So Chung and So

[2014] FamCA 276

FAMILY COURT OF AUSTRALIA

SO CHUNG & SO [2014] FamCA 276

FAMILY LAW – COSTS – Undefended hearing – Where the Mother is seeking an order that the Father pay her costs of the parenting proceedings on an indemnity basis – Where the Father commenced parenting proceedings and subsequently failed to participate in the proceedings since his solicitors filed a Notice of Ceasing to Act – Where the Father has failed to file a Notice of Address for Service as required by the Family Law Rules – Where the Mother has taken steps to serve the costs application on the Father – Father ordered to pay the Mother’s costs of and incidental to the parenting proceedings on an indemnity basis

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Kohan & Kohan (1993) FLC 92-340

APPLICANT: Ms So Chung

RESPONDENT: Mr So

FILE NUMBER: BRC 11658 of 2009

DATE DELIVERED: 30 April 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 30 April 2014

REPRESENTATION

FOR THE APPLICANT: In Person

FOR THE RESPONDENT: No Appearance

Orders

It is ordered that

1. The Father pay the Mother’s costs of and incidental to the Father’s application for final parenting orders, such costs to be agreed or failing agreement to be assessed on an indemnity basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym So Chung & So 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 BRISBANE

FILE NUMBER: BRC 11658 of 2009

Ms So Chung

Applicant

And

Mr So

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Chung (“the Mother”), was born in 1982 and is thus now 31 years of age.  She is employed as an health professional.  She is the mother of B (“the child”) born in 2004, who is thus now 10 years of age. Mr So (“the Father”) was born in 1974 and is thus now 39 years of age.

2. On the information before the Court, and available to the Mother, which for reasons which will shortly be described is limited so far as the Father is concerned, the best that it is known of the Father is that he has historically been self-employed as an engineer.  Both parents are originally from Country C.

3. The parties commenced their relationship in December 2002, married in 2003 and separated on a final basis in December 2009. The parties divorce was pronounced on 10 April 2011. As already noted, there is one child of their relationship, who is currently 10 years of age.

4. On or about 9 August 2012 it was the Father who commenced parenting proceedings by way of an Initiating Application filed in the Federal Circuit Court but later transferred to this Court. The Father participated in those proceedings, with the assistance of legal representatives, up until those legal representatives filed a Notice of Ceasing to Act on 4 February 2014.

5. The Father has not filed any material in the proceedings for a significant period of time. It is fair to say that by reference to the family report filed under cover of the affidavit of Mr D of 9 August 2013, that historically the parenting proceedings involved very significant allegations or issues concerning each parent.

6. In his application, it can be seen that the Father was pursuing a parenting order for the child to live primarily with him, and for him to have time with the Mother. Based upon the issues raised by the Father in the family report, his contention about the child living primarily with him and having more limited time with the Mother was based on serious allegations in various forms, including that the Mother had a propensity to be angry and strike the child or that she had historically abused the child, or that the Mother’s parenting capacity was affected by mental health issues. Overall, the Father was contending that there were significant deficiencies in the parenting ability of the Mother. He asserted that the child actually did not want to spend time with the Mother. Clearly enough, those were very serious issues in the context of the parenting application which he made.

7. Subsequent to the Father’s solicitors ceasing to act for him on 4 February 2014 no material has been filed by the Father. That means that he has also not filed any Notice of Address for Service as is required by the Family Law Rules 2004 (Cth) (“the Rules”). That is, the rules require that litigants before the court are obliged to keep the court and the other party or parties to the litigation informed of their address for service.

8. In the result, the Father’s application for parenting orders proceeded in the usual way under the case management processes of this Court to proceed to a final trial. As a result, the substantive parenting proceedings were listed for a final trial before his Honour Justice Bell on 26 February 2014. The Father failed to appear on that occasion and in the circumstances the matter proceeded on an undefended basis. On that occasion, his Honour made final parenting orders which provided for the child to live with the Mother and for the Mother to have sole parental responsibility. A notation appears on those orders that the Father was called three times on that occasion and failed to appear, thus the matter proceeded on an undefended basis.

9. It is an important matter of historical context that at least at the time of preparation by Mr D  of his family report annexed to Mr D ’s affidavit filed in August 2013, based upon interviews of the parties, the Father was asserting to the effect that he was not seeing the child, because of the actions of the Mother, pursuant to interim orders.

