SONG and SONG

[2022] FCWA 217

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: SONG and SONG [2022] FCWA 217

CORAM: DUNCANSON J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 20 OCTOBER 2022

PUBLISHED : 20 OCTOBER 2022

FILE NO/S: [Redacted]

BETWEEN: MR SONG

Applicant

AND

MRS SONG

Respondent

Catchwords:

COSTS - parenting proceedings - circumstances do not justify an order as to costs - applications dismissed

Legislation:

Family Law Act 1975 (Cth) s 117(1), s 117(2), s 117(2A)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms M
Respondent	:	Ms L

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B

Case(s) referred to in decision(s):

Collins and Collins (1985) FLC 91-603.

Fitzgerald (As Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123.

Hawkins v Roe (2012) 47 Fam LR 526.

I and I (No 2) (1995) FLC 92-625.

Munday v Bowman (1997) FLC 92-784.

Wrensted & Eades (2016) FLC 93-697.

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Song and Song has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The mother, [Mrs Song] and the father, [Mr Song] seek orders for costs arising from proceedings between them in relation to their children.

BACKGROUND

2The proceedings between the parties concerned parenting orders with respect to their children, [Child A] born [in] April 2009, [Child B] born [in] July 2011 and [Child C] born [in] July 2014. The father was the applicant in the substantive proceedings, and the mother was the respondent.

3On 13 December 2021 I made numerous final financial and parenting orders by consent. The parties were able to agree all but two parenting issues, firstly as to parental responsibility and secondly as to the children's attendance at school.

4On 8 February 2022 I published my reasons. I ordered that the parties have equal shared parental responsibility for the children, except in relation to decisions about their health and education in respect of which the mother have sole parental responsibility. I further ordered that both parties ensure the children's attendance at school save and except in circumstances where the children or any of them are unwell. The proceedings were dismissed.

The mother's application

5On 8 March 2022 the mother attempted to file an application in a case and affidavit in which she sought an order for costs. The application was not accepted for filing in the absence of a certificate of conferral.

6On 7 June 2022 the mother filed a further application and affidavit with a certificate of conferral. That application was accepted for filing and listed to 17 June 2022.

7On that date I ordered:

•the mother file written submissions as to costs within 28 days;

•within 56 days the father file and serve a form 2A response and affidavit (if so advised) and submissions as to costs; and

•within 14 days of service of the responding documents, the mother have permission to file any responding submissions in reply to any new matter raised.

8On 20 July 2022 the mother's solicitors wrote to the father's solicitors and advised that due to illness of a staff member they had been unable to comply with the order to file submissions by 15 July 2022 and requested the father's consent to an extension of time for the mother to file submissions. By letter dated 26 July 2022, the father's solicitors wrote to the Court stating that the father did not agree to the extension of time and they requested I consider dismissing the mother's application in Chambers.

9The mother's solicitors responded by letter to the Court dated 26 July 2022 pointing out that the mother's application in a case could not be dismissed, the only question was whether I would grant leave to rely on the submissions once they were filed that day. They advised they did not object to an extension of time being granted to the father to comply with the orders for filing his responding documents.

10On 24 August 2022 the father filed a response to an application in a case, an affidavit of himself and an outline of submissions.

11On 8 September 2022 the mother filed an affidavit in response.

12I have considered the mother's request for an extension of time by a further seven days in which to file her submissions. In my discretion and having regard to the main purpose of the rules, I grant permission to the mother to rely on those submissions.

13The father's responding documents are accepted with a similar delay as that of the mother.

THE ORDERS SOUGHT

14In the mother's application in a case lodged 7 June 2022, she sought the orders as follows:

1The husband contribute to the wife's costs and incidental to the final hearing in these proceedings in the sum of $18,040, with such amount to be paid within 14 days of the making of this order.

2In the alternative to paragraph 1, the husband contribute to the wife's costs and incidental to the final hearing in these proceedings in an amount fixed by the Presiding Judge, with such amount to be paid within 14 days of the making of this order.

3…

(as per the original)

15In the mother's submissions, she sought payment of the sum of $18,040 within 14 days or, alternatively, with such amount to be deducted from the amount due to the father pursuant to 6(d) of the orders made on 13 December 2021.

16In the father's response filed 24 August 2022, he sought the orders as follows:

1The Form 2 Application filed 7 June 2022 be dismissed.

2The Mother pay the Father's costs of and incidental to responding the Form 2 Application fixed in the sum of $1,500.

(as per the original)

17The mother relied on:

•her submissions lodged 27 July 2022;

•her affidavit sworn 8 March 2022; and

•her affidavit sworn 7 September 2022.

