Wenlock and Torrance (No.2)
[2007] FMCAfam 1027
•29 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WENLOCK & TORRANCE (No.2) | [2007] FMCAfam 1027 |
| FAMILY LAW – COSTS – Case turns on its own facts. |
| Family Law Act 1975 (Cth) |
| Applicant: | MS WENLOCK |
| Respondent: | MR TORRANCE |
| File Number: | MLM 7236 of 2006 |
| Judgment of: | Walters FM |
| Hearing date: | 10 August 2007 |
| Date of Last Submission: | 10 August 2007 |
| Delivered at: | Shepparton |
| Delivered on: | 29 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T J Puckey |
| Solicitors for the Applicant: | Morrison and Sawers |
| Counsel for the Respondent: | In Person |
| Counsel for the Independent Children’s Lawyer: | Mr D J McLeod |
| Solicitors for the Independent Children’s Lawyer: | Faram Ritchie Davies |
ORDERS
The father pay the mother’s costs of and incidental to the proceedings fixed in the sum of $18,501.00.
The father pay the said costs within 90 days from the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Wenlock & Torrance is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SHEPPARTON |
MLM 7236 of 2006
| MS WENLOCK |
Applicant
And
| MR TORRANCE |
Respondent
REASONS FOR JUDGMENT
Background
At the conclusion of the trial on 10 August 2007, I made detailed orders relating to parenting arrangements for the parties’ five children. Among other things, I ordered that the mother have sole parental responsibility for the children, and that they live with her. I also ordered that the father’s time with the children be limited and supervised for four calendar months (or a total of eight supervised sessions -- whichever is reached last). Thereafter, and provided that the father's supervised time has proceeded successfully, I ordered that the father is to spend time with the children on an unsupervised basis from 9:30 a.m. to 6 p.m. each alternate Saturday.
Further orders were made to the effect that the father is to be psychiatrically assessed before the contact moves from supervised contact in the strict sense to unsupervised, daytime contact.
The proceedings were otherwise adjourned to the August 2008 sittings of the Federal Magistrates Court in Shepparton.
When making the orders referred to above, I explained that the lengthy adjournment was necessary to monitor the father’s efforts to recognise, confront and deal with his problems (in the broadest sense). I observed that any increase in time spent between the children and the father would have to be a slow process. In paragraph 16 of the partial and preliminary Reasons delivered on 10 August 2007, I said as follows:
Trust must be rebuilt, in the sense that the father is going to have to demonstrate to the mother that he can be trusted as a responsible parent, who is prepared to allow the children to love and respect their mother, and have a full -- and meaningful -- relationship with her. In my opinion, the mother has already done more than enough to earn the father’s trust and respect. The fact that the father is either unable or wholly unwilling to grant her that trust and respect says far more about his intransigent attitude and unwarranted anger towards the wife that it says about anything that she may have done or not done as a parent or as a person.
Although I have yet to publish my Reasons for Judgment in final form, I have been asked to rule on the mother's application for costs. That application was foreshadowed during the trial, and the orders made on 10 August 2007 include the following:
The mother’s costs of and incidental to the within proceedings be reserved, and the parties have liberty to make relevant submissions in writing as follows:
i)any submission in support of an order for costs must be filed and served by not later than 4 p.m. on 31 August 2007; and
ii)any submission in response to such a submission must be filed and served by not later than 4 p.m. on 21 September 2007.
The mother’s solicitors forwarded written submissions in support of an order for costs by letter dated 23 August 2007. The father did not respond to the mother’s submissions.
The Law
The question of costs in family law proceedings is dealt with in section 117 of the Family Law Act. A trial judge, or in this case a Federal Magistrate, has a broad discretion in costs matters, and the Full Court has said that it will not ordinarily intervene unless the order is plainly unreasonable. Indeed, the Court has been held to have an almost unlimited jurisdiction in relation to costs – although, clearly, any costs order must be just[1].
[1] see Kelly & Kelly No 2 (1981) FLC 91-108, Hogan (1986) FLC 91-704 and I & I No 2 (1996) FLC 92-625
It is not the law that a costs order can only be made in “a clear case”. Thus, although a finding of justifying circumstances is an essential preliminary to the making of a costs order, there is no additional or special onus on an applicant for an order for costs. Although the general rule is that each party shall bear his or her own costs, that general rule is expressed to be subject to section 117(2), and must yield whenever the trial judge, or, in this case, Federal Magistrate, finds that there are circumstances justifying the making of a costs order[2].
[2] see Penfold (1980) FLC 90-800
There is nothing in the provisions of section 117 to justify any difference in approach to the question of costs in parenting cases. Circumstances such as a totally unmeritorious case on one side, an attempt to vary a residence order which does not even establish a prima facie case, the withholding of evidence (and like matters), are common bases for such an order, but are not necessarily prerequisites. As in any application for costs, the other relevant matters referred to in section 117(2A) must also be taken into account[3].
