Tripp and Tripp (No 2)
[2011] FamCA 967
FAMILY COURT OF AUSTRALIA
| TRIPP & TRIPP (NO 2) | [2011] FamCA 967 |
| FAMILY LAW – COSTS – Between parties – Application by the father for the mother to pay his costs incurred in parenting proceedings |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Tripp |
| RESPONDENT: | Ms Tripp |
| FILE NUMBER: | SYC | 7895 | of | 2007 |
| DATE DELIVERED: | 20 December 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | Dealt with by written submissions |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Broun Abrahams Burreket |
| SOLICITORS FOR THE RESPONDENT: | Paltos Briggs |
Orders
The mother is to forthwith pay to the father the sum of sixty-five thousand dollars ($65,000.00) toward his costs of these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Tripp & Tripp is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7895 of 2007
| Mr Tripp |
Applicant
And
| Ms Tripp |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings before the Court are proceedings for an order for the payment by the mother of the costs of the father incurred in parenting proceedings against the mother which concluded by judgment delivered on 28 July 2011 after 12 days of hearing. That judgment should be read in conjunction with this judgment.
As a result of that judgment the two children of the parties who had formerly lived with the mother were thereafter to live with the father in accordance with his application.
The proceedings for parenting orders were commenced by application filed by the father in November 2007 following the mother unilaterally refusing to permit the children to see their father.
The orders sought by the father were opposed by the mother who filed in December 2007 a Notice of Child Abuse inferring sexual misconduct by the father towards the younger of the two children B.
The mother also asserted that in December 2007 T became increasingly distressed and made comments about jumping on a snake so it would kill her. The mother took T to the mental health department at Town 1 Hospital.
In February 2008, Orders were made providing for the father to have supervised time with the children for four hours each Sunday and a report was ordered from a Dr M who in May 2008 reported that the children were not at risk of sexual abuse.
In June 2008, an application was filed by the father seeking unsupervised time with the children and orders were made by consent in due course for unsupervised periods of time.
The parties had been involved in a dispute as to their property and that was resolved by consent orders in December 2008.
In March 2009, the mother again raised issues of sexual abuse and as a result the children spent no time with the father for a period of ten weeks.
The father recommenced spending time with the children on 24 May 2009, with the time supervised by the father’s sister-in-law on most Sundays, usually between 9.30 am and 3.30 pm, and on Wednesdays, usually from after school to 7.30 pm.
A second report of Dr M in August 2009 found no evidence of sexual abuse.
The first day of the Less Adversarial Trial was listed before the Court on
30 October 2009 when the father was informed that there had been a further allegation made by the mother of sexual abuse by the father’s mother of the child B.
The allegation was denied by the father’s mother and the authorities responsible for the welfare of children in the state of New South Wales did not pursue the allegation.
In November 2009, the father sought orders that the children live with him and spend such time with the mother as was recommended by Dr M.
In December 2009, orders were made for the father to have time with the children which was to be supervised and the matter was listed for final hearing of four days commencing 22 March 2010.
In March 2010 the mother produced tapes of an interrogation of the child B by her which seemed to exculpate the father of any suggested sexual abuse but it was suggested inculpated the father’s mother in such abuse.
The tapes of the interrogations were provided to Dr M and she produced a further report and again found there was no evidence that either the father or his mother had perpetrated any abuse upon the child.
The Court found in the proceedings there had been no abuse of the children by their father nor by their paternal grandmother and by reason of the mother’s conduct with the children and her continuing parenting inadequacies and for other reasons made orders that the children reside with the father and, after a period, spend some time with the mother.
In support of his application for costs the father deposes that his taxable income for the year ended 30 June 2011 was about $27,000.
He estimates his current weekly income at $790.54, portion of which is comprised of Centrelink payments and portion derived from employment and dividends. Some minimal child support is paid by the mother.
He deposes as to assets comprising modest bank account balances and a superannuation entitlement and a small parcel of shares totalling in all $182,030. The superannuation portion of that sum is $108,000. The following represents his alleged assets and liabilities:
| Assets | ($) |
| · Commonwealth Bank Account No. … | 5,667 |
| · Commonwealth Bank Account No. … | 708 |
| · Superannuation entitlements held by Commonwealth Financial Services | 108,000 |
| · 425 IAG shares | 1,318 |
| Total Assets | $115,693 |
| Liabilities | |
| · Outstanding legal fees with Broun Abrahams Burreket | 20,222.64 |
| · Outstanding legal fees with Denise Hausman | 43,560 |
| · CBA Visa Credit Card | 751 |
| · LJ Hooker Erina lease fee | 1,740 |
| Total Liabilities | $66,337 |
| Nett Assets | $74,030 |
| Nett Asset Pool (inclusive of Superannuation) | $182,030 |
The father’s mother, against whom the assertion of abuse had been made, died while judgment was reserved.
The father is a beneficiary with his two siblings in the estate of his late mother and estimates his share of the estate to be approximately $225,000.
He has had the benefit of an agreement to allow his occupancy of his late mother’s property but it has been on condition that he pays market rent for the property (said to be $450 per week) and offsets his entitlement to a share of the income of the property against his obligation to pay rent.
