Vale and Vale and Anor (No. 3)

[2018] FamCA 21

FAMILY COURT OF AUSTRALIA

VALE & VALE AND ANOR (NO. 3) [2018] FamCA 21

FAMILY LAW – COSTS – Applicant seeks orders that the Respondent pay his costs of various appearances

Family Law Act 1975 (Cth)

D & D (Costs)(No 2)(2010) FLC 93-435

APPLICANT: Mr Vale

RESPONDENT: Ms Vale

INTERVENOR: Secretary, New South Wales Department Of Family And Community Services

INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

FILE NUMBER: SYC 7455 of 2012

DATE DELIVERED: 22 January 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14, 15, 16 and 17 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Ulbrick, G & D Lawyers

RESPONDENT: In person via video link on 14 November 2016
No appearance on 15, 16 and 17 November 2016

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: Crown Solicitor, New South Wales

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Orders

IT IS ORDERED THAT

1. The Respondent pay the Applicant’s costs of and incidental to the Applications for a Location Order and a Publication Order which were determined on 27 November 2014 and 15 December 2014 respectively and that:

   (a)such costs be paid on a party and party basis in an amount as agreed between the parties or, failing agreement, as assessed on a party and party basis; and

   (b)such costs, in the amount agreed or as assessed, be paid by the Respondent to the Applicant within 30 days of either the agreement between the parties as to quantum of the same or assessment.

2. The Respondent pay the Applicant’s costs thrown away as a result of by the adjournment of the hearing on 4 April 2016, with such costs to be fixed in the amount of $1,701.04 and to be paid within 28 days of the date of this Order.

3. Save as is provided in this Order, all other applications by the Applicant for an order that the Respondent pay his costs are dismissed.

4. In the event that a party seeks an order that another party pay the costs of and incidental to the proceedings heard on 14 – 17 November 2016:

   (a)the party seeking an order for costs shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and

   (b)the party from whom costs are sought shall file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs within a further fourteen (14) days thereafter;  and

   (c)the party seeking costs shall file and serve any brief further written submissions, strictly in reply to the submissions served by the party from whom costs are sought, within seven (7) days of its service,

   and any such application for costs shall be determined in Chambers.

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 Vale & Vale (No. 3) 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 BRISBANE

FILE NUMBER: SYC 7455 of 2012

Mr Vale

Applicant

And

Ms Vale

Respondent

And

Secretary, New South Wales Department of Family and Community Services
Intervenor

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The Applicant seeks an order that the Respondent pay his costs of and incidental to the following appearances: 

   a)27 November 2014: at which Mr Ulbrick appeared by telephone on his behalf and the Court made a Location Order; and

   b)15 December 2014:  at which Mr Ulbrick appeared on his behalf and the Court made a Publication Order; and

   c)10 December 2015 (before the Principal Registrar): at which the Respondent, who appeared in person, sought to vary interim parenting Orders; and

   d)3 March 2016: at which time Orders were made in Chambers by a Registrar after the Respondent filed an Application in a Case that day; and

   e)17 March 2016: being an appearance before the Acting Principal Registrar at which Mr Ulbrick appeared by telephone on his behalf and during which some aspects of the Application in a Case filed 3 March 2016 were disposed of;  and

   f)4 April 2016: being an appearance before the Honourable Justice Forrest at which Mr Ulbrick appeared on his behalf and Respondent failed to appear and the Respondent’s Applications in a Case (filed 17 February 2016,[1] 3 March 2016,[2] 15 March 2016[3] [4] and 31 March 2016[5]) were adjourned for hearing to 29 April 2016 and it was ordered that the costs of the Applicant and the Independent Children’s Lawyer thrown away by the adjournment of the Applications were to be determined on 29 April 2016;[6] and

   g)18 April 2016: being an appearance before the Honourable Justice Forrest at which Mr Ulbrick appeared by telephone on his behalf and leave was granted to the parties to inspect subpoena material produced by the New South Wales Department of Family & Community Services and the J Town Hospital; and

   h)29 April 2016: being an appearance before the Honourable Justice Forrest at which Mr Ulbrick appeared on his behalf and his Honour reserved judgment in respect of the Respondent’s Application for the then Independent Children’s Lawyer to be discharged and adjourned the remaining Applications in a Case (including the costs Application of the Applicant and the Independent Children’s Lawyer) for hearing in a Judicial Duty List on a date to be advised);[7] and

