Westcott & Hanley
[2021] FedCFamC1F 205
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Westcott & Hanley [2021] FedCFamC1F 205
File number(s): PAC 1259 of 2017 Judgment of: HANNAM J Date of judgment: 18 November 2021 Catchwords: FAMILY LAW – COSTS – Where the mother seeks that the father pay her costs in the parenting proceedings in a specified sum – Where the father who was self-represented in the primary proceedings opposes the mother’s costs application and seeks that she pay his costs – Where there is a general rule that self-represented litigants cannot recover costs for litigation other than some payments – Where there are no circumstances that justify departing from the usual rule that each party shall bear his or her own costs – Each party’s application for costs dismissed. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.01
Cases cited: D & D (Costs) (No. 2) (2010) FLC 93-435
Oscar v Traynor [2008] FamCAFC 158
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam L 23
Penfold v Penfold (1980) 144 CLR 311
Westcott & Hanley [2021] FamCA 569
Division: Division 1 First Instance Number of paragraphs: 51 Date of last submission/s: 24 September 2021 Place: Parramatta Counsel for the Applicant: Melissa Gillies SC Solicitor for the Applicant: Branston Neville Lawyers Solicitor for the Respondent: Self-Represented ORDERS
PAC 1259 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HANLEY
Applicant
AND: MR WESTCOTT
Respondent
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
18 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The mother’s application that the father pay her costs in the parenting proceedings in the sum specified in her Costs Notice dated 20 August 2021 is dismissed.
2.The father’s application that the mother pay his costs in an unspecified sum is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Westcott & Hanley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
This judgment concerns an oral application for costs made by the mother who was the respondent in proceedings initiated by the father regarding property settlement and the future parenting of their three young children.
The mother seeks an order that the father pay her costs relating only to the parenting proceedings in a specified sum.
The father opposes the mother’s application and seeks that his own costs be paid by the mother.
The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs.
BACKGROUND
The parties (“the mother” and “the father”) were married in 2010 and in the course of their relationship had two daughters and a son (“the children”). Following the breakdown of their relationship in 2016, the father initiated proceedings seeking orders that the parties equally share parental responsibility for the children and that the children live with the mother and spend substantial and significant time with him on an unsupervised basis.
The parties were also initially in dispute about a fair distribution of their property but that dispute resolved by way final orders made with the parties’ consent in 2017. Although the father later applied to have those orders revisited and also claimed that he was bankrupt, he ultimately discontinued that application and otherwise had matters related to his bankruptcy dealt with in the Federal Court.
From the outset of the parenting proceedings in this Court, the mother was largely opposed to orders that the children spend unsupervised time with the father. She contended that the father posed an unacceptable risk of sexual and physical harm to them and maintained up until final hearing that he perpetrated significant family violence towards her to which the children were exposed. It was also her case that the father was physically abusive towards the children, and that on various occasions between 2017 and 2018 each child disclosed sexual abuse and untoward conduct by him.
The father denied the mother’s allegations at all times. He alleged that the mother perpetrated significant family violence towards him during their relationship and at one stage, also alleged that the maternal grandmother (who lived with the mother and the children for a significant time following separation) had sexually abused the son.
While the various allegations made by each of the parents over the years grounded notifications to the Department of Family and Community Services (as they were formerly known), of those referred to and investigated by the Joint Investigation Response Team (“JIRT”)[1], none were ultimately substantiated.
[1] The Joint Investigation and Response Team was made up of officers from the Department and police and investigated complaints of sexual abuse and serious physical abuse of children.
Despite the outcome of JIRT investigations, the mother maintained that the children were at risk in the father’s care and ultimately proposed that the children spend no time and have no communication with him.
The children did not at any stage of the proceedings spend substantial time with the father despite orders providing for some time to occur. By August 2020, the father discontinued his entire application and subsequently advised the Court that he considered his decision to disengage from the proceedings in the best interests of the children. On this basis, I was easily satisfied that it was in the children’s best interests for the matter to be finalised and dealt with in his absence.