The father deposes that the mother in the financial year ending 30 June 2009 disclosed income of $78,734 and in 2010 an annual income of $55,566.
Since conclusion of the proceedings, the mother has asserted that her income is now reduced to $27,000 per annum.
The father points to assets said to be owned by the mother and indicates he is not aware of the mother’s liabilities:
| Assets |
| · EE Street, Suburb FF |
| · GG Pty Ltd |
| · Motor vehicle |
He says that he is not in receipt of legal aid nor in so far as he is aware is the mother. The mother retained Senior Counsel for part of the proceedings.
The mother on the other hand confirms that she resides in the property referred to by the father and she estimates its value at $520,000 but says that it is encumbered to the extent of $338,697.
She deposes that she has an average weekly income of $2,008 but claims personal expenditure of $3,191 per week.
She claims liabilities of $1,012,317 against assets of $536,752 and superannuation entitlements of $128,545.
The Court notes that in her claim for liabilities she includes a liability for outstanding legal costs of $7,400; a claim for a Commonwealth Bank MasterCard used for business expenses in part of $19,400; a significant number of personal loans from persons, some of whom appear to be family members, and some of whom appear to be not creditors of the mother but rather creditors of the company GG Pty Limited, a company owned by the mother. The amounts said to be owed by GG Pty Ltd is $148,310.
The father asserts that the mother’s conduct of the proceedings has increased costs. The first day of the hearing was 22 March 2010 and on that day the Court was informed that the mother required that the father’s time spent with the children continue to be supervised.
Four days after the commencement of the hearing counsel for the mother said that the mother no longer asserted that the father posed an unacceptable risk to the children.
The mother’s position at the commencement of the hearing was not justified, inter alia, having regard to the three reports of Dr M, asserting there had been no sexual abuse of the children, and the support for those conclusions contained in a letter from the mother’s psychologist, Dr L, dated
17 December 2009, and the tape recording by the child in which the child asserted that the father was not doing anything wrong and had not done anything to her.
It is notable that the report of Dr L was not made available to the father or his solicitor by the mother or her solicitor and so only became available when her notes were produced for inspection in contemplation of her cross-examination.
The mother provided the Court with notice of the final orders she was seeking following the consideration of the third report by Dr M and for the entire period that the father was being cross-examined maintained that position.
The father complains with justification that his cross-examination was repetitive and burdensome and in parts entirely unhelpful.
The hearing was prolonged by virtue of the necessity to listen to tapes of interrogation of which the Court found was not justified.
This was a mother for whom allegations of sexual abuse and inferences of sexual abuse by either the father or his mother increased the Family Court proceeding’s costs significantly and were not justified on the professional evidence available to her on any realistic basis. They were created from a hypothesis she formed, promoted, solidified and coached into the child B in a process described in the judgment. They added days to the hearing of the case.
The father throughout the ordeal of this case, and its unjustified conduct by the mother, remained calm and purposeful. He was indeed a model litigant.
The mother failed to take a considered view of the professional evidence and in a timely manner to disclose material which militated against the finding she originally sought the Court to come to.
The father has incurred legal costs in the sum of $306,971 including GST and he has incurred costs with an independent expert of some $9,955.
The father has an expectation in his mother’s estate which will be shortly realised but otherwise no assets of any significance and it is, in the circumstances of the unreasonable conduct of the mother, and other the matters required to be taken into account in relation to the exercise of the Court’s discretion appropriate and just that an order for costs should be made.
The financial position of the mother is not good although the extent of her personal liabilities is to some extent uncertain. The financial position of the parties is however but one out of a number of matters required to be considered and taken into account.
Section 117 considerations
The Court has a broad discretion as to the orders that it makes for costs and that discretion is set out in section 117(2) of the Family Law Act 1975 (“the Act”). In the consideration of the exercise of that discretion I am obliged to consider the matters set out in section 117(2A) of the Act. Those matters are set out in the following sub sections of that section namely:
(a) the financial circumstances of each of the parties to the proceedings
The financial circumstances of each of the parties have been referred to above. The father’s financial position is modest and the mother’s financial position is also modest, however the extent of the mother’s personal liabilities is to some extent uncertain. There is no current valuation of her interests in GG Pty Limited.
(b) whether any party to the proceedings is in receipt of legal aid and, if so, the terms of the grant of that assistance to that party
There is no evidence that either party is in receipt of legal 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 answer questions, admissions of facts, production of documents and similar matters
The mother’s allegations of sexual abuse and her inference of sexual abuse by either the father or the paternal grandmother and her maintenance of them against the evidence increased the father’s costs significantly and were not justified.
The father’s cross-examination was repetitive and burdensome.
The hearing was prolonged by the necessity to listen to tapes of interrogation by the mother of the child B, which the Court found was not justified.
The mother failed to disclose material in a timely manner, in particular the letter of her psychologist Dr L.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
Not applicable.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings
The mother 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
There is no evidence of any relevant offer.
Orders proposed to be made
The Court, for the reasons adumbrated in this judgment, proposes to fix a sum which the mother will pay to the father. It will not be sufficient to recompense him for his unnecessarily incurred costs but it will make a contribution towards them and the amount the Court proposes to fix is $65,000.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on
20 December 2011.
Associate:
Date: 20 December 2011
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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