   i)18 July 2016: being an appearance before me at which Mr Ulbrick appeared on his behalf and I listed the matter for final hearing; and

   j)5 August 2016: being a further appearance before me at which Mr Ulbrick appeared by telephone on his behalf and I made parenting orders and otherwise dismissed  the Respondent’s Applications in a Case (filed 17 February 2016, 3 March 2016 and 15 March 2016) and adjourned the Applications of the Applicant and the Independent Children’s Lawyer for costs to the trial; and

   k)in respect of the final hearing which occurred between 14-17 November 2016.

   [1]By which the following orders were sought: the Application is heard urgently as a review of an Order by Principal Registrar Filipello (sic); the Court apply Rule 18.10 of the Family Law Rules 2004 (Cth) to hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing (later repeated in the Respondent’s Application in a Case filed 17 March 2016); the Orders made 11 February 2016 by Principal Registrar Filipello (sic) be declared as invalid; a permanent stay of orders in their totality be issued; that these proceedings be declared ‘exceptional’ pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth) and that the provisions of the Evidence Act 1995 (Cth) be applied (later repeated the Respondent’s Application in a Case filed 17 March 2016); each party is responsible for their own costs.

   [2]By which the following orders were sought: the Application be heard as soon as possible; (later repeated in the Respondent’s Application in a Case filed 17 March 2016 and 31 March 2016); the previous Orders made 11 February 2016 be stayed until the hearing of 4 April 2016; under the equitable principle of estoppel the report by [Mr E] dated 27 November 2016 be set aside or quashed, with any copies to be recalled and destroyed. In the alternate an equitable principle of estopple (sic) be applied as it relates to statements made by [Mr E] evaluating, the children, [B]and [C Vale] that involves a psychological opinion which relies on any expertise in child psychology be struck out of his report; the father be injuncted to supply the report by [Dr H] dated 14 June 2014 to any the schools of the children any treating counsellor, social worker, psychologist, psychiatrist or doctor of the children (sic); the Order that appointed [Ms GI] be disposed of under the equitable principle of estoppel; a full discovery of communications between [Ms GI]; a child representative lawyer be appointed for the children; the Order that appointed Mr E be disposed of under the equitable principle of estoppel; the children be made available as witnesses to the case; leave be granted the reports of Dr F and the Family Reports written for this Court in this matter be made available to [Dr H]; an interim order to allow daily unsupervised, unlimited telephone contact between the mother and the children; an interim order to allow weekly telephone contact and unsupervised monthly visits for two hours each between the maternal grandparents and the children; a declaration that: the Orders made 18 September 2014 by Principal Registrar Filippello are Excluded Child Orders; that the mother did not abscond from the Court’s jurisdiction on 4 July 2014 due to her appearance on 8 August 2014 before Registrar Stoneham and affidavit filed 7 August 2014; [Mr E’s] report of 4 July 2014 does not make any statement that the mother was a flight risk; [Mr E] is not an expert as defined by s 79 of the Evidence Act 1995 (Cth) and does not have formal qualifications in the evaluation of risk as it relates to domestic violence; the case be transferred to the Parramatta Registry.

   [3]          Also showing sealed at 17 March 2016.

   [4]By which the Respondent sought the following orders in addition to those already mentioned: the Respondent be permitted to adduce further evidence/exhibit/s in the Review of a Registrars Decision on 4 April 2016 pursuant to Rule 18.10 of the Family Law Act 1975 (Cth) (sic); [Mr E] be called as a witness and the subpoena associated with the application be accepted to ensure his availability on 4 April 2016.

   [5]By which the Respondent sought the following orders in addition to those already mentioned: the Review of a Registrars Decision hearing listed 4 April 2016 be adjourned until four weeks after completing the Application in a Case dated 3 and 15 March 2016; a date be set regarding the two outstanding Applications in a Case dated 3 and 15 March 2016 to be heard prior to the Review of a Registrars Decision (listed for 4 April 2016); [Ms GI] provide the names and addresses of the current treating medical practitioners and psychologist of the children so material evidence can be subpoenaed; [Ms GI] provide a copy of all correspondence sent to the schools attended by the children, treating doctors and psychologists; [Ms GI] provide a Curriculum Vitae and evidence of her qualifications as it relates to her ability to be practicing law with children as an Independent Children’s Lawyer; an interlocutory injunction be issued under s 114(3) of the Family Law Act 1975 (Cth) prohibiting [Ms GI] from acting further in this matter.

