Wileman and Churchill (No.4)
[2017] FCCA 2555
•13 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILEMAN & CHURCHILL (No.4) | [2017] FCCA 2555 |
| Catchwords: FAMILY LAW – COSTS – Application by the mother for indemnity costs following a contested parenting matter which resulted in a no time order – implications of the father denying allegations of family violence. |
| Legislation: Family Law Act 1975 (Cth), s.117 |
| Cases cited: Browne & Greene (2002) 29 FamLR 428 Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 Doherty & Doherty (1996) FLC 92-652 |
| Applicant: | MS WILEMAN |
| Respondent: | MR CHURCHILL |
| File Number: | NCC 2771 of 2013 |
| Judgment of: | Judge Terry |
| Hearing date: | 12 December 2016 |
| Date of Last Submission: | 12 December 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 13 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lloyd |
| Solicitors for the Applicant: | Bridge St Lawyers |
| Counsel for the Respondent: | Mr Davies |
| Solicitors for the Respondent: | YJP Solicitors |
ORDERS
The father shall within 3 months of the date of these orders pay the mother’s costs of and incidental to the parenting proceedings fixed in the sum of $20,000.00.
Each party shall bear their own costs of and incidental to the costs application.
The mother’s application for costs contained in her amended application filed on 31 May 2016 is otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wileman & Churchill (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2771 of 2013
| MS WILEMAN |
Applicant
And
| MR CHURCHILL |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Wileman (“the mother”) seeks an order that Mr Churchill (“the father”) pay her costs of and incidental to parenting proceedings which resulted in orders that she have sole parental responsibility for the parties child X and that X live with her and spend no time and have no communication with the father.[1] She seeks costs on an indemnity basis fixed in the sum of $92,738.91 and an order that a charge be placed on two real properties owned by the father to secure payment.
[1] Churchill & Wileman (No.2) (2016) FCCA 107
The father seeks dismissal of the mother’s application and an order that she pay his costs of and incidental to the application.
The costs application was originally filed on 8 March 2016. Resolution of the application was delayed because the father’s solicitor then applied for leave to issue 13 subpoenas. The mother’s solicitor opposed leave being granted and that application was the subject of argument.
In a decision handed down on 7 September 2016, I refused the father leave to issue the subpoenas[2] and the costs application was adjourned to 12 December 2016 for submissions.
[2] Churchill & Wileman (No.3) (2016) FCCA 2596
After hearing submissions I reserved my decision and I apologise to the parties for the delay in the delivery of the decision.
Documents relied on
The mother relied on her amended application in a case filed on 3 May 2016, her affidavits filed on 4 May 2016 and 30 May 2016, her amended financial statement filed on 15 June 2016 and the affidavits of her solicitor Karen Rands filed on 8 March 2016 and 3 May 2016.
The father relied on his response filed on 31 May 2016, his affidavit and financial statement filed on 31 May 2016 and the affidavits of his parents Mr M & Ms L filed on 31 May 2016.
Both counsel filed written submissions which they relied upon at the hearing on 12 December 2016.
Both counsel set out in their written submissions objections to material in the affidavits filed by the other party, mainly but not exclusively in connection with the evidence about the other party’s financial situation. The mother’s counsel’s submissions contained pages of objections to various matters in the father’s material on the basis of “relevance”, “form”, “no foundation” and “not particularised”.
I do not intend to rule on the objections because it would serve no purpose.
The matters which will inform my decision are mainly the findings I made in my substantive decision and consideration of the law and copious objections to material in affidavits filed for the costs proceedings on the basis of relevance, form, lack of foundation or lack of particularisation were not warranted.
I will need to consider the evidence the parties have provided about their financial circumstances but this is not a property case, it is a costs dispute. It was never intended that there be cross-examination on 12 December 2016 and regardless of whether objections are allowed or ignored, there are limits to findings I will be able to make about the parties financial circumstances where there is a dispute.
