Tranten and Croft (No. 2)

[2007] FamCA 1338

FAMILY COURT OF AUSTRALIA

TRANTEN & CROFT (NO. 2) [2007] FamCA 1338

FAMILY LAW – COSTS – Mother seeks a further order against the father in relation to costs incurred in child support proceedings which she owes to Victoria Legal Aid – Although the extent to which previous costs orders cover the current amount owing to Victoria Legal Aid is unclear, it is clear that the mother owes at least $10,000 on top of that amount – Both parties are in difficult financial circumstances and while neither has been wholly unsuccessful, it is the mother who has been more successful in obtaining a more favourable order than she initially received from the Child Support Agency – While it may be an exercise in futility given the father’s bankruptcy, it is ordered that the father pay an additional $7,000 towards the mother’s costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Tranten

RESPONDENT: Mr Croft

FILE NUMBER: MLF 5277 of 2003

DATE DELIVERED: 27 September 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Kay J

HEARING DATE: 27 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

ORDERS

1. The respondent pay a further $7,000 towards the applicant’s costs incurred up to 20 April 2005, over and above the amount ordered on 10 July 2007.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5277 of 2003

MS TRANTEN  

Applicant

And

MR CROFT  

Respondent

REASONS FOR JUDGMENT

1. On 10 July 2007, I made orders in relation to a departure application brought by the applicant mother relating to periods of child support payable from July 2001 through to the time of the hearing and beyond.  The proceedings had been pending before the court from September 2003.  They were commenced in the Federal Magistrates Court and were then transferred up to this court.  Along the way there was at least one costs order made in relation to costs thrown away on 21 April 2004 by Bryant CFM, as she then was, in the sum of $1,760. 

2. At the hearing of the proceedings before me, I made an order for costs that related to the actual hearing before me in sum of $1,000 but declined at that stage to make any order for any other costs that the applicant had incurred, indicating that I needed to hear from the Victorian Legal Aid Commission as to their attitude.  It seemed they had funded the mother at least in part of the proceedings. 

3. The mother has renewed her application before me for a costs order in relation to the proceedings beyond the order I have already made.  In support of that, she produced to me a number of documents.  Some are inconsistent with the others but basically I accept that Victoria Legal Aid hold her responsible for the sum of $11,679.31 and in order to secure the payment of those moneys, they have lodged a caveat over her home.  Whether she will ever be required to actually repay the moneys short of selling the home is a different issue. 

4. The mother already holds a costs order in relation to the proceedings of $1,760.  The balance yet unordered is $9,919.  That is calculated by Victoria Legal Aid standard charges at 80 per cent of scale fee.  That figure, however, is a little bit misleading because included in the $11,679 there are doubtless counsel’s fees. 

5. The matter is confusing because those invoices provided add up to $14,166 which is not consistent with the $11,679.31, but they include counsel’s fees of two lots of $1,500 and another lot of $2,550, so $5,550 of the $11,679 is attributable to counsel’s fees and it is not quite apparent the scale upon which counsel’s fees were allowed, given that there was no counsel in the trial before me and counsel’s fees in relation to trials taking not more than one day max out at $1,565 at scale.  Whether, on a party-party basis, those costs would be recoverable in the sum charged, is not abundantly clear.

6. However, given, in round terms, that the mother is likely to have to pay Victoria Legal Aid another $10,000 beyond the sum she has already incurred, the issue that arises for me to determine is whether it is appropriate to make an order that the father contribute any ,and if so what, portion of that money. 

7. Section 117 of the Family Law Act1975 (Cth) (“the Act”) commences with a general statement that in family law matters, each party bears their own costs unless the court otherwise orders.

8. The effect of s 117(1) is to negate the general common law rule that costs follow the event. That is left to the general discretion of the court, and in considering if it going to make any order, the court has to give consideration to the matters under s 117(2A), none of which have any particular priority over the other, but they allow a broad range of matters to be considered.

9. The matter is complicated because the financial circumstances of the parties, as best known to me – and it should be noted that these proceedings are conducted on virtually an ex parte basis because there has been no involvement of the father in the proceedings for a long time and he does not have a current address for service, and I doubt that he even knows the proceedings are on before the Court today.  The mother’s financial circumstances are strained.  The father’s financial circumstances are such that he has recently declared himself bankrupt.  So there is a little bit of purposelessness to these proceedings in that any order I make which relates to costs that were incurred well before the bankruptcy presumably will be swallowed up in the bankruptcy and will not survive it.

10. The mother’s financial circumstances, as I have indicated, are difficult.  The father’s financial circumstances are that his estate has been sequestrated.  I found in the judgment of 10 July 2007 that he had an earning capacity.  I also found that he had a history of some psychiatric difficulties.  I cannot say much more about the financial circumstances of the parties. 

11. I have indicated the matters relating to Victoria Legal Aid. 

12. The mother has set out an extensive affidavit indicating her criticism of the father’s lack of cooperation in the proceedings and the extent to which the proceedings were elongated as a result of adjournments that were given along the way because of, the mother says, a lack of appropriate disclosure by the father. 

13. The file runs into 63 documents and I do not propose to go through them all and examine each and every event that the mother complains of as having occurred. 

14. There is nothing in the material that would indicate that the proceedings were necessitated by the failure of a party to comply with a previous order of the court, nor could it be said that either party has been wholly unsuccessful in the proceedings.  The mother did not get everything she asked for in her application.  The father certainly did not get anything he wanted in his opposition to her application. 

15. The mother seeks to rely upon an offer made late in the proceedings by her counsel to settle the application.  I do not have a copy of the offer.  I have the mother’s sworn testimony as to what the offer was, as secondary evidence and probably not admissible, but even overcoming that hurdle, an offer was made to settle the matter upon the mother receiving $16,000 in a cash payment from the husband’s retirement superannuation and that child support income be fixed at $50,000 per annum for the periods from 2005 for two years.  The order the mother achieved did not see her with any immediate cash and did not see any adjustment to the husband’s child support income as sought, other than covering the same period. 

16. For eight months in 2005, I calculated the father’s child support income to be $55,000, and for the period after 1 January 2007 to be $67,500.  It is not immediately clear that there is a substantive difference between that which was offered and that which was achieved, but again assuming that there is some difference in favour of the mother, it was an offer that was rejected by the father, and his opposition at the time in his formal application before the Court was to dismiss the applicant’s application to reassess the child support liability.

17. As best I can weigh up all of the various considerations, one against the other, it seems that the mother, who has had to struggle to raise the children with limited assistance from the father, has been put to the expense of obtaining orders more favourable than she had obtained by other methods through the child support system.  As such, she has been more successful than the father in his opposition to her having anything.  The financial circumstances of both parties appear to be extremely strained.  As I have said, there is a bit of futility in this exercise because any order I make will need to be proven in the bankruptcy. 

18. Doing the best I can on weighing up each of the relevant considerations, I propose to order that the respondent pay a further $7,000 towards the applicant’s costs incurred up to 20 April 2005 over and above the amount ordered on 10 July 2007.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate

Date: 27 September 2007