   [6]His Honour also ordered that the Respondent not file any further Applications in a Case prior to 29 April 2016 without first obtaining his leave and granted leave to the Independent Children’s Lawyer to issue a subpoena directed to J Town Hospital, NSW Department of Health for production of medical records pertaining to the Respondent, most particularly with respect to an attendance by her at the hospital on or about Friday, 1 April 2016.

   [7]His Honour also ordered that, on or before 27 May 2016, the Respondent file and serve on the parties a document “orders actually sought by mother (Respondent) on next hearing date”.

Applicable Principles

1. Section 117(1) of the Family Law Act 1975 (Cth) (the Act) provides that each party to proceedings under the Act shall bear his or her own costs. However, if the Court is satisfied there are circumstances which justify it, the Court may make such order as to costs as it considers just.[8]

   [8]          Family Law Act 1975 (Cth), s 117(2).

2. In considering what order, if any, as to costs should be made, the Court must have regard to the matters set out in s 117(2A) of the Act. In arriving at my determinations, I have done so.

3. In overall terms the Applicant’s Applications for costs rely principally on the conduct of the Respondent in relation to the proceedings and that she was wholly unsuccessful in many of the interim Applications she filed.

4. The Applicant is employed. He is a professional. Whilst there is no specific evidence before me about his current financial circumstances, I am comfortable in concluding that they were such as to enable him to support himself and the children between July 2015 and October 2016 and to enable him to support himself and C since October 2016 and to engage legal representation during these proceedings.

5. There is no evidence before me about the Respondent’s current financial circumstances. However, as she consistently asserted that the reason for her non-compliance with the parenting Order which required the first three of her interactions with the children to occur under the supervision of a Family Consultant in Brisbane was because she could not afford to travel here from wherever she was then living in New South Wales, I proceed on the basis that it is more likely than not that the Respondent’s financial circumstances and capacity are limited. Although I note mention in the evidence of her ownership of real property (at least at some stage), it seems more likely than not that her financial circumstances may well be less fortuitous than those of the Applicant.

6. That this is the case is not, however, determinative of an application for an order that she pay the Applicant’s costs. Otherwise, a party could always plead impecuniosity as a means of avoiding a costs order. In fact, impecuniosity of itself is no bar to an order for costs being made where it is otherwise warranted.[9]

   [9]           See, for example, D & D (Costs)(No 2)(2010) FLC 93-435.

7. Neither party was in receipt of Legal Aid.

8. It is obvious that certain aspects of the proceedings were necessitated by the Respondent’s failure to comply with previous Orders of the Court.

The appearances in respect of the Location and Publication Orders

1. After the Respondent attempted to remove the children from Australia on 3 October 2014 without notice to him, the Applicant filed an Application in a Case (supported by an accompanying affidavit) on 17 November 2014. By it he sought a Location Order and a Publication Order.

2. On 25 November 2014, his solicitor filed a Request to Attend by Electronic Communication (telephone) in respect of the upcoming hearing of the Application.

3. The Application was heard by the Principal Registrar on 27 November 2014. The Applicant’s solicitor appeared by telephone on his behalf. The Principal Registrar made a Location Order and adjourned the balance of the Application to the Judicial Duty List on 15 December 2014. On that occasion, the Applicant’s solicitor appeared in person before me and I made a Publication Order as sought.

4. In the circumstances, I am persuaded that the circumstances are such as to justify the making of an Order that the Respondent pay the Applicant’s costs of and incidental to the appearances on 27 November 2014 and 15 December 2014 on which dates Location and Publication Orders were made.

5. In arriving at this conclusion, I emphasise that such Order is not made to punish the Respondent for her conduct but, rather, taking into account the consequences of that deliberate conduct on the costs incurred by the Applicant. As a result of her conduct, he incurred costs which would not otherwise have been incurred.

