Sinna and Goen

[2017] FamCA 209

FAMILY COURT OF AUSTRALIA

SINNA & GOEN [2017] FamCA 209

FAMILY LAW – COSTS – Application by respondent for costs at interim hearing – Application for costs as agreed or assessed – Where the applicant amended her parenting application on the day of interim hearing – Where the applicant did not press all orders sought in the amended application – Where orders made by consent were the same as orders sought by the respondent – Where the actions of the applicant rendered the hearing unnecessary – The applicant to pay the Respondent’s costs.  

Family Law Act 1975 (Cth) s 117

Penfold v Penfold (1980) 144 CLR 311
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

APPLICANT: Ms Sinna

RESPONDENT: Mr Goen

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

FILE NUMBER: PAC 5094 of 2016

DATE DELIVERED: 7 April 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 10 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Renwick

SOLICITOR FOR THE APPLICANT: Watts Mccray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Morely

Orders

1. The Applicant pay the costs of the Respondent in respect of the interim proceedings on 10 January 2017 as agreed or as assessed.

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 Sinna & Goen 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 PARRAMATTA

FILE NUMBER: PAC 5094  of 2016

Ms Sinna

Applicant

And

Mr Goen

Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment concerns an oral application for costs made on behalf of the Respondent Father (‘the father’) in respect of interim parenting proceedings.

2. The father seeks that the Applicant Mother (‘the mother’) pay his costs as agreed or assessed in respect of the interim hearing on 10 January 2017.  

3. The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs.

Background

1. The substantive proceedings concern the parenting arrangements for a three year old girl B (“the child”).

2. The father, who is 42, currently lives in State C in the United States of America and the mother, who is 41, has lived on the central coast of New South Wales in Australia with the child since September 2016.

3. The parties met online in 2008 and between 2008 and 2010 flew between Australia and the United States to visit one another for varying periods of time.

4. In 2010 the mother moved to the United States and the parties were married.  

5. In 2013 the child was born in State C.

6. The mother claims that she felt isolated in State C and became depressed. She also contends the father was controlling and did not assist in raising the child.

7. The father contends that the mother has mental health issues and raises concerns about her parenting capacity.

8. The parties separated on a final basis in August 2016. The parties are not yet divorced.

9. On 31 August 2016 Consent Orders were made by a Court in State C that can be summarised as follows:

   1)     The father have sole legal decision making for the child and make a good faith effort to discuss decisions with the mother.

   2)     The mother has all parenting time subject to reasonable parenting time for the father. Reasonable parenting time being a minimum of two weeks uninterrupted time at least once every three months.

   3)     The father be responsible for transportation costs for the child for the purposes of his time with the child.

   4)     The father pay $1,400 in child support and $600 in spousal maintenance to the mother each month.

   5)     The father, at his sole discretion, be entitled to retrieve the child and bring her to the United States.

   6)     If an Australian court or other entity determine that these orders are unenforceable the parties shall cooperate to implement the terms contained in this joint motion.

   7)     The parties shall register this consent order in Australia.

   8)     The mother be permitted to relocate to Australia with the child. 

10. On 12 September 2016 the mother left State C and flew to Australia with the child. The child had lived in State C until this time.  

11. On 30 September 2016 the father emailed the mother requesting the return of the child to State C. The mother confirmed that she and the child would return to State C by email dated 14 October 2016.

12. On 27 October 2016 the mother emailed the father indicating that she and the child would not be returning to State C.  

13. On 31 October 2016 the father commenced proceedings in State C seeking the return of the child to State C.  

14. Proceedings in the Family Court of Australia were commenced by the mother by way of Initiating Application filed 1 November 2016.  Final orders sought by her include that the parents have equal shared parental responsibility for child, that the child live with the mother and spend time with the father in Australia at times agreed between the parties.  The mother also sought that the child’s name be placed on the Family Law Watch List maintained by the Australian Federal Police and that restraints be placed on the parties removing the child from Australia.  She sought the same orders on an interim basis.

15. At some time in November 2016, though the exact date is unknown, the father filed an Application with the United States State Department for the return of the child pursuant to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).  

16. On 22 November 2016 orders were made in State C for the child to be returned to the father on 11 January 2017.

17. The father filed a Response to the mother’s Initiating Application on 6 December 2016.  On the same dated an Independent Children’s Lawyer (“ICL”) was appointed.  The father sought that the mother’s application for interim orders be dismissed or that in the alternative the parties’ do all acts and things necessary for the child to be returned to State C at the father’s cost and following her return that the child live with the father and spend time with the mother as agreed.  The father also sought that the mother pay his costs incidental to his interim application. 

18. On 15 December 2016 the matter was set down for hearing of the respective interim applications on 10 January 2017.  At that stage there was no indication that the Hague Convention application had been received by the Australian Central Authority. 

19. It appears that the Australian Central Authority accepted the proceedings under the Hague Convention on 20 December 2016 and the following day made application for a return order in the Sydney Registry of this Court. 

20. On 23 December 2016 Loughnan J made orders ex parte on the application of the Central Authority restraining the mother from removing the child from Australia, requesting that the child’s name be placed on the Airport Watch List and listing the return of the proceedings for hearing on 9 February 2017.

21. Although the Secretary of the Department of Family and Community Services (the Central Authority in NSW) informed the court of the application from the Australian Commonwealth Central Authority under the Hague Convention and suggested that the proceedings on 10 January 2017 be vacated, neither party to these proceedings made such an application. 

