Taryn and Sindall - [2010] FMCAfam 1175

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TARYN & SINDALL

[2010] FMCAfam 1175

FAMILY LAW – Costs – whether large difference in parties’ financial resources relevant to order for costs – whether conduct of parties relevant.

Family Law Act 1975 (Cth), ss.117, 65DA
Family Law Rules 2004 (Cth)
Federal Magistrates Court Rules 2001

Taryn & Sindall [2009] FMCAfam 1214
Sindall & Taryn [2009] FamCAFC 108
Penfold and Penfold (1980) 144 C.L.R. 311
Kelly and Kelly (No2) (1981) FLC 91-108
Carmel-Fevia & Fevia (2009) FamCA 9

Applicant:

MS TARYN

Respondent:

MR SINDALL

File Number:

DGC 234 of 2008

Judgment of:

Phipps FM

Hearing date:

18 March 2010

Date of Last Submission:

18 March 2010

Delivered at:

Dandenong

Delivered on:

29 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr G Holmes

Solicitors for the Applicant:

Tyler Tipping & Woods

Counsel for the Respondent:

Mr Strum

Solicitors for the Respondent:

Richmond & Bennison

Counsel for the Independent

Children’s Lawyer:

Ms M Stavrakakis

Solicitors for the Independent

Children’s Lawyer:

Victoria Legal Aid

ORDERS

That the father pay 70% of the mother’s costs of the proceeding, such costs to be agreed and if not agreed to be taxed under Chapter 19 of the Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment under the pseudonym Taryn & Sindall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

DGC 234 of 2008

MS TARYN

Applicant

And

MR SINDALL

Respondent

REASONS FOR JUDGMENT

Ms Taryn, the mother, applies for an order for costs against Mr Sindall, the father. The father proposes that each party pay their own costs. The proceeding between the parties concerned the living arrangements for their two children [X] born [in] 2005, and [Y] born [in] 2006. The decision is reported as Taryn & Sindall [2009] FMCAfam 1214.
The Independent Children’s Lawyer applied for costs against both parties. That application was settled by an agreement that the father pay the Independent Children’s Lawyer costs of $5,000.
Section 117(1) of the Family Law Act 1975 (Cth) provides that each party is to bear their own costs, but subject to sub-s.(2). Subsection (2) provides that if the Court is of the opinion that there are circumstances that justify doing so the Court may make such order as to costs as the Court considers just. Subsection (2A) sets out the matters the Court shall have regard to in considering making an order under sub-s.(2).
The history of the proceedings and the parties proposals are described in the judgment. Some reference to them is necessary.
The mother and father commenced living together in September 2002. The parties initially separated on 20 July 2007. The mother took the children with her when she left. The father saw the children at [omitted] Contact Centre. The parties had several attempted reconciliations the last one from late December 2007 until 15 or 17 January 2008, when they finally separated.
The father did not see the children until May 2008. The mother commenced these proceedings in January 2008. The first court date was at the Moe Circuit in February 2008. The father had not been served. I made orders that the children live with the mother and the father's time with the children be reserved.
At the next court date in May 2008 consent orders were made for the father to spend supervised day time with the children. The parties agreed on the preparation of a report and subsequently agreed that that be done by Dr J. The proceedings were fixed for final hearing in the August 2008 circuit.
The final hearing did not proceed in August 2008. Dr J had prepared his report. After a contested interim hearing I ordered the daytime time continue increasing to 10.00am to 5.00pm each Wednesday and Sunday. I fixed the final hearing for February 2009 in Melbourne.
In October or November 2008 the parties attended mediation. They agreed to have overnight time between the father and the children and then come back to mediation. Commencing early December 2008 the children had four occasions of overnight time of one night with their father. The mother would not continue with any further overnight time.
In December 2008 the mother commenced seeing a psychologist