Background
The mother and father had a short relationship and separated in August 2012 when their only child X was 8 months old.
Immediately after separation the father was charged with domestic violence offences as a result of incidents which occurred close to the time of separation. He pleaded guilty in October 2012 and in December 2012 he was placed on a two year good behaviour bond subject to conditions and a 12 month ADVO was made for the mother’s protection.
During 2013 there was negotiation between solicitors around the issue of the father spending supervised time with X but nothing eventuated and in November 2013 the father filed an application seeking parenting orders. He sought interim orders for X to forthwith commence spending time with him and on a final basis he sought orders for time to gradually increase to the point where X was living in an equal time arrangement.
In her response filed on 25 November 2013, the mother sought interim orders that the child spend no time with the father and that the father enrol in and complete a perpetrators course, an anger management course and some other courses and provide evidence to the mother that he had done so. On a final basis she proposed that the child spend time with the father as ordered by the court.
I conducted an interim hearing on 10 April 2014 and made an order inter alia that the father spend no time with X pending a final hearing.[3]
[3] Churchill & Wileman [2014] FCCA 1047
The central issue in the case was the nature and extent of the family violence perpetrated by the father. The mother claimed that the violence had been extensive and controlling and coercive in nature and that X had been adversely affected by it. The father said it had been limited to the matters to which he had pleaded guilty and had arisen out of the fact that he was pushed too far and snapped. He said that X had been too young to be affected by anything which had occurred.
To assist in resolution of the matter an expert report was ordered and it was prepared by Ms A, a clinical psychologist. The report was released to the parties on 29 September 2014 and Ms A’s recommendations were as follows:
X should live primarily and permanently with Ms Wileman;
Ms Wileman should have sole parental responsibility for X;
X should be seen by a paediatrician or specialised clinical psychologist for an assessment of ASD and recommendations regarding intervention;
Should the Court consider that the risk of harm to X is not appreciable if there is irregular and supervised contact, then X should spend time with Mr Churchill at a formal contact centre four times per year for the purpose of identity formation;
Should the Court consider that the risk of harm to X is appreciable if there is even supervised and irregular contact, then X should not spend any time with Mr Churchill until the age of 15 years OR if Mr Churchill engages in long term treatment for family violence. At that time, X may choose to engage in supervised contact at a formal contact centre four times per year;
Mr Churchill and Ms K [the father’s partner] should sign undertakings that they do not make any contact with X that is not authorised by the Honourable Court;
Mr Churchill should engage in long term therapy (12 – 24 months) targeted at anger management and family violence. This should be Court ordered, reportable and undertaken by a specialist in family violence. The clinician should be provided with a copy of the report.
On 18 December 2014 the matter was listed for hearing for five days commencing on 13 July 2015.
On 19 December 2014 the mother filed an application in a case seeking an interim order permitting her to relocate. On 22 January 2015 she filed an amended application seeking final orders that the father spend no time with and have no communication with X and that she be permitted to relocate from (omitted) to the (omitted) area.
After this and notwithstanding that the matter had been listed for final hearing in July 2015, the mother pressed for her interim application to be heard. I conducted an interim hearing on 9 March 2015 and dismissed the application which was opposed by the father.
The final hearing commenced on 13 July 2015 and concluded on 17 July 2015.
At the commencement of the final hearing the orders sought by the father were that the parents have equal shared parental responsibility and that X commence spending time with him, supervised at first but moving rapidly to substantial and significant unsupervised time. He said that it was his preference that once X commenced school he live in a week about arrangement and he opposed the mother relocating.
Part way through the hearing the father changed his position significantly. He consented to an order that the mother have sole parental responsibility and he ceased to oppose the relocation. He said that he would consent to orders that he undergo therapy targeted at anger management, family violence and alcohol abuse and would take part in education about autism. He proposed that once he completed those interventions then subject to X’s paediatrician saying anything to the contrary, he would commence spending supervised time with the child. He also sought an order that he be permitted to send X letters, cards and gifts and have Skype communication with him on not more than 4 occasions each year.
