an opportunity to challenge, contradict or place into context the evidence the mother sought to be adduced from Ms B. In circumstances where the father had taken all reasonable steps to obtain separate adversarial evidence which had effectively been thwarted by the mother’s refusal to attend for an assessment, her conduct rendered the evidence of Ms B as “prejudicial rather than probative”. The father seeks costs thrown away from the mother’s unsuccessful opposition to the father’s objection to the evidence of Ms B being led at trial.
THE TRIAL
The father seeks his costs of the proceedings on the following grounds:-
(1)That the reliance by the mother on allegations of domestic violence were not established;
(2)That the mother gave false evidence in respect of an alleged history of domestic violence by the father towards previous partners;
(3)That the mother misrepresented that the father had a history of family violence without foundation;
(4)That the mother represented to the family consultant that the father had conducted himself in a dangerous and abusive manner;
(5)That the mother made false allegations of family violence to the father’s previous partner with the intention that she reconsider the time that he should spend with a child;
(6)That “once the mother’s mendacious behaviour was discovered” it was unreasonable for either the mother or her solicitors to consider her application before the Court was likely to be successful;
(7)That “the mother was wholly unsuccessful upon the central issue in the proceedings, namely a parenting order allowing her to relocate to the United Kingdom.”
INDEMNITY COSTS
The explanatory guide to the Rules has been accepted by the Court as an accurate definition of “indemnity basis”; namely:-
An entitlement to costs, including costs under a costs agreement, for all costs incurred, other than costs that are unreasonable in amount or that have been incurred unreasonably.
The discussion of the Full Court in Prantage & Prantage (2013) FLC 93-544 is of assistance in determining whether and in what circumstances an order for indemnity costs should be made. The Full Court referred extensively to the decision of Kohan & Kohan (1993) FLC 92-340 in which it was noted, that whilst there was nothing in the Act which in any way “inhibits” a consideration of indemnity costs, the following is said in Kohan at 79,605:-
it is fundamental to the exercise of the discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties. This impact is a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under s 117(2A)(a), or perhaps even more as a relevant matter under paragraph (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.
In Re Wilcox; Ex parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151, Cooper and Merkel JJ said at 156:-
The issue whether costs should be ordered on a party and party basis or on an indemnity basis has acquired increasingly greater significance as the gap between the two bases appears to have grown.
The gap has highlighted the conflict between two seemingly irreconcilable objectives. The first is 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. The second is relieving a successful litigant from the burden of costs which that litigant should not have been required to incur. These and other policy factors have been considered by the courts over a very long period in order to arrive at the principles which govern the undoubted discretion of courts to depart from ordering costs on a party and party basis and ordering costs on an indemnity basis. The principles were stated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
In Prantage (supra) the Full Court said at 87,209:-
97. 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.
98. With respect to the trial Judge, we are not convinced that there is a great deal of difference between current “commercial realities” and those prevailing at the time Kohan was decided. It should be noted that the costs agreement in Kohan provided for a rate of payment three times in excess of the scale. However, even if there have been changes in the market place for legal services, we are not persuaded this should have any impact on the application of the “usual rule”, which seeks to balance competing public policy considerations.
THE FATHER’S COSTS
By reference to [6] of the father’s Affidavit filed 4 December 2019, he has incurred solicitor’s legal fees in the sum of $33,000 and counsel fees in the sum of $39,800.
Given the reference to the costs agreement retainer, I consider that the costs have been calculated on a solicitor/client basis.
Queen’s Counsel for the father was not able to present a schedule of the costs payable by the father, if calculated on a party/party basis pursuant to Schedule 3 of the Rules.
No attempt was made to separate the costs incurred by the father in relation to the evidence of Ms B as distinct from the trial.
It was not made clear whether the father’s position was that the mother should pay the father’s total costs or some part thereof.
The Court was not assisted by the paucity of evidence in support of the father’s application and accordingly I propose to do the best that I can.
The parties have been in litigation since 2016. Subject to the resolution of the father’s outstanding costs application, the litigation is at an end.
It is the expressed intention of the Court that, if possible, I be placed in the position of being able to assess quantum if a successful application for costs is made out.
