Spalding & Barbaro
[2022] FedCFamC1F 167
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Spalding & Barbaro [2022] FedCFamC1F 167
File number(s): BRC 6176 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 18 March 2022 Catchwords: FAMILY LAW – COSTS – Between parties – Where interim orders were sought by the father seeking for the children to relocate to the United States of America and to cease contact with the mother for 12 months – Where interim orders were made varying final orders as sought by mother –Where the respondent mother seeks costs on an indemnity or party-party basis due to the applicant father’s conduct in the proceedings and being wholly unsuccessful – Indemnity costs not justified – Order for costs on a party-party basis in accordance with the scale in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Legislation: Family Law Act 1975 (Cth) s 117 Cases cited:
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
Hawkins & Roe (2012) 47 Fam LR 526; [2012] FamCAFC 77
I and I (No. 2) (1995) FLC 92-625
Lenova & Lenova (Costs) [2011] FamCAFC 141
Mallory & Mallory [2020] FamCAFC 62
Malloy & Stopford Malloy [2021] FamCAFC 23
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Sindel & Milton [2010] FamCA 243
Spalding & Barbaro[2021] FedCFamC1F 91
Warbrick and Warbrick (No. 2) [2021] FamCAFC 101
Wrensted & Eades (2016) FLC 93-697; [2016] FamCAFC 46
Division: Division 1 First Instance Number of paragraphs: 32 Date of last submissions: 20 October 2021 Date of hearing: On the papers Place: Sydney Solicitor for the Applicant: Mills Oakley Solicitor for the Respondent: Simonidis Steel Lawyers ORDERS
BRC 6176 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SPALDING
Applicant
AND: MS BARBARO
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.The Applicant Father pay the Mother’s costs of, and incidental to, the Father’s Application and Amended Application on a party-party basis in accordance with the scale prescribed by the Federal Circuit and Family Court of Australia (Family Rules) Rules 2021 (Cth) within fourteen (14) days of agreement or assessment of the quantum of those costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Spalding & Barbaro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
On 30 September 2021 I delivered judgment, Spalding & Barbaro [2021] FedCFamC1F 91 wherein I dismissed orders which constituted the substantive basis of the applicant father’s application for interim parenting orders. This matter relates to an application by the respondent mother for costs of and incidental to those proceedings.
BACKGROUND
The background to the issues that gave rise to the dispute between the parties is set out in [4]-[12] of my decision dated 30 September 2021. By way of summary, the parties have been in dispute regarding parenting arrangements since their separation in 2011. Unfortunately, the level of disputation between the parties is such that it has adversely impacted upon the emotional well-being of the parties’ children.
APPLICATION
The mother filed submissions on 13 October 2021 seeking an order for costs on one of two alternative bases. Paragraphs six and seven of the document titled “Respondent’s Written Submissions regarding Costs” outlined the precise orders sought by the mother:
6. The Applicant Father pay the Mother’s costs of, and incidental to, the Father’s Application and Amended Application on an indemnity basis within fourteen (14) days of agreement or assessment of the quantum of those costs.
7. In the alternative, the Applicant Father pay the Mother’s costs of, and incidental to, the Father’s Application and Amended Application on a party-party basis in accordance with the scale prescribed by the Federal Circuit and Family Court of Australia (Family Rules) Rules 2004 [sic] (Cth) within fourteen (14) days of agreement or assessment of the quantum of those costs.
EVIDENCE
The respondent mother, being the applicant for the order for costs relied upon the following documentation:
(1)Costs Agreement between the Respondent Mother and Mills Oakley dated 26 May 2021 attached and marked with the letter “A”;
(2)Correspondence from Law Firm AK to Simonidis Steel Lawyers dated 23 June 2021 and marked with the letter “B”;
(3)Initiating Application (Family Law) filed 13 May 2021 (Application), pages 3 to 4 (Interim Orders 1 – 12);
(4)Amended Initiating Application (Family Law) filed 26 July 2021 (Amended Application), pages 3 to 4 (Interim Orders 1 – 10); and
(5)Amended Response to Initiating Application filed 9 August 2021, pages 4 to 6 (Interim Orders 1 – 3, 5 – 6, 8 – 9).