The mother continued to seek an order for no time and no communication and for the reasons set out in my judgment dated 9 February 2016, those were the orders ultimately made.
In my judgment I set out the factual issues which I needed to determine as follows:
a)Whether the father had subjected the mother to frequent, serious and on occasion terrifying violence for much of their relationship as she alleged or whether the violence occurred on only three occasions at the end of the relationship and then only to the extent the father admitted during the hearing.
b)Whether the father had been violent in other relationships and had a serious anger management problem or whether violence had erupted only in the context of this particular relationship when a generally peaceful man was pushed too far.
c)Whether the father had an alcohol problem.
d)The extent to which X was exposed to family violence and whether his behavioural problems were due to him suffering from Autism Spectrum Disorder (ASD) or were the result of him having suffered Developmental Trauma.[4]
[4] Churchill & Wileman (No.2) [2016] FCCA 107, Paragraph 11
My findings (on the balance of probabilities) about the first issue were as follows:
a)The father subjected the mother to verbal abuse and denigration for almost the entirety of their relationship.
b)He had temper outbursts which resulted in him throwing things at the mother, screaming at the mother and damaging property.
c)He physically assaulted the mother on all the occasions she described. On each occasion the assault was serious and the mother suffered injuries including bruising, grazing, swollen lips, strained shoulders and pain in her lower back and elbow and as time went by began to fear for her life.
d)After losing his temper he drove in a reckless manner at high speed which terrorised the mother.
e)He engaged in a campaign to terrorise the mother on 1/2 September 2012 by entering her home, smashing things in the office and hooning on the property in two different motor vehicles. His behaviour resulted in the mother’s motor vehicle being damaged and the mother fleeing the home with X and hiding behind a tree waiting for the police to arrive.
f)He showed the same propensity during text messages he exchanged with the mother following the end of the relationship to lapse into verbal abuse whenever he felt frustrated or upset.
I did not accept the father’s evidence that the mother subjected him to emotional abuse and I accepted the evidence of a former partner of the father’s about incidents which occurred during their relationship.
I was satisfied that the father drank heavily during his relationships with both the mother and the former partner but found that the father’s major problem was anger and violence not alcohol abuse.
I was satisfied that X had been exposed to family violence during the relationship between the mother and the father and I accepted the evidence of Dr V that X had symptoms of severe developmental trauma which manifested itself by the child displaying autistic like behaviours.
In the conclusion to my judgment I discussed the complexities of cases involving family violence and held that in light of my findings about the factual issues and my findings about the s. 60CC(2) & (3) matters, it would not be in X’s best interests for him to spend time with or communicate with the father and I made orders accordingly.
The parties positions about costs
The essence of the mother’s case was that a costs order should be made in her favour because she had been wholly successful both in obtaining the orders she sought (sole parental responsibility, live with the mother, spend no time with and have no communication with the father and the right to relocate) and also in respect of the issues of the extent and nature of the family violence perpetrated by the father, whether he had been violent in an earlier domestic relationship and whether X had suffered development trauma.
Achieving this outcome had cost the mother, who was by no means wealthy and who had done nothing wrong, money she could not afford to lose her, justifying a costs order, and her counsel also submitted that:
….the court has the opportunity to send a message to the public in general that it will not tolerate litigants pursuing issues that ultimately have no hope of success, and that to do so an order for costs against that litigant is a very live option for the court.[5]
[5] Applicant Mother’s Reply to the Respondent Father’s submission as to costs paragraph 68
The father’s case was that while he may have been wholly unsuccessful as to the outcome it had not been unreasonable, even in the light of the findings about the issues, for him to run a case that he should be able to spend time with and communicate with his son. He had incurred his own substantial legal costs trying to achieve this outcome and he was not in a strong financial position either and the court should not depart from the position that each party should bear their own costs.
