Wells and Roberts (No. 3)

[2008] FamCA 1111

FAMILY COURT OF AUSTRALIA

WELLS & ROBERTS (NO. 3) [2008] FamCA 1111

FAMILY LAW – COSTS – whether one or both parties pay costs incurred by the independent children’s lawyer – whether the father should pay the mother’s costs

Family Law Act 1975 (Cth) s 117

Penfold v Penfold (1980) 144 CLR 311
CDJ v VAJ (No. 2) (1998) 197 CLR 172
In the Marriage of Rice and Asplund (1979) FLC 90-725

APPLICANT: Mr Wells

RESPONDENT: Ms Roberts

INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

FILE NUMBER: SYC 3493 of 2007

DATE DELIVERED: 9 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 8 & 9 December 2008

REPRESENTATION

APPLICANT IN PERSON: No appearance

COUNSEL FOR THE RESPONDENT:	M Cleary
SOLICITOR FOR THE RESPONDENT:	Watts McCray

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	K Reynolds
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	K Rowley

Orders

1. That the father pay the mother’s costs of the parenting proceedings between the parties incurred by her subsequent to 26 August 2008 and excluding the interim Application determined 21 October 2008 as assessed and agreed upon or failing agreement as taxed.

2. That the father pay the independent children’s lawyer’s costs of $10,138.00 on or before 9 June 2009.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3493 of 2007

MR WELLS

Applicant

And

MS ROBERTS

Respondent

REASONS FOR JUDGMENT

Costs -mother

1. Application is made on behalf of the mother for an order for costs against the father, being costs of and incidental to the proceedings determined by me today.

2. The general rule in relation to costs, in this jurisdiction, is that each party bears his or her own costs.[1] That is subject to the provisions of section 117 sub-section (2) which provide that an order for costs may be made that is just or proper should there be a circumstance that may justify such an order being made.

   [1] Section 117(1)

3. The leading authority in relation to costs and the manner in which the power may be exercised is that of the High Court in Penfold v Penfold[2].

   [2] Penfold v Penfold(1980) 144 CLR 311

4. In Penfold’s case it was held that the court has a wide discretion to make an order for costs and indeed reasons for judgment do not necessarily have to be given.  It rejected the proposition that a special circumstance needs to be shown for the purpose of meeting, as it were, a threshold test for a costs order.

5. I have concluded that a circumstance has been established in favour of the mother in that the father has been wholly unsuccessful in his application.

6. I am now required to take into account the considerations set out in sub-section (2A) of section 117 to the extent to which it is relevant to do so.

7. Those relevant considerations are as follows.

8. The evidence of the mother’s financial circumstances is set forth in her Financial Statement filed 10 March 2008 and by inference from her Affidavit sworn 21 November 2008.

9. The mother is employed on a full-time basis as a teacher.

10. Her average gross income is $1,952.00 per week.  Her estimated total personal expenditure, including tax, is $2,234.00 per week.  Her property is well exceeded by her liabilities.  I accept that her liabilities have increased due to additional borrowings from her mother of $10,000.00 for payment of school fees, such borrowing having taken place in August 2008, and liability for orthodontic work of $7,450.00 subject to a rebate, the extent of which was not known to the mother.

11. The father’s financial circumstances are set forth in his Financial Statement sworn 10 February 2008.

12. He is in full-time employment as a school master.

13. His average weekly income of $1,083.00 is expressed by him to be after deductions.  It is clear from the balance of his document that includes a deduction for tax and for superannuation contribution.  He states that the value of property owned by him is $88,000.00.  It is clear from the document, that is arrived at after deduction of the mortgage debt of $384,000.00.  He further states that his liabilities amount to $502,000.00 plus an overdraft of $9,600.00.

14. It is clear from his Financial Statement that he has double counted the mortgage because the total to which I last referred includes the same mortgage of $384,000.00 that he had previously deducted at Item 35, page 6 of the Financial Statement, to give the net value of his property of $88,000.00.

15. Consequently, I find that his property of $88,000.00 after deducting the mortgage has to be seen against his liabilities of approximately $120,000.00.

16. The mother has modest superannuation compared to that of the father where he states the gross value of his superannuation is $340,000.00.  Neither of the parties is in receipt of legal aid, so far as I am aware.

17. With regard to the conduct of the parties in relation to the proceedings, the father has failed to comply with the directions made on 26 August 2008 for the filing and service of affidavits before 4.00 pm 24 November 2008.

18. I am informed by counsel for the mother that the father has also not complied with the costs order made against him in the sum of $450.00 on 21 October 2008 which required payment on or before 5.00 pm  11 November 2008.

19. It only became clear at the commencement of the continuation of the hearing yesterday that the father would not be appearing, nor did he instruct anyone to appear for him.

20. The evidence of the mother, which I accepted, in relation to her telephone conversation with the father on Sunday, 7 December 2008 included his statement that he was no longer seeking a residence order.  Again, that important issue, especially in circumstances where he was seeking that the children live with him in the United Kingdom, was not the subject of any court document, to which my attention was drawn, filed by or on behalf of the father until yesterday morning.

21. The mother, on the other hand, has complied with all directions that were made and other interim or interlocutory orders.

22. The father has been wholly unsuccessful in the proceedings.  The mother has been wholly successful.  There is no evidence of an offer in writing having been made to settle the proceedings by either party.

Conclusion

1. I have concluded that an order for costs will be made in favour of the mother of and incidental to the proceedings subsequent to 26 August 2008, with the exception of the application determined by me on 21 October 2008.  The reasons are as follows.