The applicant father, being the respondent to the application for costs relied upon the following documentation;
(1)Initiating Application (Family Law) filed 13 May 2021 (Initiating Application), pages 6-7 (3 to 4 of the document);
(2)Amended Initiating Application (Family Law) filed 26 July 2021 (Amended Application), pages 3-4;
(3)Response to Initiating Application and Affidavit of Ms Barbaro filed 18 June 2021 (page 1, showing timestamp) (Response and Affidavit);
(4)Case Outline of the Respondent Mother filed 21 June 2021 (page 1, showing timestamp);
(5)Case Outline of the Respondent Mother filed 17 August 2021, pages 1-2;
(6)Affidavit of Mr Constantine Simonidis filed 20 October 2021;
(7)Affidavit of Mr Spalding field 25 July 2021 as referenced’
(8)Order made by Justice Carew 23 May 2018.
THE LAW – CONCEPTS AND PRINCIPLES
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) sets out the basis upon which the Court is empowered to award costs. That section relevantly provides:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)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.
There is some controversy as to whether a different standard applies in considering the issue of costs in respect to property proceedings on the one hand and parenting proceedings on the other.
In Hawkins & Roe (2012) 47 Fam LR 526, the majority (May and Ainslie-Wallace JJ) said at [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.
However, in Wrensted & Eades (2016) FLC 93-697 (“Wrensted & Eades”), the Full Court (Bryant CJ, Finn and Strickland JJ) expressed some concern with that analysis if it was to be construed as establishing extra-legislative guidelines or criteria for the making of a costs order in parenting cases. In that respect the Full Court said at [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 (Nguyen v Nguyen 169 CLR 245 at 268-270; Gett & Tabet (2009) ALR 504 at [261]-[301] especially at [294]; Green v The Queen;Quinn v The Queen (2011) 244 CLR 462 per Heydon J at [84] and [85]; F Firm & Ruane and Ors (2014) FLC 93-611) at [163])
I respectfully agree with the reasoning of the Full Court in Wrensted & Eades in finding that there is no distinction in the legislative considerations that the Court is required to have regard to, pursuant to s 117, in respect to an application for costs in parenting proceedings, as opposed to property proceedings.
Those provisions make it clear that the general rule in family law proceedings, other than those excluded from the operation of s 117(1) of the Act, is that each party bears his or her own costs. The Court, however, may order a party to pay the costs of another where there are circumstances justifying the making of such an order.
The considerations set out in s 117(2A) of the Act must be taken into account in deciding whether or not to order a party to pay the costs of another. The Full Court has held, in I and I (No. 2) (1995) FLC 92-625 at 82,277, that the relevant matters in s 117(2A) of the Act “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”.
No one factor under s 117(2A) prevails over any other factor. It is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion: Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24] per Strickland J.
As such, a litigant seeking a costs order must establish that the justice of the case requires an order for costs, by reference to the non-exhaustive list of statutory considerations set out in s 117(2A) of the Act, before such an order is made. Although the applicant for costs must establish circumstances which would justify such an order, it is not the case that a costs order can only be made in what has been described as “a clear case”: see Penfold v Penfold (1980) 144 CLR 311 at 315.
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123, the Full Court confirmed that it was not necessary for each of the factors listed in s 117(2A) to be met in order for the Court to make a costs order. Accordingly, as further stated by the Full Court per Kay, Warnick and Boland JJ at [41], there is "nothing to prevent any factor being the sole foundation for an order for costs" being made (see also Sindel & Milton [2010] FamCA 243).
CONSIDERATION
The respondent wife has sought costs in respect to the totality of the proceedings associated with the applicant father’s application in a case filed on 13 May 2021.
