Theodore and Theodore (No. 2)
[2018] FamCA 292
•4 May 2018
FAMILY COURT OF AUSTRALIA
| THEODORE & THEODORE (NO. 2) | [2018] FamCA 292 |
| FAMILY LAW – COSTS – Where application for costs of father’s further interim parenting proceedings – Where father totally unsuccessful – Where application precipitate in time – Consideration of applicable principles – Where general principle displaced – Where father ordered to pay costs as agreed or assessed. |
| Family Law Act 1975 (Cth) ss 117 Family Law Rules 2004 (Cth) rr 19.08, 19.18, Sch 3 |
| Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 Collins and Collins (1985) FLC 91-603 Greedy and Greedy (1982) FLC 91-250 Hawkins & Roe [2012] FamCAFC 77 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Luadaka v Luadaka (1998) FLC 92-830 Parke & the Estate of the Late A Parke (2016) FLC 93-748 Penfold v Penfold (1980) 144 CLR 311 Theodore & Theodore [2017] FamCA 588 Theodore & Theodore [2018] FamCA 188 |
| APPLICANT: | Mr Theodore |
| RESPONDENT: | Dr Theodore |
| INDEPENDENT CHILDREN’S LAWYER: | Ark Law Lawyers |
| FILE NUMBER: | PAC | 5789 | of | 2014 |
| DATE DELIVERED: | 4 May 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | By way of written submissions last received on 23 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Rowlandson & Co Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms De Vere |
| SOLICITOR FOR THE RESPONDENT: | Withstand Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rutkowska of Ark Law Lawyers |
Orders
That the husband pay the wife’s costs of and incidental to the further application for interim parenting orders and of this costs application such costs as agreed within one month from this date or otherwise as assessed.
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 Theodore & Theodore (No. 2) 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 5789 of 2014
| Mr Theodore |
Applicant
And
| Dr Theodore |
Respondent
REASONS FOR JUDGMENT
The application for determination is the mother’s application for costs as to the father’s further interim parenting proceedings subsequent to the dismissal of the father’s further application.
Orders as to interim parenting were made on 11 August 2017 following an interim hearing: Theodore & Theodore [2017] FamCA 588. Those orders provided:
(1)That all previous parenting orders are suspended.
(2)That the mother have sole parental responsibility for the children B born … 2009 and D born … 2010.
(3)That the children live with the mother.
(4)That the children spend time with the father as agreed between the father and mother in writing such writing to include SMS or email communication and in default of agreement:
(a)the children spend time with the father each Saturday for a period of not less than two hours between the hours of 10.00 am and 4.00 pm;
(b)that such time to be supervised by W Group or Z Group or otherwise supervised by the paternal grandfather or a person or entity agreed to in writing by the mother and father such writing to include SMS and email communication.
(5)That, otherwise, the father be restrained from approaching or, otherwise, contacting the children unless agreed to by the mother and father such writing to include SMS and email communication.
(6)That the mother and father be restrained from administering physical chastisement or discipline to the children.
These reasons assume familiarity with the reasons for judgment delivered on 11 August 2017.
Following the father’s further application for interim parenting orders reasons for judgment were delivered and orders made on 26 March 2018: Theodore & Theodore [2018] FamCA 188. Orders made 26 March 2018 provided:
(1)That the father’s Application in a Case filed 23 November 2017 as amended 16 February 2018 be dismissed.
(2)That any application for costs be made by written submissions filed and served within 14 days from this date with any submissions in response to be filed and served within a further 14 days and that thereafter judgment as to costs be reserved to chambers.
BY CONSENT AND PENDING FURTHER ORDER, IT IS ORDERED THAT
(3)The mother be and is hereby restrained from bringing the children or either of them into the presence of or leaving the children or either of them in the care of Mr O.
The mother now makes application for an order that the father pay her costs of and incidental to the father’s further interim parenting application.
Costs
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relevantly, in these proceedings, relate to the following:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party has legal aid and the terms of any grant of aid;
(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 answers, 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.
In Collins and Collins (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.
In Greedy and Greedy (1982) FLC 91-250 and Luadaka v Luadaka (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
Later the Full Court in Hawkins & Roe [2012] FamCAFC 77 said:
17.With respect to the application of the section, in Penfold and Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:
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".
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
(footnotes omitted)
18.The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) which state:
Method of calculation of costs
(1)The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162, the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the court said at [10] that the court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.
Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748:
130.If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
The mother’s contention in substance asserts that the father’s further application was precipitate and the father was wholly unsuccessful.
Following the initial interim orders a Child and Parents Issues Assessment issued on 3 October 2017 recommending a Single Expert Report be obtained particularly as to the father’s mental health issues.
On 7 November 2017 the parties’ agreement as to the appointment of Dr Q as single expert was noted. Dr Q was later appointed by consent orders on 12 December 2017.
Yet on 23 November 2017 the father commenced further interim parenting proceedings. On 16 January 2018, before the Registrar, the father insisted that his application proceed. The father’s further application was heard on 19 February 2018.
The father’s application was dismissed. Reasons for judgment, inter alia, include:
48.The father’s further interim application so soon after the earlier determination raises clear issues as to whether there has been any significant change in the children’s circumstances such as to warrant a further consideration of their parenting arrangements particularly as to their time with the father.
49.In the earlier Reasons for judgment consideration was given as to the applicable law relating to interim determinations as to parenting and the “statutory pathway” of considerations necessarily to be taken into account. Notwithstanding the father’s further application, nothing has changed
50.The current evidence of the father is reflective of the children’s circumstances as provided for in the interim orders working well in terms of their time with him, albeit supervised time.
51.Otherwise, he continues to engage as before with his mental health professionals, his psychiatrist and psychologist and remains on a cocktail of drugs related to his mental health issues and pain relief for a previous injury.
52.Notwithstanding the views of his mental health professionals as to the father’s suitability to have unsupervised and/or overnight time with the children, those professionals have had no engagement with the children in any therapeutic sense. As such, their views are of little significance.
And:
29.Dr L opines “I consider him to be care (sic) for his children on an unsupervised basis and he does not pose any risk to the children”. Yet in concluding her report she says:
…further and in my experience an individual’s BPAD becomes unstable, especially if combined by substance use and if that occurs an individual can present with aggression, extreme irritability and suicidality… In my opinion there is no cause for ongoing risk concerns for the children’s emotional and physical well-being, as long as (the father) continues with his current medication regime, regular psychiatric review, and abstinence from substances.
Otherwise, there is no evidence as to the parties’ present financial circumstances.
The father was wholly unsuccessful for reasons given. His asserted “anxiety” to further his relationship with the children was overshadowed by the issue of risk posed by his continuing mental health issues.
The mother seeks costs assessed in the sum of $19,400.00, such sum including counsel’s fees on interim hearing. It is a significant sum sought as to an interim hearing. It is difficult to determine what costs are solicitor/client or party/party.
There is no application for indemnity costs which would fail in any event by reason of non-compliance with Rule 19.08(3) requiring the wife to provide a copy of any costs agreement in the context of any application for indemnity costs.
In the circumstances of this matter, it is appropriate that the general rule as to costs be displaced and that there be an order for the father to pay the mother’s costs of the further interim application.
Noting that it was appropriate for counsel to be briefed and having regard to the sum sought, it is appropriate that costs be the subject of agreement or assessment.
Orders will be made accordingly.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 4 May 2018.
Associate:
Date: 4 May 2018
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