Whytham and Teng

[2019] FamCA 705

FAMILY COURT OF AUSTRALIA

WHYTHAM & TENG [2019] FamCA 705

FAMILY LAW – COSTS – Where there was an Application before the court to register overseas parenting orders – Where that Application was withdrawn – Where the Court considered s117(2A) of the Family Law Act 1975 (Cth) and the principles in Hawkins & Roe – Where no grounds for a costs order were found – Application dismissed.

Family Law Act 1975 (Cth) s 117(2A)
Family Law Regulations 1984 reg 23

Hawkins & Roe (2012) 476 Fam LR 526

APPLICANT: Mr Whytham

RESPONDENT: Mr Teng

FILE NUMBER: PAC 3894 of 2018

DATE DELIVERED: 3 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 3 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Tiyce & Lawyers

SOLICITOR FOR THE RESPONDENT: Page Provan

Orders

IT IS ORDERED

1. That the application for costs contained in an amended application in a case filed 23 September 2019 be dismissed.

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 Whytham & Teng 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 SYDNEY

FILE NUMBER: PAC 3894  of 2018

Mr Whytham

Applicant

And

Mr Teng

Respondent

REASONS FOR JUDGMENT

1. Mr Whytham (“the applicant”), and Mr Teng (“the  respondent”) lived in a de facto relationship and wanted to have a child.

2. They entered into a contract for commercial surrogacy in State B, USA and Z was born in State B in late 2017.

3. On 16 October 2017, before Z was born, orders were made by consent in the Superior Court of State B, County of C which, inter alia, provided for the applicant and the respondent to have custody of Z.

4. They have now separated and a dispute has arisen in relation to Z’s living arrangements. Z currently lives with the applicant.

5. The dispute is significant. The applicant seeks sole parental responsibility for Z; that she live with him and that her surname be changed from Whytham-Teng to Whytham. He seeks no order for Z to spend any time with the respondent.

6. The respondent seeks equal shared parental responsibility and to spend time with Z. Most importantly, the respondent wants to be recognised as Z’s parent for the purpose of Australian law as he has been for the purpose of State B law.

7. On 17 September 2018, the respondent filed a response in the substantive proceedings which sought, inter alia, an order that the orders of the Superior Court of State B be registered in the Family Court of Australia.

8. That application was listed before me on 23 July 2019. The applicant opposed the application. The application was withdrawn and the applicant now applies for costs.

9. The applicant asks for orders that the respondent pay his costs on an indemnity basis. Those costs are said to be $26,301.93.

10. In the alternate, the applicant seeks costs at scale.

11. The respondent opposes the making of any costs order.

12. In order for the costs application to be put in context, it is necessary to understand the legislative framework within which the application to register the orders was made.

13. Registration of overseas orders proceeds pursuant to the provisions of Regulation  23 of the Family Law Regulations 1984 which provides:

FAMILY LAW REGULATIONS 1984 - REG 23

Registration of overseas child orders

(1)  Subregulation (1A) applies if:

(a)  the Secretary receives:

(i)  from a prescribed overseas jurisdiction a certified copy of an overseas child order that was made in that jurisdiction; and

(ii)  a certificate signed by an officer of a court or by some other authority in that jurisdiction relating to the order and containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction; and

(b) there are reasonable grounds for believing that any of the following persons is ordinarily resident in, present in, or proceeding to, Australia:

(i)  the child who is the subject of the order;

(ii)  a parent of that child;

(iii)  a person having the right to have the child live with him or her, or the right of custody of or access to the child, or the right to spend time or communicate with the child.

(1A)  The Secretary must send the documents mentioned in paragraph (1)(a) to:

(a)  a registrar of the Family Court; or

(b)  the registrar of a State Family Court; or

(c)  the Registrar of a Supreme Court of a State or Territory.

(2)  When the registrar of a court receives from the Secretary the documents referred to in subregulation (1), the registrar shall register the order by filing in the court a certified copy of the order and the certificate relating to the order and noting the fact and the date of the registration on the certified copy.

(3)  Where an overseas child order has been registered in accordance with subregulation (2), the order may, on the application of the registrar of a court or a person interested in the order (including the child who is the subject of the order), be registered concurrently in any other court having jurisdiction under the Act.