2. The mother has been wholly successful.  The father has been wholly unsuccessful.

3. The father failed to comply with orders for filing and service of affidavits, notwithstanding submissions made in that regard to assist his side of the case on 26 August 2008.  The father failed to comply with a costs order made on 21 October 2008.

4. The mother filed and served her affidavits, briefed counsel and engaged in the implicit preparation that was necessary to conduct this matter.  One week had been set aside for that purpose.  No notice was received from the father of his intention either not to appear or, not to instruct solicitor or counsel to appear on his behalf.  No notice was received by the father, other than as a result of the telephone conversation between the mother and the father on 7 December 2008, that he no longer sought an order described as a “residence” order, implicitly meaning that the children live with him in the United Kingdom.

5. I have taken into account the mother’s strained financial circumstances.  It is clear that the father's financial circumstances are modest, even allowing for the double counting by him of his mortgage liability and what may be two loans from a lender described as “Y” in his Financial Statement.

6. The father did participate in a substantial way in the proceedings up to and including the orders made on 26 August 2008.  He has not done so since.

7. Consequently, the order for costs is limited to costs incurred by the mother subsequent to that date, given that they were incurred without any proper notice from the father of his apparent intention to no longer actively appear in the proceedings.

8. A costs order has already been made by me on 21 October 2008.  Consequently, the proceedings determined on that day are excluded from the costs order.

Costs – independent children’s lawyer

1. An application is made for an order for costs by the independent children’s lawyer.  The order sought is in the alternative, namely $5,069.00 by each of the parties, representing the costs incurred by the independent children’s lawyer, or alternatively, the father pay costs of $10,138.00.

2. In my view, a circumstance has been established which may justify an order for costs being made. That circumstance is that the independent children’s lawyer appears in the public interest fulfilling an important role pursuant to the Family Law Act. The public interest issue, so far as the responsibility of the independent children's lawyer, was emphasised in the context of a costs application referred to by Kirby J in the High Court in CDJ v VAJ (No. 2)[3].

   [3] CDJ v VAJ (No. 2)(1998) 197 CLR 172

3. The additional matters that I take into account are the father having been wholly unsuccessful, the failure by the father to comply with the directions for filing and service of affidavits to which I earlier referred, the preparation by the independent children's lawyer, including briefing of counsel, for the continuation of the hearing set down for one week commencing yesterday, the lack of notice by the father on any reasonable basis to the independent children’s lawyer of his intention to either not appear in person or, not to instruct counsel or a solicitor to appear on his behalf.  I also take into account the financial circumstances of the parties to which I earlier referred.

Conclusion

1. I have determined that there will be an order as sought by the independent children’s lawyer for payment by the father of the independent children’s lawyer's costs of $10,138.00.

2. My reasons for doing so are as follows.

3. The father has been wholly unsuccessful.  The independent children’s lawyer had to engage in preparation for the continuation of this hearing against a background where the father did not give notice of his intention to not appear in the hearing or, to instruct solicitor or counsel to appear on his behalf.  Had he done so in a timely manner, then it may well have been that the independent children’s lawyer would not have sought to have been heard or indeed, counsel not briefed.

4. The issue of seeking an order that the children live with him in the United Kingdom was an important and live issue until the commencement of the resumption of the hearing yesterday.  The mother has had to bear the ongoing financial support of the two children without any financial support provided by the father.  In those circumstances an order will be made, notwithstanding the modest financial circumstances of the father, and the further procedural steps that may have to be taken to enforce the order.

5. Counsel for the mother has quite properly drawn my attention, however belatedly, to the circumstance that the Affidavits of the mother and her two witnesses each sworn 21 November 2008 were not served upon the father, albeit that the father was sent a copy of the Amended Response which he subsequently acknowledged in the evidence of the mother to which I have earlier referred.

6. Counsel for the mother also informs me that on her instructions, the father informed a solicitor in the mother’s solicitor’s firm by telephone that he did not wish to receive copies of the mother's affidavits.  Consequently, copies of those affidavits were not sent to the father, albeit that the Amended Response was sent.  During the course of the hearing today, I stated that I was satisfied in relation to service for the reasons then indicated by me.

7. The failure to comply with an order for service of affidavits by the mother, notwithstanding her filing of them and the information that counsel has now provided, is caught by Rule 11.02.  This is a procedural rule and provides that a court has a discretion to determine a case as if it was undefended as the father failed to file and serve any affidavits which he had earlier stated, through his solicitor, that he wished to rely upon.

8. I have proceeded with the hearing of this matter other than on an undefended basis in that whilst the continuation of the proceedings was not defended, evidence had been previously given by the father on the first day of the Less Adversarial Trial procedure and I have had regard to those matters.  I have also invited and heard submissions from counsel and provided Reasons for Judgment, as opposed to simply making orders.

9. The non-service of affidavits upon the father I accept was caused by him as a result of the statements that he made to the solicitor for the mother.  Counsel who informed me of that information, albeit late, did so quite properly.  Counsel for the mother is a barrister of substantial experience and competence with an unimpeachable reputation.  Consequently, as an officer of the court, I accept her statements.

10. As a result, I nonetheless will make the orders as indicated by me, both in relation to costs sought by the mother and by the independent children’s lawyer.  That information does not, in my view, vitiate the parenting proceedings in respect of which I have made parenting orders.

11. Consequently, I do not consider that I need to set aside, vary or suspend any of the parenting orders made.  In any event, a parenting order is not final in the sense that a party may always seek to set aside, vary or suspend a parenting order provided such an application is made, bearing in mind the rule in Rice and Asplund[4].

    [4] In the Marriage of Rice and Asplund (1979) FLC 90-725

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  18 December 2008