10. For her part, it is clear that the Mother was contending that she was making efforts to make the child available, and to attend changeovers for that purpose, pursuant to orders, but that the Father simply did not appear to have his time with the child. 

11. Viewed in retrospect, it would now seem that there is substance in the Mother’s complaints made as at the time of the family report, given that the Father has done nothing to pursue in any meaningful way his application in respect of parenting orders, and aside from his participation in the family report interviews the Father has not taken further formal steps with respect to his parenting application.  The reality of the case is that not since April 2011 has the Father taken any particularly active role with the child in terms of seeking, or communicating with, the child.

12. Following the making of the final parenting orders on 26 February 2014, the Mother brings this application, which is an application for costs. On the first return date of the application on 28 March 2014 the Father failed to appear. On that occasion, I adjourned the Mother’s case application to today for the purpose of steps being taken in the interim to bring the application to the attention of the Father. Consistent with that, the Mother has filed a further affidavit on 11 April 2014 setting out the various steps she has taken to bring this application to the Father’s attention.

13. Those steps include service of the application and material in support of it upon the Father’s former legal representatives in the hope that they might bring the proceedings to the attention of the Father. I would note in respect of those former solicitors, Dante Chen Lawyers, that on the occasion of one of the family report interviews the Father was actually accompanied by his solicitor who told Mr D he was a personal friend of the Father, and that the solicitor was attending the interviews in that capacity.

14. Apart from those solicitors, the Mother caused the relevant court documents to be forwarded by way of registered post to the last known address for the Father, which is in Western Australia. On the Mother’s affidavit, she subsequently received an unopened registered post envelope that had been sent to Western Australia and later learned that the address was not a residential address. 

15. Further, the Mother provided to the Child Support Agency correspondence and the relevant court documents in the hope that that agency might bring the documents to the attention of the Father.

16. The Mother forwarded the documents to the Child Support Agency on 27 March 2014, and in early April she received correspondence from the Australian Government Department of Human Services acknowledging service of the documents upon the Child Support Agency. On the evidence of the Mother the Child Support Agency continues to collect child support from the Father, albeit in the modest sum of $7 per week.

17. It is a fundamental principle of our system of justice as a matter of according natural justice and procedural fairness to a respondent to an application made to a court that the respondent have an opportunity to be heard with respect to the application. It is clear on the authorities that it is not necessary that the court actually hears from the respondent before making orders, but that the respondent has an opportunity to be heard with respect to the orders sought.

18. In the brief recounting of the history referred to, what is critical to note is that the subject parenting proceedings were instituted by the Father as the Applicant. He cannot have been in any doubt throughout the currency of those proceedings, including as briefly referred to his participation in the family report process, that the point would come when the proceedings would proceed to a trial.

19. It seems clear enough that the Father has elected not to pursue his application, nor to participate in the proceedings, and has not troubled the Court nor the Mother with advice as to his whereabouts.

20. As referred to in the course of an exchange with the Mother during the hearing, the Rules require a party to litigation in this Court to file and keep filing relevant Notices of Address for Service so that documents can be served on the parties to the proceeding. The relevant rule provides that the address for service of a party is the last known address provided by such a notice of address. The relevant rule is r 8.06. Dante Chen Lawyers is the last address for service of the Father. Chapter 7 of the Rules governs service.

21. In my judgment, the Mother, in all of the circumstances as described, has done all that she can reasonably be expected to do to bring to the notice of the Father the fact of the making of this costs application. In particular, I rely upon the feature that the Mother has served the relevant documents upon the Child Support Agency and has received an acknowledgment as earlier referred to from the agency of receipt of those documents. I tested with the Mother this morning the prospect of service of the material upon the Father’s parents. I accept what she tells me, that is, that she is unsure of the whereabouts of either of the parents of Mr So. This is in addition to the Mother sending the documents to the Father’s address for service and to his last known residential address.

22. In all the circumstances I am satisfied that the Father has had an opportunity to be heard in that he had the responsibility of keeping the Court and the Mother informed of his address for service. Any failure in his not receiving actual notice of this application is caused entirely by the Father.

23. As earlier noted, this is an application for costs of the parenting proceedings. I have briefly referred to the nature of the allegations that were mounted historically by the Father against the Mother in those parenting proceedings. They are serious allegations. More fundamentally, they are allegations going to the very heart of the Mother’s parenting relationship with her son.