The undefended hearing took place in February 2021 and in the course of that hearing both the mother and the Independent Children’s Lawyer appointed to the proceedings (“the ICL”) sought a finding that the father posed an unacceptable risk of harm to the children. Both parties also agreed on a proposal that the mother hold sole parental responsibility for the children and that the children live with her. Final orders were made in these terms on the basis of the father’s disengagement and the fact that he had not been involved in the children’s lives since August 2020. Other orders sought by the mother relating to time with the father, overseas travel and a change in the children’s name were reserved to final judgment.
Before judgment was reserved the mother made an oral application that the father pay her costs with respect to the parenting proceedings.
When final judgment was delivered on 5 August 2021, I made orders providing that the children spend no time and have no communication with the father, that they be permitted to travel overseas with the mother without the father’s consent and that the mother be authorised to change their middle names. In my Reasons for Judgment,[2] I concluded that given the father abandoned his entire application and no longer sought any involvement in the children’s lives, there was sufficient evidence for me to be satisfied that the proper orders to be made were those sought by the mother and ICL and that it was thus unnecessary to make factual findings regarding risks posed by the father as contended.
[2] Westcott & Hanley [2021] FamCA 569.
At the conclusion of the court event on 5 August 2021, the mother pressed her oral application for costs and agreed that it could be dealt with in chambers on receipt of written submissions. On 20 August 2021, the mother provided to chambers her written submissions, an affidavit and a Costs Notice upon which she relied in relation to this application.
In circumstances where the orders made on 5 August 2021 did not include an order that the mother serve her submissions and evidence on the father or that the father be given the opportunity to make submissions in relation to costs, further orders were made in these terms in chambers on 1 September 2021 for the purposes of affording the father procedural fairness.
On 24 September 2021 the father provided to chambers an affidavit in which he makes his submissions as to costs. On receipt of this affidavit, judgment was reserved.
THE MOTHER’S COSTS APPLICATION
As outlined in written submissions prepared on her behalf, the mother seeks that the father pay her costs in the sum specified in her Costs Notice. These costs include legal costs she has paid to date totalling $272,282.27, and a further outstanding sum of $7,599.73 which includes fees for legal work undertaken in relation to these proceedings.
The mother notes in her written submissions that although the parties were also in dispute about property settlement which resolved in late 2017, she does not seek payment of costs incurred for any “appearances, correspondence, conferences or drawing of documents” relating to that aspect of the proceedings. In other words, the costs she proposes the father pay relate solely to the parenting dispute, and she confirms that the total specified in her Costs Notice relates to the parenting dispute alone.
The father did not make any written submissions in relation to costs and relies rather on an affidavit dated September 2021. In that affidavit he opposes the mother’s application for costs and seeks that she pay his costs in the proceedings but does not specify a sum.
In circumstances where the father has been self-represented for the majority of the proceedings and does not otherwise specify any legal costs incurred in relation to the parental dispute, he has no entitlement to seek the payment of “costs” for his own time spent on the litigation other than “some payments”[3] such as out-of-pocket expenses, fares and other disbursements.[4] Given the father’s costs application does not seek payments of this nature, there is no basis upon which the Court can order the payment of “costs” by the mother. Accordingly, it is proper that I make an order that his costs application be dismissed.
[3] See note to r 12.01(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
[4] See for example, Oscar v Traynor [2008] FamCAFC 158.
I now consider the mother’s costs application.
THE LAW & DISCUSSION
Section 117 of the Family Law Act 1975 (“the Act”) provides that each party to proceedings under the Act shall bear his or her own costs, but that section is subject to subsection (2) which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make an order for costs as it considers just.
The High Court in Penfold v Penfold[5] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify making the order. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[5] (1980) 144 CLR 311.
Section 117(2A) sets out matters to which the Court is to have regard in considering what order, if any, should be made under subsection (2). The matters relevant in this case are as follows:
The financial position of each of the parties to the proceedings
It is the mother’s case that she is in a more limited financial position than the father. She submits that, unlike the father who has no known dependants, she has the sole care of the children and the expenses associated with her role as primary carer include meeting each child’s extracurricular activities as well as providing for the special needs of the younger daughter who is diagnosed with autism.