Mr W. He saw the mother and the children at their home on

15 occasions between December 2008 and September 2009. Mr W gave evidence during the hearing. He advised the mother that the children should be spending time with the father each alternate weekend from Friday afternoon to Sunday afternoon. The mother did not accept his advice.
The father appealed against the interim orders. The appeal had not been heard by February 2009 and so the final hearing was adjourned to May 2009. By then the appeal had been heard but judgment had not been given and the final hearing was again adjourned. I fixed the hearing for October 2009, by which time the appeal had been dismissed. (Sindall & Taryn [2009] FamCAFC 108).
At the commencement of the hearing the mother proposed that she have sole parental responsibility for the children, that they live with her and not spend overnight time with the father until 2010 and then only one night, not progressing to 2 nights until [X] commenced school.
At the end of the hearing her proposal was that she have sole parental responsibility for the children, that the children live with her and not spend overnight time with the father until January 2010, and then until June 2010 each alternate weekend from 10.00am Saturday to 5.00pm Sunday and each alternate Wednesday from 10.00am to 5.00pm. She proposed that from June 2010 the weekend time be extended to commence on Friday at 4.00pm and from June 2011 the Wednesday time be extended to overnight.
The father’s proposal at the commencement of the hearing was that the children should spend equal time with their mother and father. At the end of the hearing that still remained his principal proposal, but he had acknowledged in his evidence that the lack of communication between him and the mother meant that it was not possible at present. It was still his long-term goal.
At the conclusion of the hearing his counsel said that equal time was still the father’s primary proposal but did not support it with submissions. The father’s alternative proposal at the end of the hearing was that the mother and the father have equal shared parental responsibility for the children and that the children live with the mother and spend time with the father. He proposed that they spend time with him commencing immediately each alternate weekend from 5.00pm Friday to 5.00pm Sunday, then commencing 1 May 2010 each alternate weekend from 5.00pm Friday until 9.00am Monday. He proposed that until [Y]'s birthday on [date omitted] 2009 the children spend time with him each alternate Wednesday from 10.00am to 5.00pm, and after [Y]’s birthday each alternate week from 9.00am Wednesday to 9.00am Thursday.
The Independent Children's Lawyer’s recommendation was that the parties have equal shared parental responsibility for the children, that they live with their mother and spend time with their father until [date omitted] 2009 each alternate weekend from Saturday at 10.00am until Sunday at 5.00pm and each Wednesday from 10.00am to 5.00pm, then until May 2011 each alternate weekend from 9.00am Friday until 5.00pm Sunday and each alternate week from 9.00am Wednesday until 9.00am Thursday and after that each alternate weekend from Friday 5.00pm until 5.00pm Monday and each alternate Wednesday from 9.00am until 9.00am Thursday. For holidays the proposal was from September 2010 half school holidays and up to September 2010 weekend time be extended to four days in the school term holidays.
The orders I made are that the parties have equal shared responsibility for the children, that they live with the mother and spend time with their father until [date omitted] 2009 each alternate weekend from Saturday at 10.00am until Sunday at 5.00pm and each Wednesday from 10.00am to 5.00pm, until May 2011 each alternate weekend from 9.00am Friday until 5.00pm Sunday and each alternate week from 9.00am Wednesday until 9.00am Thursday and then each alternate weekend from Friday 5.00pm until 5.00pm Monday and each alternate Wednesday from 9.00am until 9.00am Thursday. I ordered that there be an extended weekend time during school holidays until third term 2010 after which the children spend half school term holidays and half summer holidays with the father.
The wife’s submission is that the disparity between the parties’ income and financial resources and the conduct of the father in relation to the proceedings should result in an order that the father pay the mother’s costs.
Section 117(2A)(a) is the financial circumstances of the parties. At a directions hearing the mother applied for an order that the husband file and serve a financial statement. The father resisted the application. His submission was that the wife and he were parties to a proceeding in the County Court of Victoria under the defacto property laws of the State of Victoria and the information in the financial statement might go beyond what the wife was entitled to in the County Court of Victoria litigation and so the father may be disadvantaged. Through his counsel he conceded that he had the ability to meet any order for costs. Given the concession I did not order the father to file a financial statement. During the hearing the husband gave evidence that he had incurred and paid costs of over $200,000, and that his late father’s estate, of which he is a beneficiary, had a value of some millions of dollars.
The mother lives in rented accommodation. The father’s submissions are critical of the mother for not filing a financial statement, although he did not apply for an order that she do so. The father’s submission says that the mother is one of two directors and an equal shareholder together with the father in [N] Pty Ltd which is the registered joint proprietor of the farming property upon which the former matrimonial home is situated and that she is the plaintiff in County Court of Victoria proceedings against the father for alteration of property interests.
During the relationship the mother worked in the fathers’ [omitted] company business. Her affidavit filed on 21 January 2009 gives some information about her financial position. She says that the settlement monies she received from her first marriage (approximately $41,000) were used by the father to pay a debt he owed and to pay school fees. She also claims that the father used her wages in the first year to pay a debt he owed. The father in affidavits disputes that the mother lacked financial resources during the relationship and gives some detail in an affidavit filed on 25 May 2008.
In paragraph 26 of the affidavit filed on 21 January 2009 the mother says that she had difficulty in accessing Centrelink benefits because her relationship with the father made her appear asset rich although she could not access them. The father’s affidavit describes the home in which the parties lived as being owned by him.
