Spring and Spring
[2008] FMCAfam 389
•14 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPRING & SPRING | [2008] FMCAfam 389 |
| FAMILY LAW – Practice & procedure – application for costs – mother discontinued application with late notice to the father – litigation between the parties commenced within weeks of finalisation of earlier proceedings. |
| Family Law Act 1975 Federal Magistrates Court Rules 2001 |
| Applicant: | MS SPRING |
| Respondent: | MR SPRING |
| File Number: | SYC 2756 of 2007 |
| Judgment of: | Sexton FM |
| Hearing date: | 14 March 2008 |
| Date of Last Submission: | 14 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Livingstone |
| Solicitors for the Respondent: | Etheringtons Solicitors |
ORDERS
The mother pay the father’s costs of the Application filed 17 May 2007 in the amount of $2,000 payable to the father’s legal representatives within eight (8) weeks of this Order.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Spring & Spring is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2756 of 2007
| MS SPRING |
Applicant
And
| MR SPRING |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
Introduction
I give these reasons orally.
This matter comes before me today from Federal Magistrate Kemp’s list. An application for costs was listed before his Honour today. The application for costs is brought by the father against the mother, as set out in the father's Response to the mother's application filed 17 May 2007 for interim and final orders relating to the child of the relationship, R, born in 2001, aged 6 years.
It is necessary to give a short history of this matter. The mother filed her application on 17 May 2007 seeking orders that each party be restrained from removing or causing or allowing R to be removed from the Commonwealth of Australia, and for an order that R's name be placed on the airport watch list. The mother brought the application for both interim and final orders in the same terms.
In support of her application filed on 17 May 2007, the mother filed an affidavit sworn by herself on 17 May 2007 in which she deposes to having genuine concerns that the father will take R out of the country. She says she is led to believe that the father's parents will be relocating to the United States and that the father currently lives with his parents, as does R on a week and week about basis.
The mother deposes to the father, in the past, having taken R out of New South Wales without her consent, despite an order which provided for each party to give notice to the other should they be taking R out of New South Wales. The mother further says that the father has possession of R's passport and even though not sought in her orders, in her affidavit she says she asks for an order that R's passport be retained by the court. She says:
My concerns are real and as our separation has been very hostile I feel this is a necessary step to take to ensure that week about is maintained and that R is not taken away from me indefinitely.
The mother, as I understand it, refers to the order that is in place for R to spend week and week about with each of his parents.
As already noted, the father filed a response on 16 July 2007 seeking that the mother's application be dismissed. He sought costs of the application. He sought effectively the same order on an interim basis. In support of his response, he filed an affidavit on 16 July 2007 sworn by himself on 12 July 2007, and to that affidavit he annexed a number of documents.
In essence, the father says that the issue of whether or not each party should be prevented from removing R from the Commonwealth of Australia had been canvassed in proceedings that had been finalised by way of interim orders made on 8 May 2006, and by way of final orders which he says were made on 22 March 2007 (but appear from the file to have been made on 2 April 2007), though signed by the parties on 22 March 2007. The father says that these matters have been previously addressed by the court, because the mother sought an order of this kind in the proceedings leading up to the final orders of March or April 2007. The father says that should have been the end of the matter.
The father says that there is no truth to the mother’s allegation that he intends to remove R from the Commonwealth. He says there is no truth to the allegation that his parents are relocating to the United States. He says there is no truth to the allegation that he has removed R from New South Wales without warning. He says he has not breached any orders of the Family Court and the mother has not brought proceedings against him for breach of any order.
The father acknowledges that he holds R's passport, an Australian passport. He says when R was a baby the mother suffered a breakdown and was hospitalised for a period of time, and during that period the father says his parents cared for R and took R to the United States with the mother's consent. He says his parents generally holiday in the United States once a year.
He deposes to his entire family living in Australia: his four grandparents still being alive aged between 84 and 91 years and all living in Sydney, his sister living in Sydney with five children aged under 10 years, his parents living in Sydney, and to him having no connections by way of family in the United States.
The father says he incurred over $100,000 in legal fees in the proceedings finalised in April 2007, and is concerned that the mother bringing an application so quickly after those proceedings were finalised (in fact about six weeks later) meant in his view the proceedings were vexatious.