18The father relied on:

•his outline of submissions lodged 24 August 2022; and

•his affidavit affirmed 24 August 2022.

THE LAW

19Section 117(1) of the Family Law Act 1975 (Cth) ("the Act") provides that, subject to s 117(2) each party to proceedings shall bear his or her own costs.

20Section 117(2) provides that if the court is of the opinion there are circumstances that justify doing so, the court may, subject to s 117(2A) make such order as to costs as it considers just. Section 117(2A) provides as follows:

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.

21The Full Court in Collins and Collins (1985) FLC 91-603 at 79,877 described the discretion conferred by s 117 of the Act as being a "broad" one and noted that the s 117(2A) factors are not to be read in a restrictive way. The Full Court said in I and I (No 2) (1995) FLC 92-625 at 82,277, the relevant matters in s 117(2A) "must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs." The Full Court in Fitzgerald (As Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123 also made clear that any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs.

22In Hawkins v Roe(2012) 47 Fam LR 526, the Full Court, dealing with an application for costs in a parenting case, stated:

[13]In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

[14]In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

23The majority went on to state:

[147]While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

24The Full Court in Wrensted & Eades(2016) FLC 93-697 held that the analysis of costs in parenting proceedings provided in Hawkinsv Roe should not be seen as differentiating between the requirements for a costs order to be made in property and parenting matters.

25The majority said at 81,153:

103. ... However if the majority in Hawkins & Rowe, by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion…

(citations omitted)

26It is necessary for me to take into account all of the relevant matters in s 117(2A) and balance them to determine whether the overall circumstances justify making an order as to costs.

27The mother states the background to her costs application is that the father was wholly unsuccessful at trial. She further submits the father chose not to cross-examine the single expert witness, [Dr A] and ought to have known that the Court would place significant weight on his evidence.

28The father's position is that this is not an appropriate case for the Court to depart from the usual rule set out in s 117(1) of the Act.

THE SECTION 117(2A) FACTORS

the financial circumstances of the parties

29The mother submits that she has modest assets and superannuation entitlements. Pursuant to orders made by consent on 13 December 2021, the mother retained her own assets, the former matrimonial home and associated debt on the basis that she pay $75,000 to the father, $75,000 to the paternal grandfather and there be a superannuation splitting order in the father's favour of $75,000. The mother is refinancing the home loan to enable her to pay these amounts and her legal fees of $142,297. She submits that once she has done so she will be left with assets worth about $410,000 including superannuation entitlements of $60,000.

30The mother is currently earning $215,000 per annum inclusive of superannuation. She is employed on a 12-month contract. She submits the father has been reluctant to provide adequate financial support for the children.

31The mother submits the father's income earning capacity is higher than his current income and is not fully utilised. She asserts he retains assets with a total value of about $592,000, including superannuation and the cash payment to be made by her.

32The father deposes that after payment of sums due by the mother to him and the paternal grandfather, the amount owing to [Bank A], and taking into account her legal costs, she will retain an asset pool of an estimated $421,225. He deposes after settlement and taking into account sums owed by him to his father, his net assets are an estimated $137,000.

33The father's current income is $155,000 per annum including superannuation. He disagrees he has been reluctant to provide adequate financial support for the children and sets out the contributions he has made in that respect.

34The father deposes that he previously earned more as he was working FIFO, but with current care arrangements FIFO is not a viable option. He is renting a home owned by his parents.

35The father submits the mother has a higher income than him, he does not have a higher earning capacity, she retained greater assets, and he does not receive financial support from his parents.

36The mother disputes the father's assertions as to his financial circumstances, in particular with respect to the value of the former matrimonial home and amounts said to be owed to his father which she says should be disregarded.

37The mother maintains the father has not contributed to Child A's education costs notwithstanding he has accessed the [Scholarship Fund A] held for the children's benefit.

38Both parties are in a position to pay costs should costs be ordered.

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

39Neither party is in receipt of assistance by way of Legal Aid.

the conduct of the parties in relation to the proceedings

40The mother submits the father's conduct in refusing to agree to the orders sought by her relating in particular to the issue of parental responsibility resulted in her being put to the considerable expense of a two day trial. She submits the father should have known he had no chance of success in circumstances where he chose not to cross‑examine Dr A and where I properly accepted the unchallenged evidence of Dr A and placed weight on it. She submits the father conceded the parties do not talk. The mother further submits that in cases where a litigant has commenced or continued an action which they knew, or ought to have known had no reasonable chance of prospect of success, it must be presumed the action was commenced or continued for some ulterior motive or because of some wilful disregard of the known facts, relying on Munday v Bowman (1997) FLC 92-784.