Payment of child support by the father was an issue in the hearing and is referred to in the submissions on costs of both parties. The mother’s submissions say that the father is not paying child support. The father’s submissions say that the mother “has been paid some child support, albeit that the administrative assessment and arrears are and have been the subject of applications to the Child Support Agency”.
A letter dated 9 October 2009 to the mother from the Child Support Agency, exhibit M4, says that her monthly entitlement is $1,549, arrears are $21,556.71, and prescribed non agency payments credited were $421.30 on 6 October 2009.
I conclude that the mother has received only limited child support payments from the husband and that she has been largely dependant on Centrelink payments. Her income earning ability is modest. Her asset position depends on the outcome of the County Court of Victoria proceedings.
Section 117(2A)(b) is whether either party is in receipt of legal aid. Neither party is in receipt of legal aid.
Section 117(2A)(c) is the conduct of parties in relation to the proceedings. Each party alleges the other parties conduct justifies an order for costs.
The final hearing was adjourned twice, 4 February 2009 and 18 May 2009, pending the resolution of an appeal by the father against interim orders I made on 27 August 2009. Judgment in the appeal was delivered by O’Ryan J on 29 May 2009. His Honour dismissed the appeal and ordered that the father pay the costs of the mother of and incidental to the appeal. Costs incurred by the mother by reason of the two adjournments have been incurred by the conduct of the father pursuing an unsuccessful appeal and should be paid by the father irrespective of any other considerations.
The hearing took 10 days. Each party alleges the conduct of the other party prolonged the hearing. The mother submits that the father “doggedly” pursued his application for equal time. She submits that time was taken by objections to evidence on behalf of the father many of which were rejected. Time during the hearing was taken up by an application by the father for further interim orders providing for the children to have overnight time with the father, the hearing be adjourned while that took place, then a further family report be prepared and the hearing resume. The application was rejected.
The father submits that the mother relied on the reports of Dr J in initially resisting overnight time until the eldest child started school. It was only after her own psychologist, Mr. W, gave evidence that he had advised her that the children should be spending overnight time with the father that she changed her proposal. Mr W was called by the mother only after objection taken on behalf of the father to a report of Mr W annexed to the mother’s affidavit.
The mother proposed unsuccessfully that she have sole parental responsibility. The father submits that given the mother’s position in both opening and closing submissions and the Independent Children’s Lawyer’s position, at least at the commencement of the case and the reliance by both the mother and the Independent Children’s Lawyer on Dr J’s report, the father had no alternative but to pursue his case.
The case was not, in the end, particularly complex. Its resolution was made more complicated by Dr J’s unusual position that the children should not have overnight time with the father until commencement of school by the older child. This is either not conduct attributable to either party or conduct for which they are equally responsible because Dr J was an agreed expert.
Some aspects of the length of time are attributable to the father’s pursuit of equal time in that matters were the subject of cross examination on behalf of the father which may have been relevant for equal time but were little relevant to when and to what extent there should be overnight time. This plus the time spent on the adjournment application means that the father has a greater responsibility for the excessive time than the mother.
The father submits that the mother’s conduct after separation is relevant. The father did not see the children until after the May orders and did not know where they were. He was not served prior to the first court date in February 2008. The father submits that the mother knew where he was and could have ensured that he was served and could have had him made aware of the whereabouts of the children. The father submits this is conduct of the mother in relation to the proceedings and should be taken into account. While it is conduct in relation to the proceedings it could not have increased the father’s costs and possibly increased the mother’s by the costs of an extra interim hearing in that she was represented in February 2008 and May 2008. If the father had been served prior to the February 2008 hearing the May hearing may not have been necessary.
Section 117(2A)(d) is whether the proceedings were necessitated by the failure of either party to comply with previous orders. This did not happen.
Section 117(2A)(e) is whether any party to the proceedings has been wholly unsuccessful. The mother submits that the father was wholly unsuccessful in his application for equal time. That is so but it does not mean that he was wholly unsuccessful. He was successful in his application for equal shared responsibility and for overnight time beyond the mother’s proposal. The mother was not wholly unsuccessful. The father did not achieve his primary aim of equal time.
Section 117(2A)(f) is whether any party has made an offer in writing. Neither party made an offer in writing.
Section 117(2A)(g) is other matters the court considers relevant. No other matters are relevant.
The majority of the High Court (Stephen, Mason, Aiken and Wilson JJ in Penfold and Penfold (1980) 144 C.L.R. 311 said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs. (at p315)
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".
In Kelly and Kelly (No2) (1981) FLC 91-108 the Full Court said at 76,810 that the great disparity in the financial circumstance of the parties “might well have justified an order for costs in the wife’s favour whatever the conduct of the husband in the proceedings”.
In Carmel-Fevia & Fevia (2009) FamCA 9 Cronin J said that the principle in Kelly (No2) has to be cautiously considered because not every case involving a disparity in financial circumstances justified an order for costs. His Honour ordered the husband to pay half the wife’s costs. He took into account more than financial factors but particularly the economic disparity of the parties.
The husband’s conduct in applying for an interim order and persisting with an equal time application was more significant than the mother’s proposal for sole parental responsibility and less time for the children with their father than ordered. The order for equal shared responsibility was not made because of application of the presumption in s.65DA.