The Court would wish to avoid placing the parties in the invidious position of a further round of unnecessary litigation in respect of an assessment or taxation of costs.
The father has not assisted in that proposed approach.
SHOULD AN ORDER BE MADE ARISING OUT OF THE TRIAL?
The financial circumstances of the parties
For his part, the father has paid his legal costs personally.[3] He is currently self-employed, although it is not significantly in dispute that his income is modest.
[3] Affidavit of the father filed 4 December 2019 at [7].
The mother holds significant qualifications under the rubric of business management and of recent date has had fulltime employment. I am uncertain as to the mother’s current employment status but I consider that her financial circumstances are modest at best.
This is not a case where there is a great disparity in the financial circumstances of the parties, although it is likely that the father’s circumstances are superior to the mother.
As considered, the father has paid his legal fees. I am uncertain as to the current status of the mother’s legal fees but as at 13 January 2020 her fees were $16,179.
I am cognisant that impecuniosity will not in and of itself be a barrier to an order for costs being made.
In circumstances where I am not able to properly consider the effect on each of the parties’ financial circumstances if a costs order were made, I give little weight to this factor.
Receipt of Legal Aid
I do not consider that this is a relevant matter in the proceedings.
Conduct of the parties
The father contends that an order for costs should be made arising out of the mother’s conduct being “mendacious”.
No argument is raised as to the mother’s conduct in respect of the manner in which the proceedings were procedurally conducted. It is to be noted, that the Court was critical of both parties in terms of their preparedness to comply with trial direction orders.
The gravamen of the father’s application is that he asserts that the mother gave misleading or false evidence.
There is historical precedent for an order of costs being made such that a Court could highlight its concern consequent upon a finding that a party has given false or misleading evidence.
From 7 June 2012 s 117AB of the Family Law Act 1975 (Cth) (“the Act”) was removed.
The consideration is whether costs arising from false or misleading evidence have the potential to be reflected in whether an order is made for indemnity costs, or whether it could be considered under s 117(2A)(g) namely, other matters that are relevant.
Lindenmeyer J in Telfer & Telfer (1996) FLC 92-688 considered at 83,139 that s 117(2A)(g) is “perhaps the all-encompassing paragraph” and by necessary implication an “independent source or discretion”.
Failure to comply with the previous orders
I do not consider that there are any aspects that are relevant to this consideration.
Whether a party has been wholly unsuccessful
The gravamen of the father’s application for the costs of the trial to be paid by the mother, arises because he considers that the issue of relocation was the only substantive issue before the Court.
It is his contention, that because the mother failed in her application to relocate the residence of the child to the United Kingdom, the Court is entitled to find that the mother was “wholly unsuccessful”.
If that is indeed the father’s contention then it is misguided.
It is not a proper assessment of the proceedings that the only issue was relocation.
It is well understood that the task of the Court in determining a parenting dispute is to consider the separate proposals of the parties. It is obvious that the mother’s application seeking the relocation of the child was a significant factor, but it could not be said that it was the only factor.
There were live parenting issues between the parties. At one point, the father may well have been prepared to consider orders that the child remain in the primary care of the mother and that the child spend time with him.
As the proceedings progressed, the father’s position changed and at trial he sought an order for primary care of the child.
Upon the delivery of reasons, orders were made that the child remain in the primary care of the mother and spend significant and substantial time with the father, comprising each alternate weekend from Thursday to the following Tuesday and half school holidays.
It cannot be said that the mother was wholly unsuccessful.
Offers to settle
There are no circumstances relevant to this consideration.
Other matters relevant
As discussed, I do not consider that issues relating to the adverse conduct of the mother, in that it is alleged she gave false and misleading evidence, is a matter that should be considered under s 117(2A)(c).
Given s 117(2A)(g), it is a difference without a distinction.
Section 40 of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) repeals s 117AB of the Act. Section 117AB required the “Court to make a mandatory cost order against a party to the proceedings, for some or all of the costs”[4] if the Court was satisfied that a party knowingly made false allegations or gave misleading evidence.[5]
[4] Replacement Explanatory Memorandum to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth) [86].
[5] Ibid.