22. On 23 December 2016 the father filed an Amended Response seeking interim orders that the mother’s application for interim and final orders be dismissed and that the mother’s application be stayed permanently pending the determination of the parties’ proceedings in State C.  In the alternative to those orders, the father sought that the child’s name be removed from the Airport Watch List and that the mother deliver the child to Sydney Airport on 11 January, that the child live with the father and spend time with the mother as agreed.  The father also sought an order that the mother pay the father’s costs incidental to the application.

23. On 6 January 2017 the mother filed an Amended Initiating Application seeking interim orders pending the outcome of Hague Convention proceedings in the Sydney Registry.  Her proposal is in virtually identical terms to the previous interim orders sought, that the parents have equal shared parental responsibility for the child, that the child live with the mother and spend time as agreed with the father on the central coast of NSW, that the child be placed on the Airport Watch List and that the child’s Skype communication with the father continue.   

24. On 10 January 2017 the mother did not proceed with her application for interim orders and orders were made by consent for proceedings to be stayed pending the determination of the Application under the Hague Convention.  On that occasion the father did not attend personally but was legally represented.

25. Following consent orders being made the father made an oral application for the costs of the interim parenting proceedings as agreed or assessed to be paid by the mother.

Submissions

1. It was submitted on behalf of the father that the mother had maintained her parenting application until the morning of the interim hearing when it was ultimately withdrawn.  It was submitted that as the orders agreed to by the mother at the interim hearing were virtually identical to those proposed by the father in his Amended Response and his costs for the interim hearing were unnecessarily incurred.

2. The father further argued that there is no evidence as to the mother’s financial position and she is legally represented and able to pay costs.

3. It was submitted on behalf of the mother that the father did seek parenting orders in his Response to the mother’s Application and the mother believed she would be meeting that Response at this interim hearing.

4. It was further submitted on behalf of the mother that she only amended her position and consented to the stay of her application on the morning of the interim hearing when she first became aware that the father would not be present in Australia for the hearing.

5. It was submitted on behalf of the mother that the parties presence was required for the interim hearing regardless of the mother’s amendments to her Application and her actions had resulted in no additional costs for the father.

6. It was also submitted on behalf of the mother that she has no financial resources as she can no longer access the parties’ bank accounts and assets in State C.

7. In response it was argued that the father had sought parenting orders only in the alternative if the court were not minded to grant a stay of the proceedings and that the amended application for a stay of proceedings pressed by the mother at interim hearing were the orders primarily sought by the father in his Response.

8. The father also submitted that full financial information of the parties is not before the court but that would not prevent a costs order being made against the mother to be paid at the conclusion of proceedings.

The law & Discussion

1. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her costs.  That rule is subject to the discretion given to the court to make such orders as to costs if the court is of the opinion that there are circumstances that justify it in doing so.

2. The High Court in the matter of Penfold v Penfold[1] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [1] (1980) 144 CLR 311

3. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.  The matters relevant in this case are considered below. 

The financial position of each of the parties to the proceedings

1. Each of the parties is privately represented in these proceedings and the proceedings in State C.  It is submitted on behalf of the mother that she has no financial resources currently available to her.  The father submits that the mother’s current inability to access any joint funds in State C does not preclude an order for costs being made against her.

2. I have no evidence as to either of the parties’ financial circumstances before me and cannot make a finding as to the financial capacity of the mother to pay costs.   

The conduct of the parties to the proceedings in relation to the proceedings

1. The mother filed an Amended Initiating Application four days prior to the interim hearing, sought to amend that Application on the morning of the hearing and consented to a stay of the proceedings she had initiated and did not press other orders in her application.  It is contended on behalf the father that through these actions the mother required the father to incur costs for “unnecessary proceedings”.  The father had sought a stay of these proceedings in his Amended Response filed 23 December 2016.  

2. It was submitted on behalf of the mother that no adverse inference should be drawn against her about her conduct in circumstances where the father had sought parenting orders in his Amended Response and the mother was ready on the day of the interim hearing to meet that application.  However, I accept the submission on behalf of the father that he only sought parenting orders in his Amended Response as an alternative if the stay of proceedings was not granted by the court.

3. In those circumstances, the mother’s conduct in failing to agree to a stay of proceedings until the morning of interim hearing caused the parties to unnecessarily attend the interim hearing.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. This is a somewhat unusual situation where the mother finally proposed at the interim hearing after a number of changes in her position that the proceedings she had initiated be stayed pending determination of the Hague Convention proceedings.  She also did not press the other orders that she had sought.

2. As previously noted the orders that the parties agree to and were made were essentially those sought by the father in his Amended Response. 

3. In these circumstances while it cannot be said that the mother was “wholly unsuccessful in her application” it is a relevant matter to take into account under section 117 2A(g) that the mother did not press for the orders sought in her Application and consented to the father’s position that the proceedings initiated by her be stayed pending determination of the Hague Convention Application.

Conclusion

1. There is nothing to prevent any one factor being the sole determinant for an order for costs: see PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL[2].

   [2] (2005) 33 Fam LR 123.

2. In these circumstances I attach weight to the conduct of the mother in relation to the proceedings and in particular that she ultimately adopted the position advanced by the father that the proceedings be stayed.  There is no reason advanced why the parties could not have reached agreement in relation to this position and sought to vacate the interim hearing rather than incur costs unnecessarily.  In these circumstances when I am also not able to make a finding to support the mother’s contention that she does not have the financial capacity to pay the father’s costs, I am of the view that there are circumstances justifying an order that the mother pay the father’s costs in these interim proceedings.  Accordingly I make the order as set out at the forefront of these Reasons.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 April 2017.

Associate:

Date:  7 April 2017