I found that the presumption had been rebutted because there were reasonable grounds to believe there had been family violence. However I considered that notwithstanding this finding it was in the best interests of the child that there be equal shared parental responsibility. To the extent that the presumption was rebutted the mother was successful on this issue.
I consider that these matters justify an order for costs. The financial disparity is particularly significant.
I have already said that the costs of the adjournments caused by the father appealing the interim orders should be born by the father. I do not intend to make a separate order for these costs but rather include them in the overall consideration of what is appropriate and do away with the difficulty of identifying what costs belong to the adjournment.
Taking all factors in account I consider that the father should pay 70% of the mother’s costs.
Order 21.2 of the Federal Magistrates Court Rules 2001 (Cth) provides for the manner of calculating costs. Sub paragraph (c) provides that the Court may refer the costs for taxation under Chapter 19 of the Family Law Rules 2004 (Cth). Given the complications brought about by the length of time the hearing took and the adjournments I am not confident the event based scale in schedule 1 of the Federal Magistrates Court Rules 2004 (Cth) would produce an accurate amount. For instance the schedule in Stage 5: Preparation for final hearing allows an additional amount for preparation for each day’s hearing. That may not be appropriate in this case. The discretions available under the Family Court of Australia costs rules can take this and any other relevant matters into account.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Phipps FM

Date: 29 October 2010