Suen & Kaw

Case [2021] FamCA 509

FAMILY COURT OF AUSTRALIA

Suen & Kaw [2021] FamCA 509

File number(s): SYC 1880 of 2019
Judgment of: ALTOBELLI J
Date of judgment: 20 July 2021
Catchwords: FAMILY LAW – COSTS – Father seeks indemnity costs of a review application filed and discontinued by the maternal grandparents – Consideration of s 117(2A) factors – Where Court views that costs order would detrimentally affect relationship between the parties and consequently the child’s wellbeing – Application for costs dismissed.
Legislation:

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.18

Cases cited:

Bhatt & Acharya (Costs) [2017] FamCAFC 71

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 536

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Hillier & Olly [2017] FamCA 2

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

Lenova & Lenova (Costs) [2011] FamCAFC 141

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Phillips & Hansford [2020] FamCAFC 28

Ventura & Ventura [2020] FamCA 1127
Number of paragraphs: 40
Date of last submission/s: 31 May 2021
Date of hearing: 31 May 2021
Place: Sydney
Counsel for the Applicant: Ms Stenmark SC
Solicitor for the Applicant: AHL Legal
Counsel for the Respondents: Ms Beck
Solicitor for the Respondents: Lin Tang & Co
Counsel for the Independent Children's Lawyer: Mr Fermanis
Solicitor for the Independent Children's Lawyer: Claremont Legal

ORDERS

SYC 1880 of 2019
BETWEEN:

MR KAW

Applicant
AND:

MR SUEN AND MS CHUNG

Respondents

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

20 JULY 2021

THE COURT ORDERS THAT:

1.The father’s application that the maternal grandparents pay his costs of and incidental to the Application in a Case filed by the maternal grandparents on 22 February 2021 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Suen & Kaw has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. These reasons for judgment explain the orders that the Court has made dismissing the application for costs made by the father.

    BACKGROUND

  2. This is a tragic case.  At the centre of the conflict is a seven year old boy, X.  In 2018 X and his parents were involved in a motor vehicle accident.  At the time, the vehicle was being driven by the…

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Suen & Kaw [2021] FamCA 509
Case
[2021] FamCA 509
Decision Date

CaseChat Overview and Summary

In the matter of *Suen & Kaw*, the father (Mr Kaw) sought indemnity costs from the maternal grandparents (Mr Suen and Ms Chung) concerning an application filed and subsequently discontinued by the grandparents. The dispute arose in the context of proceedings concerning the welfare of a seven-year-old boy, X, whose mother had died following a motor vehicle accident involving the father.

The primary legal issue before the Court was whether to grant the father's application for indemnity costs, considering the factors outlined in section 117(2A) of the *Family Law Act 1975* (Cth). This involved assessing the financial circumstances of the parties, their conduct in the proceedings, the merits of the discontinued application, and any other relevant considerations.

Altobelli J dismissed the father's application for indemnity costs. The Court reasoned that while the grandparents' application to increase their time with X was ultimately unsuccessful and their delay in discontinuing it was not ideal, their conduct did not warrant an indemnity costs order. Crucially, the Court considered that making any costs order would likely exacerbate the existing conflict between the father and the grandparents, which would be detrimental to the child X's wellbeing. Applying the discretion afforded by section 117(1) of the *Family Law Act 1975* (Cth), the Court concluded that each party should bear their own costs.

Orders

Orders of the court

SYC 1880 of 2019

BETWEEN:

MR KAW

Applicant

AND:

MR SUEN AND MS CHUNG

Respondents

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

20 JULY 2021

THE COURT ORDERS THAT:

1. The father’s application that the maternal grandparents pay his costs of and incidental to the Application in a Case filed by the maternal grandparents on 22 February 2021 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

These reasons for judgment explain the orders that the Court has made dismissing the application for costs made by the father.BACKGROUND This is a tragic case. At the centre of the conflict is a seven year old boy, X. In 2018 X and his parents were involved in a motor vehicle accident. At the time, the vehicle was being driven by the father. Three days later X’s mother died as a result of the injuries she suffered in this accident. The father was charged in relation to the motor vehicle accident, pleaded guilty, and then sentenced to 200 hours of community service which he has now completed. On 30 May 2019, his Honour Judge Monahan made orders by consent that X would live with his father and spend time with the maternal grandparents. Those orders were varied on 15 October 2019 for X to spend more time with the maternal grandparents. The grandparents made a further attempt to increase their time with X before Senior Registrar Campbell as he then was on 2 February 2021, but that application was dismissed. By way of an Application in a Case dated 22 February 2021, the grandparents asked the Court to review the orders made by Senior Registrar Campbell and to make further and specific orders in relation to school holiday time. In the father’s Response to that Application in a Case, he proposes that the application be dismissed and that the grandparents pay his costs on an indemnity basis, or alternatively on a party-party basis. On 21 May 2021, the grandparents filed a Notice of Discontinuance of their application for review. Thus, when the matter came before the Court on 31 May 2021, the sole issue was costs. On this basis, the Independent Children’s Lawyer was excused. For the purposes of this judgment, the father will be referred to as the Applicant and the grandparents will be referred to as the Respondents. By way of further background there are separate proceedings currently underway between the parties in the Probate List of the Supreme Court of New South Wales Equity Division arising out of the estate of X’s late mother.THE MATERIAL BEFORE THE COURT There is some expert evidence relied upon by the parties that is relevant background to the costs application. First, there is the single joint expert report dated 12 March 2020 prepared by Ms B, a forensic and clinical psychologist, marked by the Court as exhibit A4. Next, there is a report from Mr C dated 25 January 2021, marked by the Court as exhibit R19. He is the treating psychologist for the maternal grandparents. Finally there is the report of Ms D dated 10 May 2021, annexed to her Affidavit filed on the same date and marked by the Court as exhibit A5. Ms D is a registered psychologist who has been providing treatment to X, his father and maternal grandparents. In support of his case, the Applicant relied on the following documents:(a)His Response to an Application in a Case filed 9 November 2020;(b)His Affidavit filed 9 November 2020;(c)His Affidavit filed 2 February 2021;(d)His Affidavit filed 7 May 2021;(e)His Case Outline document filed 7 May 2021;(f)His Response to an Application in a Case filed 10 May 2021;(g)His Affidavit filed 31 May 2021; and(h)Various pieces of correspondence tendered as exhibits A1 to A3.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