[3]see I & I No 2 and Re David Costs (1998) FLC 92-809
Relevant considerations
I turn now to consider the factors under section 117(2A).
The first matter to which the Court must have regard is the parties’ financial circumstances. I am aware that both parties are the registered proprietors of residential properties situated opposite each other in M. From April 2006 to August 2007, the father lived (with the children) in the house registered in the mother's name. The property registered in his name remained vacant. The mother met the payments due in respect of the mortgage encumbering the property in her name, and paid rates and insurance costs. The mother also worked in paid employment.
I am satisfied that the father’s assets (being, principally, the real estate which he owns) are sufficient to enable him to meet any relevant costs order.
The mother is in receipt of a grant of legal aid. According to her submissions, the terms of that grant require the mother to repay Victoria Legal Aid. Further, Victoria Legal Aid has lodged a caveat over her property.
The father is not in receipt of a grant of legal aid. He represented himself during the course of the proceedings. It follows that he did not incur legal costs.
I am required to have regard to the parties’ conduct in relation to the proceedings. In other words, I am required to give consideration to their conduct as litigants. Although the wife submits that the father has pursued allegations "which have ultimately proved false or unreliable", I note that such conduct is not procedural in its nature. I accept that the father's approach to the proceedings, and the testing of the various allegations that he made, caused the trial to be longer than it might otherwise have been. I also accept that the father’s witnesses were less than impressive. Beyond the fact that the father was generally unsuccessful in the proceedings, however, I am not minded to conclude that his conduct as a litigant was such as would (in itself) warrant the making of an order for costs.
The mother submits that the proceedings "arose entirely as a result of the father overturning settled arrangements which the parties had made following their separation". She submits that it can therefore be inferred that the proceedings were necessitated by the father's failure to comply with previous orders of the court. I do not agree.
The parties separated in June 2005. The mother continued to live in the family home, and the father lived across the road. The mother had the primary care of the children. The mother moved out of the family home in April 2006, in circumstances which formed the subject of evidence during the course of the trial. Prior to the change in residential arrangements, she had commenced employment in a local supermarket. She was required to leave for work at approximately
4 a.m.The father assisted the mother with the care of the children while she was working. In order to do so, he started staying at her home before she went to work.
I accept that the mother was intimidated by the father and was frightened of him. For those reasons (and, no doubt, because it would have been difficult for her to make alternative arrangements for the care of the children), the mother allowed the father to continue to care for the children in the family home while she was working.
Due to financial difficulties, the mother felt that she was unable to leave her employment, and herself care for the children on a full-time basis.
After commencing a relationship with her present partner, Mr A, the mother found herself under increasing pressure from the father. For reasons which are not now relevant, the mother eventually agreed to move out of her home and to leave the children in the father's care. An agreement was drawn up pursuant to which the children were to be cared for by the mother from 3:30 p.m. to 6:30 p.m. every Monday, Wednesday and Friday and each alternate weekend from Friday after school until Sunday evening. The children were to be cared for by the father at all other times.
Problems arose very shortly after the parties entered into the agreement referred to in the previous paragraph. For example, the father’s behaviour on Mother's Day, 2006 was aggressive and abusive. A further incident occurred on 16 June 2006, on the birthday of one of the children.
The parties attended mediation in July 2006. The mediation resulted in an agreement to the effect that the mother was to see the children each alternate weekend from 5 p.m. Friday to 7 p.m. Sunday, and each Wednesday from 3:30 p.m. until 7 p.m. For various reasons, this arrangement did not operate effectively.
The father remained hostile to the mother at all relevant times, and criticised and belittled her to and in front of the children.
Further incidents occurred which had the effect of the mother’s contact with the children being impeded by the father.
In all the circumstances, the mother saw fit to commence proceedings in the Federal Magistrates Court on 24 August 2006.
During the course of his closing address, Mr Puckey (for the mother) suggested that the present proceedings comprise "a very strong example of a domestic violence case". He submitted (and I accept) that the domestic violence in this case consisted of physical violence, verbal abuse, and emotional and financial deprivation, all inflicted upon the mother. Although I neither condone nor minimise any part of the father’s behaviour, and whilst I recognise that the father seems incapable of understanding the effect of his behaviour on the mother and the children, I am not persuaded that the matters discussed above necessarily lead to a conclusion to the effect that the proceedings were necessitated by the father's failure to comply with previous orders of the court. In any event, the simple fact of the matter is that there were no previous orders of the court.
It is clear beyond argument, however, that the father has been wholly unsuccessful in these proceedings. The mother sought orders to the effect that the children live with her, and that she be their primary carer. The father opposed those orders and sought that the children live with him. He also sought that the mother’s time with the children be supervised. The result of the proceedings is, currently that the children now live with the mother, and that the father has limited contact with them.