41The father submits his refusal to accept the mother's proposed orders was because he did not and still does not consider them to be in best interests of the children. He had concerns that if the mother was granted sole parental responsibility he would be removed from these decisions and not properly consulted. He submits he was bona fide in his view that the orders he sought were in the best interests of the children, which is demonstrated by the mother's actions post the making of orders, which he says is to the detriment of the children.

42The father submits the mother has caused delay and further applications and costs to be incurred by him. He refers to the costs order made against her. The father refers to the mother's unsuccessful application to restrain his barrister from continuing to act. He refers to the mother's non-compliance with orders for payment of costs in that respect.

43The mother denies failing to comply with any orders in relation to Child A's treatment and does not agree she has caused delays. She asserts that she will comply with orders for payment of the costs order made.

44I take into account that the father considered an order for equal shared parental responsibility was in the best interests of the children. I noted it was to his credit that he agreed to an order that upon receipt of Dr G's recommendations, if the parties could not agree a course of medication, the mother could elect to follow those recommendations and he would comply.

45I further found that it was to the parties' credit that they reached agreement on many parenting issues, and the fact they could not reach agreement about decision making in respect of health and education suggested they had exhausted their negotiations.

46I do not consider that the conduct of either party as a litigant is a factor to found an order for costs.

whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

47The father maintains the orders sought by him were necessary given the mother's failure to involve him in equal shared parental responsibility decisions despite there being an interim order for the same and the mother's failure to comply with an agreed consent order for a medical certificate to be obtained. The mother denies failing to comply with orders in relation to Child A's treatment.

48I do not consider that the proceedings were necessitated by the failure of either party to comply with previous orders of the Court.

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

49The mother refers to the dispute between the parties in relation to parental responsibility and the issue in relation to the children's attendance at school. She submits the orders sought by the father in these respects were neither reasonable or practicable and submits that he knew or ought to have known the orders he sought had no reasonable prospects of success. The mother submits the father was "wholly unsuccessful" in the proceedings.

50The father acknowledges that "technically he may have been unsuccessful however there was no middle ground on the parties' competing positions". He maintains his evidence as to his bona fides that the orders he sought were in his view in the children's best interests.

51With respect to the issue of parental responsibility, I made the orders sought by the mother that the parties have equal shared parental responsibility for the children, and she have sole parental responsibility in relation to education and health matters. For reasons given I did not make the order sought by the father that the parties have equal shared parental responsibility for the children including as to education and health.

52In relation to the children's attendance at school, I was not persuaded it was in the best interests of the children to make the orders sought by the father that the children attend school save and except in circumstances where a doctor has certified they are unable to do so.

53Although ultimately I did not make the orders sought by the father and I made those sought those by the mother, it cannot be said that the father's position did not have merit. Although the mother deposed to communication problems between her and the father, the father deposed he had no difficulty continuing to communicate with the mother around matters concerning the children.

54I took into account Child A's learning and other difficulties. The issue of medication for Child A was one of considerable importance to both parties and I am satisfied that both parties sought orders which they considered to be in Child A's best interests.

55In relation to the children's attendance at school, again the father's position was not without merit. He was very concerned about the children's absenteeism, particularly Child A's, however I was not persuaded the requirement to obtain a doctor's certificate was either practical or necessary.

56In all the circumstances and having regard to the father's firm belief that the orders he sought were in the best interests of the children, I do not accept that he knew or ought to have known that he had no reasonable prospect of success.

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

57There were no relevant offers to settle the proceedings.

58Following judgment, the parties conferred as to costs, with the mother seeking a contribution to her costs of $10,000. The father did not accept the proposal. He invited the mother to withdraw her subsequent application for costs.

such other matters as the court considers relevant

59No other matters are considered relevant.

CONCLUSION AS TO THE APPLICATIONS FOR COSTS

60I have taken into account all of the matters referred to above and balanced them. I am not satisfied that there are circumstances which justify the making of an order for costs as sought by the mother.

61The father seeks an order for costs of and incidental to responding to the mother's application fixed in the sum of $1,500. The factors under s 117(2A) to which I am required to have regard have been set out above. The mother has been unsuccessful in her application for costs.

62The proceedings were of considerable importance to both parties. The difficult circumstances of this case included health matters in relation to the parties' eldest child and important issues in relation to the children's education.

63I am not persuaded that there are circumstances which justify a departure from the usual rule that each party to proceedings shall bear his or her own costs. In the exercise of the broad discretion which I have, the applications of both parties for costs will be dismissed.

ORDER

1The application of the mother [MRS SONG] filed 7 June 2022 and the response of the father [MR SONG] filed 24 August 2022 be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

20 OCTOBER 2022