6. For the reasons outlined above, I consider it just that the Respondent pay the Applicant’s costs of and incidental to the appearances on 27 November 2014 and 15 December 2014.

The Respondent’s 2016 interim Applications

1. The Respondent’s Applications in a Case filed on 17 February 2016, 3 March 2016, 15 March 2016 and 31 March 2016 came before Forrest J on 4 April 2016.

2. Whilst the Applicant and his solicitor were both in attendance in Brisbane that day, the Respondent did not appear.

3. The evidence[10] is that, at about 7.00 am that morning (4 April 2016), the Respondent emailed the Applicant’s solicitor to inform him (and the Independent Children’s Lawyer) that she was not able to attend Court for the hearing that day.

   [10] Affidavit of the Applicant filed 18 April 2016 at [1].

4. Despite this, the typewritten correspondence sent is dated 22 March 2016.[11] It outlines that the Respondent was admitted to the J Town hospital on Friday, 1 April 2016 and advised the Court of this; that she was under doctor’s orders to rest and follow up with further tests and that she was undergoing further tests on 4 April 2016 and was not available to attend at Court because she was seeing medical practitioners that day. I accept the evidence of the Applicant that his solicitor did not receive this correspondence until the morning of 4 April 2016.[12]

   [11]         Affidavit of the Applicant filed 18 April 2016, Annexure “A”, at p. 7.

   [12]         Affidavit of the Applicant filed 18 April 2016 at [1] – [2].

5. The Respondent’s 22 March 2016 correspondence refers to a Medical Certificate (dated 1 April 2016) faxed from the Coolangatta Post Office to the Court at 3.38 pm on 1 April 2016. The Medical Certificate asserts that the Respondent was suffering from a “medical condition” and will be unfit for work for “1/4/16 – 4/4/16”.

6. However, reference to documents from J Town Hospital[13] seems to me to suggest that the Respondent presented to the hospital with “lethargy”, registered at the Emergency Department of the hospital at 2.19 pm on 1 April 2016, was seen in triage at 2.22 pm and was discharged at 3.06 pm on 1 April 2016 (that is, about 20 minutes before the Medical Certificate was faxed to the Court.

   [13]         Exhibit 5.

7. Again, the Respondent’s decision to cease her participation in the trial after the end of its first day prevented any exploration of possible discrepancies associated with her attendance at the hospital and requirement for medical treatment thereafter.

8. In any event, the Applicant’s evidence is that, if the Respondent had advised him on 1 April 2016 that she had been admitted to hospital, he and his solicitor would not have travelled to Brisbane on 4 April 2016 for the hearing of the Application but would have sought to appear by telephone and, if this had been successful, $2,050.63 of the $2,964.63 spent in association with the appearance on 4 April 2016 would have been saved.[14] It is in respect of these costs thrown away that an order against the Respondent is sought.

   [14]         Affidavit of the Applicant filed 18 April 2016 at [6] – [15].

9. The Applicant advances and I accept as more likely than not, that the Respondent knew by late in the day on 24 March 2016 that he and his solicitor would both attend the 4 April 2016 hearing in person.[15]

   [15]         Affidavit of the Applicant filed 18 April 2016, Annexure “F” at 19 and 20/20.

10. I accept that, in circumstances where the Respondent notified the Court on Friday, 1 April 2016 of her intention not to attend at Court on 4 April 2016, she could easily have notified the Applicant of this. I accept that she did not do so and that her conduct in this regard impacted upon the Applicant’s costs. I accept that, if the Applicant had known on 1 April 2016 of the Respondent’s intended non-appearance on 4 April 2016, he would not have incurred the costs associated with the appearance on 4 April 2016 that he did.

11. Having regard to the above, I am persuaded that the circumstances justify the making of an order that the Respondent pay the Applicant’s costs thrown away and that it is just that she is ordered to pay the amount of $1,701.04 (being the combination of the legal costs thrown away in the amount of $1,573.00 and the costs associated with the Applicant’s solicitor’s personal attendance in Brisbane that day), being my quantification of his costs thrown away as a result of her failure to inform him until the morning of 4 April 2016 that she did not intend to appear that day.