The arguments advanced by the parties related to two distinct periods. The first period is in respect to the time from the filing of the father’s initiating application filed on 13 May 2021 until the point in time that the father filed an Amended Initiating Application on 26 July 2021. Specifically, it was contended by the mother that the father had unreasonably included in his initiating application prayer seven which, as originally drafted, had sought an order as follows:
That the Father be at liberty to relocate to the United States Of America with the children for a period of twelve (12) months to allow the child, [D] to undergo medical treatment and care.
The mother contended that the father’s inclusion of that aspect of his claim was unreasonable in circumstances where he was unable to leave Australia during the relevant twelve month period as a result of restrictions imposed upon him through a departure prohibition order as a result of an outstanding child support debt. Comparatively, the father contends that he acted in good faith in attempting to resolve that issue and, after an exchange of relevant correspondence he abandoned that aspect of his claim.
For reasons which I set out below, it is unnecessary for me to resolve that aspect of the controversy between the parties. This is because I have decided that the substantive interim relief sought by the father in his original initiating application had no reasonable prospects of success. The substantive interim relief sought by the father in that original initiating application was as set out in paragraphs 4, 5 and 6 of his proposed interim orders as follows:
(4)That the Children, [D] (born […] 2008), [E] (born […] 2009), [B] (born […] 2021) and [C] (born […] 2012) ('the children') live with the Father.
(5)That the Father have sole parental responsibility for all decisions for the children.
(6)That there be a moratorium on the children spending time with and communicating with the Respondent Mother for a period of twelve (12) months and thereafter time between the Respondent Mother and the children be supervised at the Supervised Contact Centre AM in Region H each alternate weekend for such periods of time that the Contact Centre can accommodate with the cost to be born equally by the parties.
That determination enlivens the consideration set out in s 117(2A)(c) of the Act regarding the conduct of the parties to the proceedings. The father, if acting reasonably, and properly advised would not have sought a change in residence orders for any of the children and, in particular D, who had been living exclusively with his mother for several months prior to the commencement of proceedings. This was in circumstances where the parties acknowledged that D suffers significant mental health challenges and which has resulted in several unsuccessful suicide attempts.
As noted at [85] of my judgment,
The father’s Application was doomed to fail, because he has failed to address the question as to how orders, requiring a change of residence, could be implemented without causing [D] even greater psychological harm. This is in circumstances where the father has given no thought as to therapeutic intervention, which would be required to assist [D] to transition to the arrangement which he proposes.
Further, there was no reasonable basis for seeking what counsel for the father acknowledged were orders of an “exceptionally extreme” nature for the other three children to live exclusively with the father and have no contact or communication with the mother for a period of 12 months.
In respect to the parties’ son E, at [177] and [181] of my judgment I set out why I considered there had been significant overreach by the father in seeking such extreme orders wholly based on a report by Dr GG dated 13 March 2020. The report was prepared in excess of 12 months prior to the father commencing proceedings and which I found formed the basis of an unjustified extrapolation in a submission that E was in a “worse position” than his brother in terms of risk of self-harm. In that respect at[180]-[181] of my judgment I referred to the context in which Dr GG observed E expressing concern that his mother and his maternal grandmother had prioritises their attention to his sisters during the course of weekends and that they had unfairly disciplined him:
It is however an unjustified extrapolation of those passages of [Dr GG’s] report to take them beyond a boy, who is 13 years old, complaining that he had received inadequate attention from his mother and grandmother, and that he had been unjustly disciplined, to a genuine desire by that child to live permanently with the father (see Transcript 20 August 2021, p.62 lines 22 – 44). This is particularly so, in circumstances where the father is proposing, in the orders that he is seeking, that the children have no contact and no communication with their mother, for an indefinite period of time.
With the greatest respect, it is, in my observation, precisely that sort of overreach on the part of the parties’ legal advisers which has, itself, contributed to the ongoing disputation between them. Specifically, in that context, it was contended that [Dr GG’s] Report, which I have placed in context, establishes that “[E] is in a worse position [than [D]] because we’re now seeing [in [Dr GG’s] Report] that [E] is telling his psychiatrist, ‘I want to go to heaven. I want to live primarily with dad’” (Transcript 20 August 2021, p.65 line 45 to p.66 line 2). There is, with respect, no reasonable basis upon which it can be contended that [E’s] emotional health and psychological wellbeing is potentially worse than that of his brother, on the basis of the evidence presented in these proceedings and, specifically, by failing to recognise the context in which [C] made his statements to [Dr GG] .