He says the application filed by the mother was filed on the same day as he was facing criminal proceedings brought against him by the mother in Waverley Local Court. Those proceedings involved a charge of assault on the mother's brother, which the father says he is defending.
As already noted, the father brings an application for costs in relation to the proceedings brought by the mother for an injunction to restrain the parties from taking R out of the country and for a watch list order.
Relevant Law
The question of costs is governed by s.117 of the Family Law Act 1975. Section 117 provides that in the usual course each party pays his or her own costs. However, s.117(2) provides that:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may… make such order as to costs… as the court considers just.
The Court is, however, required to take into account the matters listed in s.117(2A) when deciding whether costs should be ordered.
Mr Livingstone, counsel for the father, took me through the relevant factors. He referred me to the evidence relating to the parties' financial circumstances. He submitted, and there is no dispute, that s.117(2A)(b) is not applicable as neither party is legally aided.
He referred me to the conduct of the mother and to the fact that the mother was unsuccessful in those proceedings, and asked me to take into account other matters he raised which I might consider relevant under s.117(2A)(g).
Given the relatively straightforward application brought by the mother, regrettably this matter has become quite complex, and has in fact taken the whole afternoon today. It has become complex because there is quite a history to this matter, and I am referred back to evidence and issues raised in the previous proceedings, to decide the matter before me today.
Certainly on its face, if I could make some general comments, it would seem troubling for a party who has been involved in extensive litigation in the Family Court or in this Court, to be bringing an application so quickly after final orders had been made, particularly when both parties in the litigation had been represented by counsel of long experience. It is clear from the Court record that no order has been made in interlocutory proceedings, or in the final proceedings, for each party to be restrained from removing R from the Commonwealth of Australia, and no order has been made in relation to R's passport.
I am satisfied from the material that I have been referred to, and not in dispute, that the mother raised the question of R's passport in the proceedings before the Family Court, and sought an order for R's name to be placed on the watch list and for the parties to be restrained from removing him from Australia. It is not possible for this Court now to go behind those orders and to make any findings as to why those orders were not made on a final basis or on an interlocutory basis during the course of those proceedings. Certainly I am not satisfied it was simply an oversight, given that the mother was represented and the father was represented. I can only speculate as to what might have happened, and I do not intend to do that.
The mother's case is that shortly after the proceedings were finalised in the Family Court the mother heard something from a relative who had heard something from a friend which concerned her. The mother says this at paragraph 6 of her affidavit filed 12 November 2007:
Around 8 May 2007 a friend of my sister in law told her that she was at a card party and she heard Ms F (who is Ms S's sister) say words to the effect that Ms S and Mr S [the father's parents] were closing down their business and moving to the USA with [Mr Spring] [who is the father] and our son [R].
The mother says that she was alarmed by that information because in proceedings before Judicial Registrar Loughnan in the Family Court in May 2006, the father's counsel brought to the Court's attention that the father may have some work in the United States, which may require him to travel to the United States. The transcript of those proceedings was before me today, and the mother marked on the transcript the relevant parts from May 2006.
I read from the transcript at page 10 line 28 and following, when
Ms Messner, the mother’s counsel said this:
The father's evidence is that he has applied for, negotiating with and is hopeful of getting a position that allows him to travel overseas regularly to the United States. He doesn't say how he proposes to care for R when that happens.
Judicial Registrar Loughnan said:
You think he might travel overseas during the working week?
Ms Messner for the mother said:
Well, I don't know what he's going to do, Judicial Registrar, because he doesn't tell us. All he says is he will be regularly travelling, he hopes, to the United States of America without explaining how or what that means in terms of R's care.
Further, in the transcript at page 17 approximately line 23, Mr Maurice, counsel for the father, says:
In terms of the overseas job, he talks about that in paragraph 116, but it's in the context of a job that involves travel. But it would not involve - and he says there are conferences where he could have the benefit of taking the child.
The mother says that there was a further matter that concerned her, and that was that earlier the father had taken R to Queensland for five days without her consent. The mother said she had long had concerns about the issue of R's passport. All these matters, combined with the conversation that was relayed to her on 8 May 2007, meant that she was concerned the father may take R out of the country to the United States.