The mother further submits that although she is entitled to child support from the father, such child support is assessed in the small sum of $344 per annum and has been paid by the father on a sporadic basis. In the parenting proceedings, the mother gave uncontroversial evidence that the father’s child support arrears were at that time in excess of $2,500.
The mother also asserts that she is not in paid employment as result of the COVID-19 pandemic but is receiving government allowance. Although she submits that the father, in contrast, has maintained full-time employment from which he earns about $130,000 per annum, she does not provide any evidence in support of this assertion.
Otherwise, the mother deposes to expending her savings of about $45,000 on legal fees and claims that although she was entitled to $800,000 from her father’s estate, $235,000 of this amount was used to pay monies borrowed to fund her legal proceedings, and the remainder towards extinguishing her home mortgage.
The father disputes that he has the financial capacity to satisfy any order for costs. He deposes that he exhausted his funds on the parenting proceedings and in 2018 was declared bankrupt. Court records show that from around this time he did not engage legal representatives and was self-represented.
The father also refers to the final property orders made with the consent of the parties in 2017 providing that he transfer his interest in the former family home into the mother’s sole name. He submits that unlike the mother who now holds interest in two separate properties including the former family home, his only “tangible asset” is a 50% interest in an overseas property valued at $32,000.
The father also deposes that he is no longer in paid employment and is instead receiving government allowance. He further deposes that his liabilities include legal fees of over $200,000 (incurred from Family Court proceedings and Federal Court proceedings) and child support arrears totalling over $12,000.
Curiously, although some reference is made by the father to the orders made with the parties’ consent in 2017 providing that the mother hold sole interest in the former family home, no reference is made to the assets he retained under those orders such as his superannuation entitlements and other property in his possession at the time. In any event, the 2017 property orders made by consent also provided that the mother retain her superannuation and other items of value such as the family car, and there is no evidence in these proceedings as to the current value of either party’s assets.
Having regard to each of the party’s financial circumstances as discussed, I do not consider that the father is in a more favourable financial position than the mother as she contends. Although I accept the mother may be facing financial challenges as a result of the COVID-19 pandemic and is largely financially responsible for the care of the parties’ three children, it is her own evidence that she benefited from a significant sum of money she inherited from her father’s estate. The majority of her legal fees have effectively been paid from this inheritance and has also allowed her to enjoy the former family home unencumbered from about June 2021.
Throughout the primary proceedings, and these proceedings, the mother has also been legally represented including by Senior Counsel. I find it difficult to conclude that the mother would maintain legal representation as such if she were as financially strained as she claims to be.
Further, the mother’s contention that the father is in paid employment earning an annual income of about $130,000 is inconsistent with her evidence in the primary proceedings. In her trial affidavit, not only did she indicate that she had no knowledge of where the father currently worked, but when discussing matters relating to the father’s child support debt, added that it appeared to her that the father no longer held his position within the health industry and that the Child Support Assessment at the time indicated his income as “$25,000 per annum”. Notwithstanding some uncertainties regarding the father’s current employment status (though he deposes he is unemployed and receiving government allowance) it seems to be a common position between the parties that he remains liable to the Child Support Agency for unpaid child support payments totalling over $2,500. The father insists that he has been making additional payments of $50.00 per fortnight to the Child Support Agency to meet this debt.
Against this background, I attach some weight to the relative financial positions of the parties when considering the mother’s application for her costs to be paid by the father. Any financial hardship the father may be suffering, however, is not determinative as impecuniosity is no bar to the making of an order for costs.[6]
[6] D & D (Costs) (No. 2) (2010) FLC 93-435.
The conduct of the parties to the proceedings in relation to the proceedings
The mother submits that the father’s conduct towards her was “reprehensible”. In support she refers to having faced “contravention proceedings which were dismissed”, “complications that the father threw in her way to conclude the property proceedings” (although she does not specifically detail what these complications were) and to the fact that she was “forced to make an application to the Federal Court of Australia to overturn the father’s bankruptcy”.
It is in my view inappropriate to attach any weight to assertions concerning the father’s conduct regarding his bankruptcy issue or his conduct in the property proceedings more broadly. While I accept that these matters may well have added complexity to the overall litigation between the parties, they have little bearing in relation to the current costs application given the mother makes clear in her submissions that the costs she seeks relate solely to the parenting dispute.
