Westcott & Hanley

Case [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

  1. 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.

  2. The mother seeks an order that the…

Continue reading Westcott & Hanley

Sign in free to access the full text

Details
AGLC
Westcott & Hanley [2021] FedCFamC1F 205
Case
[2021] FedCFamC1F 205
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute between the mother and father regarding the parenting arrangements for their three children, following the breakdown of their marriage. The father sought equal parental responsibility and unsupervised time with the children, while the mother opposed unsupervised time, citing concerns about the father’s alleged risk of harm to the children. The father discontinued his application, leading the court to finalise the matter in his absence.

The court had to decide whether the mother’s application for the father to pay her costs should be granted. The mother argued that the father's discontinuation of his application and her more favourable initial proposals constituted a formal offer to settle the proceedings, which the father had not accepted. The court considered the usual rule that each party bears their own costs and whether there were circumstances justifying a departure from this rule.

The court determined that the mother's initial proposals were not a formal offer to settle, as they were not made in writing and the father did not accept them. The court held that there was insufficient justification to depart from the usual rule that each party bears their own costs, noting that the father had discontinued his application in what he believed was in the children’s best interests. The court dismissed the mother’s application for costs and made orders accordingly.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.