(4)  A certificate by a court that the order has been registered in that court in accordance with subregulation (2) shall be sufficient evidence to enable a concurrent registration to be made.

(5) An overseas child order registered in accordance with this regulation is enforceable throughout Australia until the registration (including a concurrent registration) has been cancelled.

(6)  Where it appears to a court that the documents referred to in subregulation (1) have been received by the court other than from the Secretary, the court may, if all other requirements of subregulation (1) are satisfied, register the order.

(7)  Where a court exercising jurisdiction under section 70J of the Act substantially varies the order, the registrar of the court shall forthwith forward to the court or to the appropriate authority in the prescribed overseas jurisdiction:

(a)3 certified copies of the order of the court and the reasons for the order;

(b)  a copy of the depositions; and

(c) such further material as the court directs.

(8)  This regulation does not prevent a court that has jurisdiction under the Act from receiving evidence of an order made in an overseas jurisdiction (whether or not the jurisdiction is a prescribed overseas jurisdiction), being an order that:

(a)  deals with the person with whom a child is supposed to live, spend time or communicate; or

(b)  provides for a person to have custody of, or access to, a child.

1. Thus it is clear that the mechanism is put in train by the receipt by the Secretary of the specified documents.

2. In the present case, no documents were received by the Secretary or received by the Court from the Secretary.

3. Accordingly, it would have been necessary for the respondent to rely on the provisions of Regulation 23(6) which provides:

   Where it appears to a court that the documents referred to in subregulation (1) have been received by the court other than from the Secretary, the court may, if all other requirements of subregulation (1) are satisfied, register the order.

4. Since the wording of Regulation 23(6) is discretionary, it would be necessary for evidence to be adduced to support any contention that it was appropriate for the orders to be registered.

5. It would also be necessary for the Court to be satisfied that there was some utility in the registration.

6. No such evidence had been adduced here.

7. The State B orders make provision for the applicant and the respondent, jointly, to have custody of Z and to have all of the rights and responsibilities of parenthood.

8. The application falls to be determined pursuant to the provisions of s117(2A) of the Family Law Act 1975 (Cth) which provides:

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a) the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f) 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; and

   (g)  such other matters as the court considers relevant.

9. The relevant provisions will be considered seriatim.

The financial circumstances of each of the parties to the proceedings;

1. The applicant relies on an affidavit prepared on his behalf and a financial statement.

2. The applicant is not in paid employment. He is a full time parent of Z.

3. He has a financial portfolio which he estimates to have a net value of $2,660,000. This includes real property he owns in Sydney and in Country D, with an estimated net value of $2,560,000.  He has $100,000 in the bank.

4. The applicant earns $48,880 per annum by way of income from investments.

5. The respondent swore a financial statement. He deposed to an income of $2,700  per week or $141,400 per annum from which he supports himself and contributes to the support of his mother.

6. The respondent deposed to a share portfolio estimated to be worth $170,000 and to having $15,131 in the bank.

7. The respondent owes $22,673 in legal costs.

8. Each of the parties is in a strong financial position.

The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

1. The applicant, in his submissions, relies on the fact that the respondent’s material was filed late.

2. I do not consider that matter to be relevant.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings; 

1. The respondent withdrew his application in a case seeking registration of the State B orders.

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;

1. I have not been made aware of any offers.

2. In Hawkins & Roe (2012) 476 Fam LR 526, the Full Court, dealing with an application for costs in a parenting case, stated:

   [13] In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

   [14] In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

   Their Honours further stated at 549:

   [146] While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father’s conduct of his case at the trial. Counsel for the mother conceded in oral submissions before us that at no point during the trial did his Honour direct the father to cease repetitive questioning, or to move his questioning more quickly, for example.

   [147] While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

3. I do not consider that the application to register the State B orders falls into the categories described by their Honours in Hawkins & Roe and I am not persuaded that any of the matters I have considered pursuant to s117(2A) justifies the making of an order for costs.

4. Accordingly, it is not necessary to consider whether indemnity costs are appropriate.

5. The application for costs will be dismissed.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 October 2019.

Associate:

Date: 3 October 2019