Tormey & Anor & Tormey & Anor

[2015] FamCA 775

FAMILY COURT OF AUSTRALIA

TORMEY AND ANOR & TORMEY & ANOR [2015] FamCA 775

FAMILY LAW – COSTS - Between parties

Family Law Act 1975 (Cth) s 117

Penfold v Penfold (1980) 144 CLR 311
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

FIRST APPLICANT: Mr Tormey

SECOND APPLICANT: Ms Tormey

FIRST RESPONDENT: Mr B Tormey

SECOND RESPONDENT: Ms C Tormey

FILE NUMBER: PAC 851 of 2013

DATE DELIVERED: 16 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 28 August 2015

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: In person

SOLICTOR FOR THE 2ND APPLICANT: In person

SOLICITOR FOR THE 1ST RESPONDENT: No appearance

SOLICITOR FOR THE 2ND RESPONDENT: Mark MacDiarmid Family Law Specialist

Orders

1. The Application in a Case filed by the Applicant parents on 11 May 2015 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 851  of 2013

Mr Tormey and Ms Tormey

Applicants

And

Mr B Tormey and Ms C Tormey

Respondents

REASONS FOR JUDGMENT

Introduction

1. The parents of two young girls are respondents to parenting proceedings brought by the children’s paternal grandparents.  The proceedings have since been discontinued and the parents seek orders for costs.

2. The applicants for parenting orders (respondents to this application for costs) oppose the application and say that there are no circumstances that justify the court departing from the usual rule that each party shall bear his or her own costs.

3. The question for me to determine is whether there are such circumstances that justify the departure from the usual rule.

Background

1. The applicants for costs are the parents of the two young girls, D, who is eight and E who is seven.

2. The children’s parents began a relationship in March 2005 and initially lived with the paternal grandparents for a few months. The parents were married in 2005.

3. From 2007 to 2012, the parents lived for several extended periods with the paternal grandparents, including at times when the two children were infants. The paternal grandparents assumed a significant role in the lives of their granddaughters, D and E.

4. There was a significant incident in July 2012. As I understand it, the paternal grandparents were invited to assist in a personal difficulty between the parents. As a result of actions taken by the paternal grandparents, the parents have not allowed the children to see their grandparents since that date. As I understand the applicant grandparents’ case, they did not understand why the parents had not allowed them to see their granddaughters. It is the parents’ case that the paternal grandparents pose a significant risk of harm to their children.

5. In March 2013, the paternal grandparents commenced proceedings and sought orders that they spend time with their granddaughters.

Family Consultant’s Report

1. Prior to proceeding with any orders including interim orders a Family Report was ordered. 

2. The report writer, Dr F noted a number of unusual features about the family constellation including her opinion that there is a significant level of enmeshment between the grandparents and their children who possibly find it difficult to challenge their parents’ control. She also noted the ambivalence the father seems to have experienced in drawing boundaries about the relationship with his parents which vacillated from estrangement for two years to periods where the parents and the children lived in the home of the paternal grandparents.

3. The family consultant additionally noted that there had probably been periods of tension in the parents’ relationship and that the father very possibly had aligned himself with his parents who appeared to have given him advice and support that might have been construed by the mother as rejection of her.

4. The circumstances of the evening of 21 July 2012 was described by Dr F as a crisis point for the parties. Dr F opines that as the events of the night evolved the parents seem to have chosen to minimise their own difficulties while highlighting the interference of the grandparents to explain the ultimate outcome. She wrote “[the parents] indicate that their relationship has improved and is now solid. Having a common enemy in the form of the [grandparents] may be in part contributing to this”. The family report writer summarised the way in which the acrimony between the parties arising from the July 2012 incident has reached a point where it is affecting other areas of the parties’ lives including their workplace and social connections and possibly an application by the father to make a case to secure Victims Compensation.

5. Dr F opined that there is virtually no willingness on the part of the parents to facilitate the children’s relationship with their paternal grandparents, especially the grandfather and they perceive their children being at risk of the grandparents if they were to spend time with them. She did, however, feel that there was a “small window of possibility” that the parents may be amenable to the paternal grandmother having a relationship with the children.

6. Overall, the family consultant noted a number of risk factors if orders were made for the children to spend unsupervised time with grandparents. She referred to the likely strong resistance on behalf of the parents which would place the children in an untenable position which also could lead to further allegations by the parents about the grandparents and for more litigation or attempts to damage each other’s reputation. Dr F opined that this could even mean that the children may become involved in making allegations about their grandparents.