The orders made on 10 August 2007 reflect my view that the father’s time with the children should be strictly supervised until he can demonstrate that he has begun to deal with his own problems, and that he will no longer project those problems on to the mother. Overall, the August Orders are comprehensive, and are intended to protect the children from some of the more troubling aspects of the father’s attitudes and behaviour.
It is clear that neither party made any relevant offer in writing to settle the proceedings. It follows that this is not a relevant consideration.
The court is also entitled to have regarded to such other matters as it considers relevant. The mother submits that "the father conducted the litigation in such a vitriolic and emotionally damaging manner on the children that the outcome of the proceedings from the father's perspective has been far less favourable than was proposed by the mother until the very late stages of the trial".
In my partial and preliminary Reasons, I observed that the father’s attitudes seem firmly entrenched. I wrote as follows:
(The father) seems devoid of compassion or understanding in relation to any of the experiences of the mother -- who became his partner at a very, very young age and who has borne him five children. I am not even certain that the father fully accepts that the children are his -- notwithstanding the fact that there is not a shred of credible evidence before me to suggest that they are not his biological children….
The father ... was anything but an impressive witness. … He said whatever he thought might assist his case, without regard for what may have actually been the truth … (He) was not a credible witness. He was and is still filled with anger, frustration and resentment …
I regret to have to record that the father has involved the children in these proceedings (as the video of the two elder girls, and the circumstances surrounding its production, make abundantly clear). He has encouraged them to make allegations against and criticisms of the mother.…
Conclusion
In my opinion, there are circumstances which justify the making of an order for costs in the mother's favour. The most significant of those circumstances is the fact that the father has been wholly unsuccessful in these proceedings. That, in itself, is sufficient to justify an order for costs. But I also take into account the matters referred to in the two preceding paragraphs. Relevantly, I recognise that the father’s hostility to the mother, and his irrational and unreasonable attitude towards her, made it impossible to settle the proceedings at an early stage or, indeed, at any time prior to the conclusion of the trial. The father's intransigent attitude and almost pathological dislike for the mother made a trial inevitable, and the matters to which I have referred above made it equally inevitable that the father's case could not succeed.
Quantum of Costs
Rule 21.10 of the Federal Magistrates Court Rules 2001 provides that, unless the court otherwise orders, a party entitled to costs in a proceeding is entitled to costs in accordance with Schedule 1, together with disbursements properly incurred. Rule 21.02(2) provides that, in making an order for costs, the court may, among other things, set the amount of the costs, set the method by which the costs are to be calculated or refer the costs for "taxation" (now called "assessment") pursuant to the Family Law Rules. It follows that Chapter 19 of the Family Law Rules has no application unless costs are to be assessed.
Instead of calculating costs pursuant to Schedule 1 of the Federal Magistrates Court Rules, the mother (in paragraphs 4 and 5 of her submissions) endeavours to itemise costs pursuant to legal aid grants and pursuant to the Family Law Rules. I am not persuaded that either approach is appropriate, and can see no reason why the "default" position under the Federal Magistrates Court Rules ought not to adhere.
Schedule 1 of the Federal Magistrates Court Rules provides for the following costs in the circumstances of this case:.
Stage 4: “PDR” litigation intervention
Legal Aid “RDM”
$1250.00
Stage 1A: Initiating application which includes interim orders (other than procedural orders) up to completion of first court day
Lump sum
$1875.00
Stage 2: Interim hearing
30 October 2006
$205.00
Stage 5: Preparation for trial (2 day matter)
Re February 2007 trial
$3965.00
Stage 6: Final hearing costs (Solicitor)
Re February 2007 trial (2 days)
$3000.00
Stage 5(#2): Additional preparation for trial (2 day matter)
Re August 2007 trial
$850.00
Stage 6(#2): Final hearing costs (Counsel)
Re August 2007 trial (4 days)
$9000.00
Total:
$21,645.00
It is unclear from the mother’s submissions whether her solicitor was present to instruct throughout the August trial (although solicitors’ fees are claimed for the February trial). In the absence of an adequate explanation regarding this subject, I have decided to ignore solicitors’ costs as they relate to both trials.
It is clear from the above that an appropriate lump sum order for costs based on Schedule 1 of the Federal Magistrates Court Rules (excluding disbursements) would be $21,645.00. I note, however, that one of the two (alternative) figures for costs referred to in the mother's submissions is less than this amount. Given that the mother does not appear to have expressed a preference for one figure over the other, and in all the circumstances, I have decided that an appropriate quantum of costs in this case is $18,501.00 – being the lower of the two amounts referred to in the mother's submissions. I find that it would be fair and reasonable to order the father to pay costs fixed in that sum.
There will be an order that the father pay the mother's costs of and incidental to the proceedings fixed in the sum of $18,501 00. Although neither party made submissions regarding time for payment, I am of the view that 90 days is an appropriate timeframe. It follows that there will be a further order that the father pay the costs within 90 days from the date of the costs order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Walters FM
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