The father’s counsel did not address the implications of the father’s unsuccessful denial of having committed extensive acts of family violence and of having been violent to a former partner and his refusal to accept that X had suffered developmental trauma.
The applicable law
S. 117 (1) of the Family Law Act provides that each party to proceedings under the Act shall bear their own costs. However s.117(2) provides that the court may make a costs order if in the opinion of the court there are circumstances which justify it in doing so.
The father’s counsel submitted that it was relevant that this was a parenting case and referred me to following passage from Hawkins & Roe where May & Ainslie-Wallace JJ said as follows:
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.
May & Ainslie Wallace JJ went on to say:
Whilst 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.
A differently constituted Full Court in Wrensted & Eades, a case which involved an appeal from a decision of Walters J in which he made a costs order against the father in a parenting case,expressed concern about the above passage from Hawkins & Roe and said as follows:
The examples given by the majority of circumstances in which a costs order may be made and their statement that in such circumstances “a judge may well conclude that there are circumstances justifying an order for costs” does not fetter the wide discretion reposing in the trial judge as long as they are seen as examples rather than requirements. However if the majority in Hawkins & Rowe, by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion (Nguyen v Nguyen 169 CLR 245 at 268-270; Gett & Tabet (2009) ALR 504 at [261]-[301] especially at [294]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 per Heydon J at [84] and [85]; F Firm & Ruane and Ors (2014) FLC 93-611) at [163].[6]
[6] Wrensted & Eades [2016] FamCAFC 46
In summary, parenting cases are not a separate category of case when it comes to determining a costs application. All the court needs to be satisfied of before making a costs order in any case is that there are justifying circumstances; it does not need to be satisfied that there is a “clear case” or that there are “special circumstances” or that the case has “particular features”.
The s. 117(2A) matters
To determine whether there are justifying circumstances, I must have regard to the matters in s.117(2A) and the first is the financial circumstances of each of the parties to the proceedings.
The mother filed a financial statement on 15 June 2016 in which she said that her estimated income from her business was $66,300.00 per annum and her estimated income from salary and wages was $5,200.00 per annum, a total of $71,500.00.
The mother said that she had non-superannuation assets to the value of $231,305.14 and superannuation of $20,541.30 and that she owed $28,000.00 for legal fees in connection with the costs application, $3,000.00 to Legal Aid for her contribution to the costs of the Independent Children’s Lawyer and $77,087.11 on various credit cards.
It was the mother’s case that her financial position was much poorer even than the above might indicate because while her business appeared to have a positive value in her financial statement it actually had a negative value.
I cannot place weight on this bare assertion by the mother.
The mother asked the court to take into account that she did not receive child support but I noted in the parenting judgment that the mother had told the Child Support Agency that she did not wish to obtain child support and in those circumstances, I do not consider that non-payment of child support is something which I can hold against the father.
The father also gave an estimate of his income based on business income and income from employment which revealed a modest income and his evidence about assets and liabilities suggested he had only modest net assets.
The father said that he had paid his own legal fees of $104,161.00 and that he owed his father and mother $30,000.00 and $33,000.00 respectively because they had withdrawn money from their superannuation funds to assist him to pay his legal fees. He maintained and his parents confirmed that they would require him to repay them.
The father said he simply did not have the means to meet a costs order.
Each counsel was critical in submissions of the financial information provided by the other party. However in the absence of cross-examination and tender of documents, it is impossible for me to make a finding about exactly where the truth lies about each party’s income, expenditure, assets and liabilities. I cannot be satisfied on the state of the evidence that one party is in a considerably stronger financial position than the other. The overall flavour of the evidence is that neither party is a high income earner and that neither is asset rich. This is certainly not a case where the father is in such a strong financial position compared to the mother that this alone might justify a costs order.