The mother says this, and I read from her affidavit filed in November 2007:
Since 8 May 2007 I have rung the applicant on a number of occasions to find out whether this information was factual. I asked [Mr Spring] if it was true that his parents were relocating to the USA for business and that he and R were going also. He replied with words to the effect of, "What business is it of yours", then proceeded to laugh at me and then hung up the phone. On the other occasions that I have called him to ask the same question he had just hung up on me. He has never answered this question at all and has never denied the validity of my information. I filed my application for orders on 17 May 2007. On 7 June 2007 the father was served.
On or about 12 June 2007 the mother deposes to the father calling her and saying, “You think this stupid application of yours will keep me from taking R from you” and then hung up.
After 18 July 2007, the mother says she made inquiries with the Department of Foreign Affairs. They advised her that R's passport would expire in December 2007, and as it had less than six months to run it could not be used for travel overseas. The mother says that about three weeks later, on 9 August 2007, then knowing that R could not travel on his passport, she filed a Notice of Discontinuance of her application for the watch list order and the other restraints.
If I were satisfied that the mother had sought reassurance from the father by telephone or by any other means that he would not be taking R overseas and had no plans to go to the United States and that his parents had no plans to go to the United States, and I was satisfied that the father laughed at the mother when she sought that reassurance, I may have concluded that the mother had acted appropriately in bringing her application. However, the father vehemently denies the evidence put by the mother that she made those calls to him, and says in fact that there were apprehended violence orders in place both from the mother to him and from him to the mother preventing the parties from having any communication except in accordance with orders of the Court.
The father also vehemently denies having previously breached any Court orders. He concedes that he has R's passport, but says, as I have already noted, these matters had been canvassed in the proceedings in the Family Court, and those matters had been resolved without any reference to R's passport.
I return now to the matters in s.117(2A), the first being each party's financial circumstances when considering the question of costs.
The financial circumstances of each party – s.117(2A)(a)
Mr Livingstone cross-examined the mother as to her financial position as set out in an affidavit filed in the form of a financial statement on 14 March 2008, that is today, and sworn by her today. Mr Livingstone pointed out in his cross-examination the differences between the mother's financial statement sworn today and the financial statement the mother had sworn on 8 December 2006.
He firstly raised with the mother the accuracy of her evidence today in relation to her superannuation, and the mother conceded that she had failed to include superannuation other than the superannuation she says she has from her current employment. To be fair to the mother, she readily conceded that she had omitted the other superannuation that she had received from earlier periods of employment, and readily conceded that she had understated her superannuation in today's financial statement.
However, the mother was then questioned about the property settlement provided for in the orders of April 2007. The mother accepted that her solicitors received approximately $591,000 when a property was sold and that out of those net sale proceeds, after legal costs and some other debts paid to relatives and others, she had approximately $400,000. Mr Livingstone questioned her as to why she only today has something like 20 or 30 thousand dollars, given it is only a year since those property proceedings were finalised.
Mr Livingstone questioned the mother as to why her mortgage was identical in amount to the value of the property she now says she owns. The mother says her brothers are the mortgagees and that she has now repaid her brothers’ moneys owed to them from some time ago. The mother concedes that she did not include the debts to her brothers in previous financial material in the proceedings in the Family Court, and says she did not do so because “nothing was written down”. She says she owed each of her brothers $170,000, and had bought furniture. That is why her assets are so few today.
I have concerns about the mother's credit as a result of the evidence she has given as to her financial position. Had the mother had substantial moneys owing to her brothers, I am in no doubt she would have told her legal representatives through the course of the Family Court proceedings, and those debts would have been included in her previous financial statements and been an issue in the proceedings before the Family Court. I am therefore unable to make any findings today as to the true state of the mother's financial circumstances.
In relation to the father's financial circumstances he was not questioned. He has sworn a financial statement in August of last year. In that document he swears to a gross income each week of $700, to superannuation of $45,000 and to a net asset pool of approximately $7000. I am satisfied on the basis of the father's financial statement sworn in August 2007 that his financial position is a modest one.
The conduct of the parties in relation to the proceedings – s.117(2A)(c)
In relation to the conduct of the parties, as already noted, had I been satisfied that there had been an inadvertent omission in the final Family Court orders in relation to the watch list order or the injunctions sought by the mother in her application, and had I been satisfied that the mother had endeavoured to seek reassurance from the father that he was not planning to take R to the United States, I might have been satisfied that the mother's conduct had been reasonable.