24. In the result, the Father has not carried through with those assertions or allegations, in that he has failed to participate in the parenting proceedings and did not trouble the Court or the Mother with the information that he did not intend to pursue them. The Mother was placed in the position, having exhausted her financial capacity to have legal representation, had to appear for the conclusion of the proceedings on a self-represented basis. It is clear on the Mother’s material filed in support of this application that she incurred substantial legal expenses during the currency of the parenting proceedings. In accordance with the rules of court, the Mother has provided a copy of the costs agreement with her former lawyers relating to the costs she expended in being represented in the proceedings whilst she had lawyers.

25. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides for what may be termed the usual rule that each party to litigation in this Court bears their own costs of that litigation. However, subsection (1) of that section is subject to, inter alia, subsection (2). Subsection (2) provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and other subsections and the applicable rules of court, make such order as to costs as the court considers just. Subsection (2A) sets out the matters the court should have regard to in considering an order under s 117(2).

26. I am satisfied and am of the opinion that within the meaning of s 117(2) there are justifying circumstances in this case for an order for costs in favour of the Mother. In terms of what order is made, the consideration of the matters expressed in subsection (2A) is limited by the lack of material filed by the Father, both historically as to his financial circumstances and, given his failure to participate in the proceedings, currently. It is clear on the material the Mother has filed that her financial circumstances are extremely modest. Significantly, I note that amongst her relevant financial circumstances is the feature that the Father pays a miserly $7 a week for the support of a 10 year old child. His support has effectively been, is, and will in the future be, the Mother’s responsibility.

27. Within the meaning of subsection (c) of s 117(2A) it is clear that the Father’s conduct in relation to the proceedings is a relevant matter. As has already been noted, his conduct involves making or advancing very serious allegations against the Mother in the parenting proceedings and putting her to the expense of legal representation to defend herself in the context of those allegations, but then failing to pursue those allegations in any meaningful way after the Mother had expended, in effect, the costs she now seeks. The Father’s conduct includes the failures in the respects earlier identified to actively participate in the proceedings and a failure to inform the Mother or the Court of his intention not to pursue his application.

28. It is fair to say that within the meaning of the relevant subsection, the Father can be taken to be wholly unsuccessful in the proceedings and, as the Mother points out in her material, the final orders made by Justice Bell on an undefended basis were less favourable to the Father than the orders that the Mother had, in fact, earlier proposed be made on a final basis when the Father was participating in the proceedings.

29. I am therefore satisfied that a costs order ought be made in favour of the Mother. The question then is the basis upon which the order is to be made.

30. The usual order for costs as between parties to litigation is that the costs order is made on a party/party basis. Here, the Mother seeks that the order be made on an indemnity basis.

31. It is recognised in numerous authorities such as Kohan & Kohan[1] that to order costs on an indemnity basis represents a very great departure from the ordinary rule and there needs to be circumstances that justify the making of an order on that basis as compared to costs being ordered on a party and party basis. In my judgment, the circumstances I have earlier alluded to do justify such a departure in that I consider that the Father’s conduct places this case in the category where it can be said to be exceptional within the meaning of Kohan & Kohan and like authorities, such as to justify the order for costs the Mother seeks.

    [1] (1993) FLC 92-340.

32. Costs within the meaning of the definition in the Act are those costs paid to a legal representative. I have earlier referred to the feature that at a point in time the Mother was unable to continue to fund her legal representation and had to represent herself. Even a cost order on an indemnity basis does not provide any compensation to the Mother for the time and effort, not to mention the anguish, of having to defend herself in the proceedings once she could no longer afford lawyers. It is relevant to note that the Mother is a Country C national. English is not her first language. The difficulties confronted by any self-represented litigant in proceedings in a court are heightened by those features.

33. It also ought to be noted that whilst there were differences between the parties recorded in the family report as to the cause for the Mother needing to seek treatment for mental health issues, with the Mother squarely laying the blame for that at the feet of the Father, the fact is it was known that all material times by the Father that the Mother has historically had some mental health issues. In that context, the Father’s conduct earlier referred to has a particular perspective and emphasis in terms of concluding that exceptional circumstances exist to justify an order for costs being made on an indemnity basis.

34. For these reasons I make the following order that the Father pay the Mother’s costs of and incidental to the parenting proceedings commenced by the Father on 9 August 2012 on an indemnity basis.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 30 April 2014.

Associate:

Date: 1 May 2014