I observe however that I do not need to be satisfied that the mother is hard up before making a costs order nor does the fact that the father may be hard up mean that a costs order cannot be made against him.
I must consider whether any party is in receipt of legal aid; neither is and neither has been.
I must consider 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, direction to answer questions, admissions of facts, production of documents and similar matters.
The mother’s counsel submitted that the father’s conduct in changing his position on the third day of the trial to the effect he consented to orders that the mother have sole parental responsibility and be permitted to relocate was a relevant consideration.
I do not accept that it has any great relevance. The factual matters which consumed a large amount of hearing time would still have had to be ventilated even if the father had made these concessions at the outset, and I agree with the submission by the father’s counsel that there was nothing to suggest that the father’s positions about relocation and parental responsibility were taken simply to cost the mother money and cause her difficulty.
The father’s counsel went on to submit and I accept that the father should be given credit for changing his position about the relocation after hearing the evidence of Dr V about X’s condition, remembering that the mother’s case for relocation was that it would enable her to enrol X at a particular institution designed to assist children who had suffered Developmental Trauma.
The mother’s counsel submitted at some length that if the father had been serious about trying to obtain the orders he sought or opposing the orders sought by the mother, he should have obtained his own expert evidence about X’s condition and that his not doing so was conduct going to the issue of costs. If I understand this correctly, he was submitting that it was unreasonable of the father to either run the case at all or to challenge Dr V’s evidence when he had not obtained expert evidence of his own.
I do not accept that this is a valid criticism. If the father had called alternative expert evidence it would have greatly added to everyone’s costs and I do not accept that because the father did not obtain his own expert evidence that he was not entitled to run his case for time with X or test Dr V’s evidence about whether the child had suffered developmental trauma.
Finally the mother’s counsel submitted that it was a relevant conduct issue that the father had refused to make admissions about his perpetration of family violence and had run a case that much of the mother’s evidence about this was fabricated or exaggerated and that insofar as he had committed acts of family violence, there were exculpatory circumstances.
This is a relevant matter. The father chose to run a case that the family violence occurred only at or about the time of separation and insofar as it occurred was not coercive or controlling in nature but occurred because he snapped under provocation. The testing of the mother’s evidence and Ms S’s evidence about family violence and the testing of the father’s about the issue took up a substantial amount of time at the trial and the mother was completely vindicated.
In saying that this is a relevant matter. I am conscious of the fact that the vast majority of cases decided by this court involve some dispute about factual matters and it is unusual for costs to be awarded because of success or lack of success about discrete factual issues.
Factual disputes can be about any number of things and sometimes the real problem is not that one person is telling the truth and the other is not but that the parties have different perceptions of the significance of events bearing on the factual issue which has led them to draw different conclusions. A dispute about the date of separation may fall into that category.
On other occasions it is clear that one party’s version of events cannot be correct, for example where there is an allegation and a denial that a threat to kill was made in a conversation several years ago. Sometimes the court can resolve such a dispute and sometimes it can’t, but it does not necessarily follow if the dispute is resolved in favour of the person asserting that the event occurred that the other party has been deliberately untruthful. They may for a variety of reasons simply not recollect the event.
Sometimes in family violence cases there are factual disputes about whether violence has occurred but the allegations are not extensive and resolving the disputes takes up very little court time at the hearing. Sometimes in the context of a particular case, resolving the disputes is not central to the ultimate decision the court has to make.
It would not be appropriate in any of those situations to consider making a costs order against the party whose version of events was rejected and I am troubled by the suggestion by the mother’s counsel that any decision I make about costs in this particular case should be motivated in part by a desire to send a message to litigants about the risks of pursuing “issues which have no hope of success” whatever that may mean.
However in this particular case the issue of the extent of the violence and whether it was coercive and controlling violence was central to the whole case, hearing and testing evidence about the issue took up a large amount of trial time and 25 of the 59 pages of my decision were devoted to this issue.