I find that there is a high degree of acrimony between these parties and a high level of distrust. In such circumstances it is not surprising that the mother would be alarmed by hearing a report overheard by a friend that the father's family were thinking of going overseas. I accept
Mr Livingstone's submission that had the mother been truly alarmed she may have brought her application on an ex parte basis and sought short service of the application, which she did not do. And perhaps she would not have contacted the father to check on the veracity of the rumour. I am not troubled by the latter. I think it appropriate for a mother to check such a rumour before taking any action in a Court.
In her evidence today the mother made it clear that she had had lingering concerns for some time about whether the father might take R away from her. She said the father had said to her in the past, on a number of occasions, words to the effect, "I will take R away from you". I am satisfied that the mother has had lingering concerns, that the mother was aware that the father had been considering doing some work in the United States and perhaps taking R on an appropriate trip at some time to the United States if he were working there and there was an opportunity to take him.
The difficulty for the mother is that these matters had been raised in the Family Court proceedings. The mother walked away from those proceedings with a consent order at the end of the day which did not address those matters. I am therefore satisfied that the matter was put to rest in some way at that time, despite the matters that had caused the mother concern in the past. Had those concerns been continuing, I find it difficult to accept that the mother would have walked away from those proceedings without some kind of restraint on the father, perhaps mutual, that neither party remove R from the Commonwealth of Australia. That did not happen.
I next consider the mother’s conduct after those orders were finalised and after the mother heard the rumour deposed to in her affidavit. As already noted, the mother says she sought reassurance from the father. The father says she did not seek reassurance at any time. The mother concedes that she did not call Etheringtons, the father's solicitors, to raise it with them, nor did she write them a letter setting out her concerns and seeking an undertaking from the father that he would not remove R from Australia. She says she phoned the father, an assertion denied by the father. On balance I am satisfied that if apprehended violence orders were in place, (not denied by the mother), prohibiting communication except via lawyers and except in accordance with orders of the Court, I am not satisfied those communications occurred, as deposed to by the mother.
I say this despite the fact that I find it is likely, that in the past, which may have been some time ago, the mother has raised concerns at different times about the issue of the passport. I am critical of the mother's conduct in initiating these proceedings without sending a letter or some other form of communication to either the father or his solicitors seeking some kind of undertaking, and now relying solely on conversations, given the level of the parties' distrust of each other and the poor level of the parties' communication.
I find an inconsistency in the mother's position in that despite the level of her concern, she did not move very quickly,. She says that she discontinued her application because in July the passport office told her that R's passport would not have been of any benefit to the father if he were trying to leave the country given it was to expire in December of last year.
The mother says she could not afford a solicitor, and although that may be so, from her experience in this Court, I am satisfied the mother would have known of the need to notify the father of the Notice of Discontinuance. I accept that the mother may have been confused by speaking to the help line at the court about how the court might deal with a Notice of Discontinuance. This is not a factor that I take into account against the mother.
Mr Livingstone properly puts to me that the father did not handle this as well as he might have either, no doubt because of the history of litigation between the parties, because of the level of distrust between them, because of the poor communication between them, and because each party has an apprehension about what the other party will do if that party takes any wrong step. The father, I accept, has some apprehension that if he were to have spoken to the mother about matters other than matters very specifically related to R he may have been in some difficulty with the apprehended violence order.
However, given the father would have been aware that the mother did have an ongoing anxiety about the fact that he held the passport, and given that he would have been aware the mother had previously sought an order of this kind, he may have been prepared to suggest to the mother that an order be made by consent, or something be done with the passport, to give the mother some reassurance. Sometimes a party has particular concerns which the other party thinks are unreasonable, but which nevertheless are real concerns for that party. And having heard from the mother today it does seem to me that the mother does have an ongoing lingering concern about this issue, and some reassurance from the father may be of some assistance.
Mr Livingstone submits that the mother's application was never bona fide, because of the timing of the application, the fact that it was not brought ex parte or on short notice. As I have already said, I think there is some merit in that submission, although her actions may be explained to some extent by her belief that R’s abduction was not imminent.
On balance, I am not satisfied the father handled it as well as he might have, but I am certainly not satisfied that the mother did everything she could to avoid proceedings, particularly in light of the fact that the proceedings had been ongoing until only a month or six weeks earlier.