Although I accept that various contravention applications were filed by the father against the mother which were ultimately dismissed at a contravention hearing in 2019, the father’s conduct in this regard and any associated costs incurred by the mother cannot be taken into account in the current application given the father was already subject to a costs order made at the conclusion of the contravention hearing requiring that he pay the mother the sum of $10,000.
It is also the mother’s case that the father’s application for parenting orders was “wholly inappropriate” in light of the “factual matrix” of the matter. It is trite to observe that throughout the primary proceedings the mother made a plethora of allegations regarding risks said to be posed by the father, which if proved could raise some concern about the father’s proposal for time with the children. However, as stated in my Reasons for Judgment,[7] I did not consider it necessary to make any factual findings regarding risk in order to make orders I considered to be in the children’s best interests in the circumstances. Absent such findings, it cannot be said that prior to disengaging from the proceedings the father pursued a case without merit.
[7] Westcott & Hanley [2021] FamCA 569 [118]-[121].
The mother also takes issue with the father formally withdrawing from the proceedings by “simply filing a Notice of Discontinuance”, suggesting that it would have been more reasonable to resolve the parental dispute “on appropriate terms”. She asserts that as a result of the father’s actions in this regard she was “forced” to conduct proceedings to a conclusion which involved filing evidence and preparing the matter for hearing, which all attracted significant costs to her.
Little weight in my view can be attached to this matter having regard to the protracted nature of the parties’ litigation and the significant level of hostility between them. It can be seen from court records that from the commencement of proceedings in 2017 there were a number of court events and various interim applications filed by each party. At one point of her written submissions the mother also complains that in the course of the proceedings the father countered her sexual abuse allegations made against him with false allegations that the maternal grandmother had sexually abused the son. As mentioned earlier, she also made serious allegations against the father not limited to sexual abuse.
In these circumstances, some doubt arises as to the parties’ capacity to have amicably agreed to appropriate terms to resolve the matter without judicial intervention. I note that there had been at least one attempt to engage the parties in Family Dispute Resolution in early 2020 which did not prove fruitful. Orders made by a Registrar in October 2020 further indicate that, at the time the father disengaged from the proceedings, the mother’s lawyer confirmed with the Court that the mother “wishes to pursue her parenting orders despite the father’s discontinuance”. Only then did the matter proceed to undefended hearing and included the mother seeking findings against the father which required that she file evidence in support of such findings.
For the foregoing reasons, costs relating to the parenting proceedings particularly as they relate to bringing the matter to trial cannot be attributed solely or largely to the father’s conduct. The nature and history of the proceedings were such that there was a real prospect that a final hearing would be required to resolve the parenting dispute.
The father’s conduct therefore is not a weighty matter in determining the mother’s costs application.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The mother submits with respect to this matter that the father failed to avail himself of his time with the children pursuant to court orders. She argues that he put the parties to the expense of conducting an interim hearing relating to the children’s time with the father but did not avail himself fully of the time with the children provided for under interim parenting orders. It is unclear however how the father’s failure to do so as described “necessitated proceedings” in the way contemplated by this provision.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
Although the father did not succeed in having orders made in accordance with his original or amended proposal, in my view it could not be said that he was wholly unsuccessful in that his application was not tested on its merits. Rather, in considering the children’s best interests against the long history of the proceedings he chose to discontinue his case.
While the orders made on a final basis were also largely in the terms sought by the mother, she cannot be taken to be wholly successful in the proceedings given none of the findings she sought against the father at final hearing were made.
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
The mother refers to the fact that the orders proposed by her at the inception of the proceedings were “more favourable” to the father than the final orders that were ultimately made. Be that as it may, I am not satisfied this amounts to a formal offer made in writing to settle the proceedings.
CONCLUSION
Having regard to the foregoing matters, and notwithstanding that there is nothing to prevent any one factor being the sole determinant for an order for costs,[8] I am not satisfied that there is sufficient justification to depart from the usual rule that each party bears their own costs. As such, I dismiss the mother’s application that the father pay her costs in the proceedings and make orders accordingly.
[8] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 18 November 2021
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