While the maternal grandparents were wholly unsuccessful in their application, the Court’s impression is that their application was not a hopeless one, at least before the release of Ms D’s report. As in the case of party-party costs, the decision to award indemnity costs is a discretionary one: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225. The Court is not satisfied that the conduct of the maternal grandparents, and their delay in filing the Notice of Discontinuance, was so exceptional as to warrant the making of an indemnity costs order.CONCLUSION ABOUT COSTS This is a case where there the child is not only coming to terms with the loss of his mother, but also faced with the distressing reality of ongoing conflict between his father and his maternal grandparents. As discussed above, the Court has wide discretion in determining whether or not to make a costs order. There have been cases where the Court has declined to make costs orders in circumstances where making of such order would further jeopardise a relationship against a child’s best interests: see, eg, Hillier & Olly [2017] FamCA 2; Ventura & Ventura [2020] FamCA 1127. This is such a case. This Court is concerned that any costs order would only exacerbate the conflict between the father and the maternal grandparents, to X’s detriment. Having considered the factors in s 117(2A) in their totality, my view is that s 117(1) applies and each party is to bear their own costs.

Ratio Decidendi

Legal Principle Established

Thus, the Court observes, the expert evidence did not support the maternal grandparents’ application to spend more time with X. Indeed, even their own treating psychologist’s report was largely unhelpful.THE SECTION 117(2A) CONSIDERATIONS None of the parties in this case are in a strong financial position. The litigation about the estate of the late mother will do very little to improve the situation. The evidence suggests that the maternal grandparents are almost impecunious, and rely on others for assistance, particularly in relation to legal costs. Mere impecuniosity is not a reason in itself for declining to make a costs order: see, eg, Lenova & Lenova (Costs) [2011] FamCAFC 141; Bhatt & Acharya (Costs) [2017] FamCAFC 71. The financial circumstances of each party is a matter that the Court takes into account. None of the parties in this case are in receipt of assistance by way of legal aid. In relation to the conduct of the parties to the proceedings, there was a delay between the maternal grandparents becoming aware of the contents of Ms D’s report and the filing of the Notice of Discontinuance. In some respects, this was probably not productive of expense to the father because he had already filed his material, but that probably masks the reality that further costs were incurred in preparation for the interim hearing. The Court was not able to ascertain why there was a delay. It would have been far better if the grandparents filed the Notice of Discontinuance earlier than they did. This is a matter that the Court takes into account. Further in relation to the conduct of the grandparents, the father submits that they were pursuing an application that lacked merit, particularly having regard to the available expert evidence, even that of the grandparents’ own psychologist. If one puts aside the reality of the grief that the grandparents must be experiencing, it is hard to understand why they persisted in their quest for more time. The Court suspects that their grief impaired their ability to consider this matter clearly and objectively. By the time that Ms D’s report had been made available to the grandparents on or about 10 May 2021, it should have been clear to them that their application was highly problematic. This is a matter that the Court takes into account. The proceedings were not necessitated by the failure of any one to comply with orders of this Court. Even counsel for the maternal grandparents conceded that they had been wholly unsuccessful in their application to review the decision of the learned Senior Registrar. This must follow as a result of the filing of the Notice of Discontinuance. This is a matter that the Court takes into account. The correspondence between the lawyers for the parties pertaining to the application for review was in evidence. In an email dated 12 May 2021, the Independent Children’s Lawyer asked whether the maternal grandparents were pressing their application for review. In an email of the same date, the solicitor for the maternal grandparents confirmed that he would seek instructions. About a week later, on 20 May 2021, the solicitor for the maternal grandparents sought the consent of the parties to withdraw the review application. The solicitor for the father replied on the same day indicating there was no consent to the withdrawal with no order as to costs, and requested consent orders to provide for the maternal grandparents to pay the father’s costs on an indemnity basis. Beyond this, it is not evident to the Court that any other offers of settlement were made. This is a matter that the Court takes into account.