The father at his peril made blanket denials and gave exculpatory evidence and he was wholly unsuccessful in respect of the issue and this will have a bearing on my decision about the mother’s costs application.
I must consider whether the proceedings were necessitated by the failure of a party to the proceedings to comply with an order of previous orders of the court; that is not a relevant consideration in this case.
I must consider whether any party to the proceedings has been wholly unsuccessful in the proceedings.
The mother obtained the orders she sought and the father was wholly unsuccessful in the proceedings.
I must consider whether any party to the proceedings made an offer in writing to the other party to settle the proceedings and the terms of any such offer.
The mother’s solicitor sent a letter to the father’s solicitors on 6 July 2015 proposing that the matter be resolved on a basis similar to the orders ultimately made. Her counsel submitted that the fact that the father failed to heed a reasonable offer was a relevant matter when considering whether costs should be awarded. Had the father acceded to the proposal, the five days of hearing and perhaps some preparation for trial, the matter would have been avoided.
The decided cases say that the rejection of an offer of settlement in circumstances where there is sufficient information to make it imprudent for the offer to be rejected is a matter which should be given weight in deciding whether costs should be ordered.[7] However this was a parenting matter in which the extreme outcome of “no time” was proposed by the mother and it is not an outcome which automatically follows simply because family violence is established even to the extent the mother asserted. At the end of my decision I set out in some detail the complexity of cases involving family violence and how different combinations of facts can result in different outcomes, and I have made similar observations in other cases.[8]
[7] Robinson & Higginbotham (1991) 14Fam LR 559, Browne & Greene (2002) 29 FamLR 428
[8] Hargraves & Ivory [2017] FCCA 816
I am not persuaded that the father’s failure to accept an offer to settle on the basis that he have no time and no communication with his child is something which should weigh against him in determining the costs application.
I must consider such other matters as the court considers relevant.
After the mother brought her costs application but before it was finally heard, the father’s counsel raised the issue that after the final orders were made the mother did not relocate to the (omitted) area as she had proposed and did not enrol X at the facility in (omitted) referred to during the hearing which she had said was the most suitable facility to treat children who had suffered developmental trauma but instead relocated to Queensland and enrolled X in a facility suitable for treating autistic children.
It was the father’s case that this gave the lie to the mother’s case that X had suffered developmental trauma and that (for some unexplained reason) it invalidated her whole claim for costs.
I do not consider that the implication the father’s counsel pressed for can be drawn from the mother’s post separation actions nor do I consider that her post separation actions are in any way relevant to the costs application.
The orders made on 9 February 2016 gave the mother sole parental responsibility and relocation was referred to only in a notation to the orders. The father did not appeal my decision and he has never brought a fresh application asking the court to reconsider the orders based on fresh evidence allegedly casting doubt on the mother’s claim that X suffered developmental trauma.
The mother’s actions do not necessary undermine her case in any event. I noted in my judgment Dr V while being of the view that X had suffered developmental trauma referred to the fact that the symptom of developmental trauma may mimic the symptoms of autism. I cannot conclude that the mother has acted in a way which renders Dr V’s view invalid and that treatment which assists an autistic child would not assist X.
Finally, I did not make a no time order because X had suffered developmental trauma. I made it for all of the reasons referred to in the conclusion to my decision.
Conclusion
Nothing in the financial circumstances of the parties alone suggests that a costs order should be made. The mother has a relatively modest income and relatively modest assets but the father’s position is similar.
The father was wholly unsuccessful as to the outcome which in some circumstances might justify a costs order but as I observed in the conclusion to my judgment whether an order is made for a child to spend time with a parent in a case where there is established family violence involves complex considerations which vary from case to case. It is not usually the case that the mere fact that findings of family violence of a particular kind or severity are made means that a no time order automatically follows.[9]
[9] Churchill & Wileman (No.2) (2016) FCCA 107
It is relevant to note that in the case outline document filed by the Independent Children’s Lawyer on the first morning of the hearing the Independent Children’s Lawyer expressed a preliminary view that the mother should have sole parental responsibility and the child should live with the mother and that she should be permitted to relocate. However the Independent Children’s Lawyer went on to say that:
The nature and the extent of any contact between the father and the paternal family [and the child] is an issue to be determined after close of evidence.