7. The doctor also thought that there was very little to support the case that the children were at risk while in the care of their grandparents. However, given the children’s relationship with their own parents it would be untenable for them to have a relationship with their grandparents and not feel disloyalty to their parents. For these reasons she recommended that no orders be made for the children to spend time with their grandparents but that the parents and grandparents work on improving their relationship.

8. After the Family Report was released the grandmother amended the application. The only orders she sought were that she alone could spend time with the children as agreed between herself and the parents and at such other times as determined by the Court. She also sought orders permitting the children to communicate with the parents when in the grandparents care and with the grandparents at other times, non-denigration orders and orders prohibiting the parties discussing the proceedings with the children.

9. The paternal grandmother filed an Application in the Case in December 2014 seeking the same orders sought in her Amended Initiating Application on an interim basis.  She also sought orders that she and the parents engage in family therapy with a therapist nominated by the Independent Children’s Lawyers. The parents were, as I understand it, opposed to this course of action. As the parents’ willingness to participate in family therapy was essential, the paternal grandparents subsequently decided to discontinue the proceedings and ultimately a Notice of Discontinuance was filed.

10. The parents’ Application for costs in the proceedings was made against this background.

The law to be applied & Discussion

1. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs.  That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the Court may make an order for costs if there are circumstances that it is of the opinion to justify it in doing so.

2. The High Court in the matter of Penfold v Penfold[1] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [1] (1980) 144 CLR 311

3. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.The matters relevant in this case are considered below. 

   The financial position of each of the parties to the proceedings

4. This is an important consideration for the parents’ application for costs. According to their affidavit and financial statement they are in a parlous financial position, with their total personal expenditure being over double their total average weekly income. They are in receipt of a means-tested Centrelink pension and owe several thousand dollars in fees in relation to the proceedings. The parents now have another child as well as D and E to support.

5. The grandparents work full-time as teachers, are in a comfortable financial position. They would be in a position to pay costs if they were awarded.

   The conduct of the parties to the proceedings in relation to the proceedings

6. The parents appear to suggest that the proceedings were unreasonably commenced by the grandparents and at all times maintain that they have had good reason to resist an order that the children spend time with their grandparents.

7. In my view, there is nothing to suggest that the grandparents acted in any inappropriate manner in either commencing the proceedings or in their conduct of them.

8. There is no dispute between the parties that the children had enjoyed a close relationship with their grandparents who had significant involvement in their care. The observations of the family consultant confirmed that at least so far as D was concerned, there was considerable warmth in the interaction between her and her grandmother even after a period of 18 months having not seen one another. The grandparents did not press the application for interim orders until the Family Report was ordered and changed their position in accordance with the recommendations of the family consultant. The grandparents ultimately discontinued the proceedings rather than allowing them to continue to a final hearing for determination. In my view it was sensitive and appropriate for the grandparents to discontinue their application for time with the children in light of the circumstances.

   Whether any party to the proceedings has been wholly unsuccessful in the proceedings

9. Although the grandparents did not succeed in having orders made in accordance with their original or amended proposal, in my view it could not be said that they were wholly unsuccessful in that the application was not tested on its merits. Rather, when it became clear that even attempting to rekindle the relationship through family therapy would not be successful the grandparents chose to discontinue the proceedings.

Discussion

1. Although there is nothing to prevent any one factor being the sole determinant for an order for costs,[2] in my view, the relative financial position of the parties should not be the sole determinant in this matter. It is, in my view, a tragic case where children who had previously enjoyed a good relationship with their grandparents had that relationship terminated as a result of a dispute between their parents and grandparents. In addition to resolving the factual disputes between the parents, the expert opinion of the family consultant was that due to the position the children were placed in, there would be no prospect of any relationship with the grandparents without the assistance of family therapy between the parents and grandparents. The parents did not consent to participating in this therapy which was essential to it occurring. As indicated, in my view, in these circumstances the grandparents took a sensitive and sensible decision to discontinue these proceedings.

   [2] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

2. In all of the circumstances, in my view, a deviation from the general rule in relation to costs is not warranted.  Accordingly, I dismiss the parents’ application in relation to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 16 September 2015.

Associate: 

Date:  16 September 2015