Spalding & Barbaro

Case [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…

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AGLC
Spalding & Barbaro [2022] FedCFamC1F 167
Case
[2022] FedCFamC1F 167
Decision Date

CaseChat Overview and Summary

Spalding and Barbaro involved a dispute between the parents of four children regarding parenting arrangements since their separation in 2011. The case resulted in the mother filing submissions on 13 October 2021 seeking an order for costs on one of two alternative bases. The first sought an order for the father to pay the mother's costs of and incidental to the father's application on an indemnity basis within fourteen days of agreement or assessment of the quantum of those costs. The second sought an order for the father to pay the mother's costs of and incidental to the father's 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 within fourteen days of agreement or assessment of the quantum of those costs. The legal issues before the court were whether the father's conduct in unreasonably commencing proceedings justified an award of indemnity costs and if the mother's application for costs was successful. The court held that while a party's conduct in unreasonably commencing proceedings can justify an award of indemnity costs, the matter did not fall within the exceptional category. The court accepted that both the mother and the Independent Children’s Lawyer also sought orders varying the previous parenting orders made by Carew J on 23 May 2018. The court concluded that the proceedings required the consideration of matters other than simply whether the father's application should be dismissed. The court made orders in terms of the second alternative formulation of orders as sought in the respondent mother’s written submissions regarding costs. The mother was awarded costs on a party-party basis.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.