1. In arriving at this conclusion, I again emphasise that such Order is not made to punish the Respondent for her conduct but, rather, taking into account the consequences of that deliberate conduct on the costs incurred by the Applicant. As a result of her conduct, he incurred costs which would not otherwise have been incurred.

2. On 4 April 2016, Forrest J adjourned the Respondent’s interim Applications to 29 April 2016, directed that the Application for the discharge of the then Independent Children’s Lawyer would be the first matter determined on that day, and restrained the Respondent from filing any further Applications in a Case before 29 April 2016, without first obtaining his leave.

3. On 29 April 2016, the Respondent appeared on her own behalf before Forrest J in Brisbane to argue her Application for the discharge of the then Independent Children’s Lawyer. His Honour reserved judgment and adjourned the balance of the Respondent’s interim relief to a date to be advised.

4. His Honour also ordered that, until further Order, the names, addresses and any other details identifying any treating medical practitioners, paediatricians, or clinical psychologists upon whom, or schools at which, the children attended be redacted so that such information was not made available to the Respondent or any person acting on her behalf. The Respondent was also ordered to file and serve a document consolidating and particularising the interim relief sought in her outstanding interim Applications.

5. On 6 May 2016, Forrest J dismissed the Respondent’s Application for the discharge of the Independent Children’s Lawyer. Given this, the submissions made on behalf of the Applicant in support of an order that the Respondent pay his costs of and incidental to the appearance on 29 April 2016 primarily rested on the basis that she was wholly unsuccessful in her attempt to obtain such relief.

6. Whilst this is undoubtedly the case, I am not persuaded that this alone is sufficient to persuade of a conclusion that the circumstances justify the making of an order for costs adverse to the Respondent, particularly given the statutory starting-point for costs.

7. The Respondent failed to comply with the requirement that she file and serve a document consolidating and particularising the interim relief sought in her outstanding interim Applications.  

8. Despite the Respondent’s failure to comply with the requirement, imposed by Forrest J on 29 April 2016, that she file and serve a document consolidating and particularising the interim relief sought in her outstanding interim Applications, I heard her when she appeared on her own behalf before me on 18 July 2016.

9. On that day I heard the Respondent’s numerous interim Applications and, given that these could not then be finalised, I listed the same before me on a later date. I also listed the matter for trial. For the reasons given ex tempore that day, I dismissed the Respondent’s oral Application for the transfer of the proceedings to Newcastle. I reserved my decision in relation to her application for review of the 11 February 2016 Order.

10. Given that the appearance on 18 July 2016 resulted in the matter being accorded some priority and being listed for trial, I am not persuaded that the circumstances justify the making of an order that the Respondent pay the Applicant’s cost of and incidental to that appearance.

11. On 5 August 2016, I made interim parenting Orders and otherwise disposed of the outstanding Applications for interim relief. In summary, the Orders made that day included that the children spend supervised time with the Respondent, once per month for up to two hours, with the first three of such visits with the Respondent to be supervised by the Family Consultant; and, after the children had spent this time with the Respondent, then their time with her occur on a monthly basis at the I Contact Centre in Sydney, New South Wales. The Order provided that the costs of the supervised time at the Contact Centre be shared equally between the Applicant and the Respondent.

12. The Applications which were dismissed that day included that by which the Respondent sought that the children spend time and communicate with the maternal grandparents and that the children be called as witnesses in the proceedings and be ‘separately represented’. In so far as these were concerned, the Respondent was wholly unsuccessful.

13. Despite this, I am not persuaded that the circumstances are such as to justify the making of an order that the Respondent pay the Applicant’s costs of and incidental to the appearance on 5 August 2016.

The costs of the final hearing

1. The Applicant also sought an order that the Respondent pay his costs of and incidental to the final hearing. I consider that the most appropriate manner in which to determine this aspect of his application for costs is to afford the parties the opportunity to file written submissions in support of any such Application within a prescribed timeframe. This will enable a consideration of the Orders made to finalise the proceedings and the Reasons which underpin the same.

2. I also intend to order that, once the parties are afforded the opportunity to be heard via the provision of written submissions, I will determine any application for an order for the costs of the final hearing in Chambers, without the need for any further appearance. By doing so, I hope to limit the parties’ costs without compromising their right to be heard.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 January 2018.

Associate:                 

Date:    22 January 2018