Tarelli and Langley and Anor (No 2)

[2018] FamCA 768

FAMILY COURT OF AUSTRALIA

TARELLI & LANGLEY AND ANOR (NO 2) [2018] FamCA 768

FAMILY LAW – COSTS – Where the father is seeking costs against the mother for an unsuccessful application to re-open proceedings [judgment reserved] and lead fresh evidence – Where the mother has not complied with orders to pay the father a sum of money by way of property adjustment - Whether costs be paid on an indemnity or party/party basis – Ordered the mother pay the father’s costs on a party/party basis as agreed or assessed – Ordered the costs be charged upon any asset of the parties’ de facto relationship.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Tarelli

RESPONDENT: Ms Langley

INTERVENER: The Department of Family & Community Services

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: PAC 4311 of 2014

DATE DELIVERED: 26 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Cleary J

HEARING DATE: 14 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shaw

SOLICITOR FOR THE APPLICANT: B David & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT:	Appearing in person
COUNSEL FOR THE INTERVENER:	Mr Harper

SOLICITOR FOR THE INTERVENER: Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders

1. That Ms Langley (“the mother”) shall pay the costs of Mr Tarelli (“the father”) arising from the contested application of the mother to re-open proceedings, heard 21 June 2018, in a sum as agreed or assessed on or before 16 November 2018.

2. That the costs as agreed or assessed be charged upon any assets received as a result of final orders made on 27 June 2018 (“final orders”) or of orders made by the Full Court of the Family Court of Australia after the hearing and determination of any appeal from the final orders.

3. That the following applications of the father are otherwise dismissed;

   a)Response to an application in a Case filed 12 June 2108;

   b)Application in a Case filed 2 August 2018.

4. The following applications are listed for hearing/directions at 10.00 am on Wednesday 7 November 2018:

   a)Application in a Case filed by RR Pty Ltd on 14 June 2018;

   b)Application in a Case for a stay filed by the mother on 30 August 2018;

   c)Application in a Case for enforcement filed by the father on 4 September 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4311 of 2014

Mr Tarelli

Applicant

And

Ms Langley

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 14 September 2018 this application of the father for costs came before me. The costs application arose from a prior application of the mother to re-open proceedings.

Court Event 27 June 2018

1. On 27 June 2018 an application of the mother to re-open substantive proceedings [judgment reserved] and lead fresh evidence was dismissed.[1]

   [1] Application of the mother filed 28 May 2018 [amended 20/06/2018]

2. The father, the Independent Children’s Lawyer and the intervener had opposed the application. The father had filed a Response[2] to the Application in a Case proposing dismissal and two other orders (paraphrasing):

   2.That the mother pay the father’s costs on an indemnity basis and that a charge be ordered upon assets received by the mother in relation to property adjustment.

   3.Security for costs ($100,000) in the event leave to re-open was granted.

   [2] Response to Application in a Case filed 12/06/2018

3. The next order of the Court made on 27 June 2018, after dismissal of the application to re-open, was as follows:

   In response to the application of the father filed 12 June 2018[3] in respect of costs, the mother is to file any written submissions on which she relies by close of business Friday 26 (sic) July 2018.[4]

   [3] Order 2 of Response to Application in a Case filed by the father 12/06/2018

   [4] The date was incorrect and should have read Friday 27 July 2018

4. The mother did prepare and serve submissions. She did so out of time, providing them to the legal representatives for the other parties and the Court on or about 30 July 2018.

5. Through no fault of the mother, the submissions, although emailed to the Court, did not reach the presiding judge.

Court Event 14 September 2018

1. On 14 September 2018 there was listed before the Court a Stay application and other related applications involving these parties, and third parties. Those other applications were adjourned, pending a decision of the Full Court.

2. The mother prepared to appeal. Her application to appeal was rejected, being out of time. There was a decision pending before the Full Court on the leave application when this costs application was heard.[5]

   [5] That decision was delivered on 19/09/2018. Time for filing the appeal was extended.

3. The application of the mother was to adjourn the costs application of the father to a date to be advised [in parallel with her stay application and the father’s enforcement application].

4. The father pressed for it to be determined.

5. The application of the father for costs had been amplified by the filing of a further Application in a Case[6] supported by an affidavit of the father. An itemised bill of costs was annexed.