In considering that the repeal of s 117AB was necessary because its operation may have resulted in a disincentive to a party disclosing family violence,[6] the following explanation is given:-
Section 117 of the Act allows family courts to make cost orders in response to false statements in appropriate cases. This power was affirmed in Claringbold & James (Costs) [2008] FamCA 57.[7]
[6] Ibid [87].
[7] Ibid.
The ability to make a costs order where the Court is satisfied that a party has knowingly made false statements or given false evidence is not controversial, but it should not be considered as a penalty or punishment. As to whether a costs order is justified must be reflected in the manner in which the case was conducted. If proceedings have been elongated and it can be established that significant Court time was expended on exploring and ultimately disposing of false evidence or misleading statements there would then be a basis for a costs order to be made.
I note my findings that the mother “was not an impressive witness”[8] and that I found her evidence to be “generally unreliable”.[9]
[8]Radley & Simson (n 1) [74].
[9] Ibid.
I was not able to make a finding, on the balance of probabilities, that any of the allegations made in respect of the father’s purported family violence were substantiated.
I was not persuaded that the father had perpetrated family violence either directly to the mother or in particular to the child.
I am also able to reflect upon the mischievous and false allegations made by the mother to the family consultant. Those findings were given weight in my determination that the mother would not be supportive of the child’s relationship with the father if relocation was permitted.
The difficulty that I have, is that I am not assisted as to the direct impact on the proceedings by the mother’s adverse conduct.
I did not find that the mother had fabricated or concocted a reason to seek an order that includes the child relocating. Ultimately, I found that the mother’s proposal was not in the best interests of the child, primarily because the father may not be able to reliably maintain a meaningful relationship.
In the absence of any assistance as to the costs implications for the father arising from the mother’s adverse conduct, I cannot divine any process or methodology by which a costs order could be considered or quantified.
I propose to make no order against the mother in respect of the father’s costs of trial.
The evidence of the psychologist
The mother sought to rely upon the evidence of the psychologist to establish that she had a current diagnosis of PTSD, but that if allowed to relocate, the cessation of litigation and the diminution of anxiety that was likely to result by the geographical separation of the parties, would assist in reducing the mother’s symptoms, ameliorating her diagnosis and enabling her to better parent the child.
The issue was not whether the evidence of the mother’s psychologist should be admitted but whether the mother’s refusal to engage in an assessment with the father’s expert psychiatrist was likely to render the evidence of Ms B prejudicial rather than probative.
I did not consider that there was any proper basis to the mother refusing to engage in the psychiatric assessment proposed by the father.
In circumstances where the evidence to be led by the mother could not reasonably be challenged by the father, the mother’s refusal should properly be considered as conduct relevant to s 117(2A)(c). In any event, the question of the father’s costs was reserved to the final hearing.
I am satisfied that it is proper to make an order for costs in favour of the father, but again little assistance is provided as to the costs incurred in relation to the mother’s unsuccessful application to rely upon the evidence of the psychologist.
It is however of limited compass, and I consider it is reasonable to have reference to the itemised scale of costs in Sch 3 of the Rules to assist in a determination of quantum.
The issue is not such that I consider indemnity costs should apply. Nor is it the case that the matter should be certified as fit for senior counsel.
The period during which costs should be considered, should be as and from 28 February 2019, when the father’s solicitor filed an affidavit in relation to the affidavit of Ms B and commenced inquiries to obtain his own expert opinion.
Doing the best I can, I assess quantum on the following basis:-
Time reasonably spent by a lawyer (on work) (Item 108) at $251.50
$1,006
Drafting and producing a document (application and affidavits) Items 101 and 102)
$1,000
Attendance of less than three hours for a hearing on two occasions at $1,210
$2,420
TOTAL
$4,426
I propose to order that the mother pay the father’s costs in the sum of $4,426.
I am aware of the agreement reached between the parties in respect of settlement of property. I consider that it is reasonable to give the mother 120 days to pay the outstanding sum.
COSTS OF THE CURRENT APPLICATION
The father seeks the costs of the current costs application. The mother has not been wholly unsuccessful in resisting the father’s application. On that basis it is not appropriate that there be any further costs order made in favour of either party.
CONCLUSION
I make orders as appear at the commencement of these reasons
I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 3 April 2020.
Associate:
Date: 3 April 2020
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