I can make no finding as to whether the father breached an order taking the child to Queensland. It may be that the father did give notice to the mother and that she did not receive that information at the time. In any event I do not find it necessary to make a finding about that matter today.
My concern in relation to the mother's conduct arises because these issues were live issues in the proceedings in the Family Court.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings – s.117(2A)(e)
Mr Livingstone submits that the mother was wholly unsuccessful. As I have already noted, the mother discontinued the proceedings and the father was not troubled by having to have the matter determined by the Court. It is certainly a pity that the father was not served with the Notice of Discontinuance, because it would have saved the father some costs.
Any other matter the court considers relevant – s.117(2A)(g)
I take into account the fact that these parties have a long history of litigation and the Court must do what it can to deter further litigation between parties, particularly when those proceedings involve children. These parties are endeavouring to manage a co-parenting arrangement which involves young R, only 6 years of age, moving between the parties week to week. That is a tough ask for a young boy, and it is clear from the social science research that it only works well for a child when parties have a good co-operative parenting relationship: that is, they can talk to each other, they can be flexible with each other to assist the child, and remain focused on his best needs.
As I have said many times in this Court room, I think moving between households can be very tough on children. I do not think that either party would want to have to shift house every week, but that is what young R has to do. The least that the parents can do is to try to work co-operatively together to make that burden easier on this young boy who did not choose to be in this situation. So I take into account the need to deter further litigation between these parties.
Determination
Ms Spring submits to me that she cannot afford to pay costs and that she did endeavour to minimise the costs by making an offer to settle the costs issue. She says she has acted reasonably at all times. It is her case that she did make efforts to seek reassurance from the father, and as I have earlier noted, had I been satisfied that that had happened in the way she described, the result of these proceedings may be different.
I accept Ms Spring's submission that the father could have agreed to an order of the kind that she was seeking and that that would have saved him some costs. She says she properly discontinued the proceedings when she realised that the passport was not going to be valid for the purposes of taking R overseas, and she was protected. She says for those reasons the application for costs should be dismissed.
I am satisfied that these proceedings could have been avoided had the parties been able to communicate in a civilised, adult and mature fashion for R's sake. As I have already noted, sometimes a party does have anxieties or apprehensions which the other party thinks are unreasonable. In this case the father, I think, had an apprehension that the mother would cause him more difficulties if he were to attempt to communicate directly with her. On the other hand the mother had an apprehension that the father was belittling her concerns and this is an issue for her.
The mother may have been wise to have pressed for an order at the time of the final Family Court orders, but for whatever reason, that did not happen. I do take into account as a relevant circumstance that the parties were represented and were on the litigation pathway for a long time and these matters could have been dealt with in those proceedings without further proceedings being warranted.
I am satisfied in all the circumstances that there should be an order for costs against the mother, although not in exactly the terms sought by the father. The father amended the orders he sought from those in his application, no longer seeking an order for costs on an indemnity basis, but rather on the basis of the Federal Magistrates CourtRules 2001 Schedule 1. In accordance with the schedule, the costs of the proceedings for the watch list order are in the order of $1700.
To avoid any further application for costs of the costs application I have also considered the schedule costs be on the application for costs. Those would be approximately, and it seems very disproportionate, $4500.
As I have noted previously the mother did make an effort to settle the question of costs, and as the schedule was approximately $1700 and the mother made an offer of $1000, I am satisfied that is a significant matter to which I should have regard in looking at the question of costs of the original application.
Even though I am not satisfied that I can make any finding as to the mother's particular financial circumstances, on a consideration of what the mother achieved in the property settlement only a year ago, I am satisfied that her financial circumstances are modest and that she is not in a position to pay a significant order for costs. I am satisfied that whatever order I make, the order impacts on the moneys available for both parties to care for their son, R. Children are expensive and each party needs all the money they have available to assist in his care and to provide him with his proper needs. I take all those matters into account.
I make an order for costs in favour of the father in the sum of $2000. The mother will pay the costs, which include the costs of the costs application as well as the costs of the proceedings initiated last May, to the father's solicitors within eight weeks of today.
All other applications are dismissed and the matter removed from the list of cases awaiting finalisation.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 23 April 2008
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