(Citations omitted)
Further, at [185] of my decision I noted that no evidence had been presented by the father to the effect that either of the parties daughters were at risk in the mother’s care such that it is justified the “exceptionally extreme” order sought by the father.
Section 117(2A)(e) provides a further additional consideration in determining whether there should be an order for costs in favour of the mother. Namely, whether the father was wholly unsuccessful in the proceedings. The outcome of the proceedings was, in my view, appropriately summarised in the written submissions submitted by the mother in seeking an order for costs, as follows:
·19.1 The Father failed in having the children primarily placed in his care and there being a moratorium on the children’s relationship with the Mother;
·19.2 The Father failed to retain his sole parental responsibility in relation to major long term issues relating to the health and education of D; and
·19.3 The Father failed to achieve sole parental responsibility for all decisions for all of the children.
·20. Conversely, the Mother was wholly successful in the orders sought on an interim basis, including that:
·20.1 The Mother have parental responsibility for major long-term issues relating to health and education for D;
·20.2 D live with the Mother and spend time with the Father as agreed between the parties in writing; and
·20.3 The Mother be at liberty to provide a copy of the orders to D’sD treating medical practitioners and school/s.
Accordingly, both considerations set out in s 117(2A)(c) and (e) favour an award of costs being made in favour of the mother in respect to these interim proceedings. Those considerations are not, in my view, offset when balanced against the other considerations set out in s 117(2A) as set out under the subheading “other relevant matters” in the father’s written submissions on costs filed on 20 October 2021.
Specifically, I determined that:
·No conduct on the part of the mother or for that matter, the Independent Children’s Lawyer (“ICL”), including the orders that they sought in the proceedings, mitigates against an award of costs being made in favour the mother.
·While I accept that the father is concerned about the welfare of the children, I have determined that there was no reasonable basis the father seeking what his own counsel acknowledged were “exceptionally extreme” orders which would have resulted in the children not seeing their mother for a period of 12 months nor having any communication with her.
In deciding to award costs in favour of the mother I acknowledge that there is little information before the court regarding the s 117(2A)(a) consideration concerning the financial circumstances of the parties. However, I note that both parties have, in the past, and, in the course of these proceedings demonstrated that they have sufficient financial resources to engage legal advice and have done so. In any event in Malloy & Stopford Malloy [2021] FamCAFC 23, the Full Court at [14], citing Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Mallory & Mallory [2020] FamCAFC 62 at [9], noted that "impecuniosity is not a bar to a costs order": see also Cross & Beaumont (2008) 39 Fam LR 389 at [60].
For these reasons I determined that an order for costs should be made in favour of the mother. The question becomes the amount of costs that should be so awarded.
In that respect the first alternative costs order sought by the mother seeks costs being awarded on an indemnity basis. In family law proceedings an award of costs requires the case to fall into an “exceptional category in which an order for indemnity costs would be appropriate” (Warbrick and Warbrick (No. 2) [2021] FamCAFC 101 at [11] - [12] and the cases there referred to. (“Warbrick”))
I accept that a party’s conduct in unreasonably commencing proceedings can justify an award of indemnity costs. However, having regard to the context of these proceedings, I am not satisfied that this matter falls within the exceptional category referred to in Warbrick. Most relevantly, I note that both the mother and the ICL also sought orders varying the previous parenting orders made by Carew J on 23 May 2018. In other words, the proceedings required the consideration of matters other than simply whether the father’s application should be dismissed. This included what eventuated to be a consent position where all parties agreed to the appointment of a single expert to prepare a family report.
CONCLUSION
Accordingly, for all these reasons, I make orders in terms of the second alternative formulation of orders as sought in the respondent mother’s written submissions regarding costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 18 March 2022
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