   [6] Application in a Case filed by the father on 2/08/2018

6. At this Court event, the fact of the mother having prepared and emailed submissions came to the attention of the Court. A copy was handed up. Leave was granted to the mother to rely on the submissions[7] provided to the other parties (slightly) out of time.

   [7] Exhibit 1

7. The application of the father was for the Court to determine the matter on the evidence of the father and to disregard the late written submissions of the mother.

8. I concluded that the appropriate course was to determine the matter of costs, in chambers. Both parties had had the opportunity to be heard but the Court had not had the opportunity to consider the submissions of the mother.

9. I do so now as follows:

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father

   (a)Response to an Application in a Case filed 12/06/2018;

   (b)Affidavit of father filed 12/06/2018;

   (c)Application in a Case filed 2/08/2018;

   (d)Affidavit of the Father filed 2/08/2018;

   The Respondent Mother

   (e)Submissions emailed to the Court 30/07/2018.

The Law

1. Section 117 of the Family Law Act 1975 (Cth) provides that subject to subsection (2) [and other sections not relevant here] each party shall bear his or her own costs.

2. If the Court is of the opinion that there are circumstances which justify it in doing so, the Court may, subject to subsection (2A) (mandatory considerations [and other sections (4), (4A) and (5) not relevant here] may make such order as to costs as the Court considers just.

Relevant Considerations – Section 117(2A)

(a) Financial Circumstances

1. The father is self-employed. His level of income disclosed at trial had improved to $1328 per week since he had sworn his Financial Statement.

2. The mother declares that she is in receipt of no income, private or public. She does not refer in submissions to how she is supporting herself. The mother is a professional but is currently not working.

3. Income is not the end of the matter. I also take into account the assets of the parties.

4. The father has legal title to the property which the mother lives in. An order has been made for him to receive the sum of $257,912 (with transfer of title to the mother) by way of property adjustment.

5. The mother has not complied with the orders to pay the stated sum to the father or, at all.

6. I do not take into account for the purposes of this application the income and resources of the father’s partner.[8]  That person has no legal obligation to contribute to the legal costs of the father.

   [8] Submissions of the mother, par 4

7. The financial circumstances as to assets of the parties has some weight where the father has not had the benefit to any extent of the fruits of the judgment. He is supporting the parties’ child.

(e) Success in the proceedings

1. The mother was wholly unsuccessful in her application to re-open. It was dismissed.

(g) Other relevant matters

1. The mother made the submission[9] that the timing of delivery of final orders weighed against an order for costs being made.

   [9] Submissions of the mother, pars 7 to 9

2. I reject that submission.

3. The mother had been having supervised time with the parties’ child at time of trial. At the conclusion of trial in November 2017, there was no indication that the mother would immediately become unwilling or, as she submits, unable, to see the child as she had been doing.

4. The provision for supervised time was open throughout the period when judgment was reserved.

5. The mother continues to have no time with the child and repeated today that she feels unable to do so.

Conclusion

1. I consider that the mother being entirely unsuccessful in her application has weight, as does the financial position of the father, and that costs should be ordered.

Costs

1. The father applied for indemnity costs. I do not consider that there are exceptional circumstances in this case to justify indemnity costs.

2. The mother suffers from Post-Traumatic Stress Disorder diagnosed both by her treating psychiatrist and by the Chapter 15 Expert who provided a report and gave oral evidence.

3. The fact is that the mother has either chosen not to see the child or her illness has worsened such that she is emotionally incapable of seeing the child. I take into account what is at least a possibility that the mother’s mental health has deteriorated since the trial.

4. Again, there is at least a possibility that the judgment of the mother in making her application to re-open in May 2018 had, by then, been adversely affected by her mental state.

5. Accordingly an order is made for the mother to pay costs on a party/party basis as agreed or assessed on or before 16 November 2018.

6. An order, as sought, is also made for a charge of the costs on the assets of the parties’ de-facto relationship. There is evidence that the mother has not paid her previous legal representatives.[10] Further the evidence of the mother is that she has no present income. There is a real risk that the mother will be unwilling and /or unable to comply with the costs order from her present resources.

   [10] Application for a charge arising from solicitor’s lien before the Court, filed 14/06/2018

7. Orders are made accordingly.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 26 September 2018.

Associate: 

Date: 26 September 2018