I cannot conclude that it was unreasonable for the father to run a case seeking orders that X spend time with him. I cannot blame the father for testing the evidence of Dr V about developmental trauma. I cannot blame him for calling his current partner and members of his family to give evidence about his nature and his propensities according to them. This evidence would have been relevant even if he had made admissions about the extent of his conduct to the mother and to Ms S.
However it is relevant that the father chose to deny the majority of the extensive family violence allegations made by the mother and the allegations made by Ms S about violence in that relationship.
A good deal of the mother’s trial affidavit was taken up with setting out her evidence in that regard and an affidavit had to obtained from Ms S and testing all that evidence and testing the father’s evidence took up a good deal of time at the trial. Consideration of the family violence issue took up 25 pages of my 59 page judgment.
Whether it is treated as a conduct issue or whether it is simply considered a relevant matter, I am satisfied that the father’s decision to contest the family violence evidence justifies a costs order being made against him.
However it does not justify an order that the father pay the mother’s costs of the entire proceedings either in the amount she sought or at all and determining an amount the father should pay is challenging.
I could make an order that costs be taxed or be as agreed but these parties are not going to agree and the last thing they need is to be referred to taxation.
An option open to me would be to order that the mother receive a percentage of the costs she claimed in her application based on some assessment of how much time the determination of the family violence issues took during the proceedings. The difficulty with using the mother’s claim as a baseline however is that the mother sought costs on an indemnity basis and I do not accept that this is a case where indemnity costs should be considered.
Courts can if they choose award costs on an indemnity basis, in other words can require the other party to pay all of the costs the successful party has actually spent to achieve their desired outcome, and that may be perceived as eminently fair by a party who has paid their solicitor’s costs at a rate which is in line with costs charged by other solicitors but above the rate recognised as reasonable in court scales and who does not consider that they have asked their solicitor to perform unnecessary work. However costs are usually awarded on a party/party basis and in Colgate-Palmolive v Cussons Pty Ltd Sheppard J expressed the view that to before an order was made for indemnity costs there would need to be:
Some special or unusual feature in the case to justify the court in departing from the ordinary practice.
In Prantage & Prantage the Full Court was considering the issue of whether indemnity costs should be awarded in a family law matter and referred extensively to the decision of Cooper & Merkel JJ in Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151. Cooper & Merkel JJ said as follows:
The issue whether costs should be ordered on a party and party basis or on an indemnity basis has acquired increasingly greater significance as the gap between the two bases appears to have grown.
The gap has highlighted the conflict between two seemingly irreconcilable objectives. The first is protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis. The second is relieving a successful litigant from the burden of costs which that litigant should not have been required to incur. These and other policy factors have been considered by the courts over a very long period in order to arrive at the principles which govern the undoubted discretion of courts to depart from ordering costs on a party and party basis and ordering costs on an indemnity basis. The principles were stated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
The case before me does not have any special or unusual features which would justify an order for indemnity costs. It was not a case where there had been repeated litigation, or where the father filed prolix and unnecessary affidavits, or where as in Wrensted & Eaves the father put residence of the child in issue after the mother sought to live overseas with the child for a period of about nine months and after putting the mother to the expense of meeting that case retreated at trial to arguing the discrete issue of the limited overseas residence.
The case before me was a parenting case which shorn of all complexity involved the father seeking time with his child. To determine the case it was necessary to determine the extent to which the father had perpetrated family violence and the nature of the violence and determine whether the child had been affected by exposure to the violence but the findings I made about those issues still needed to be weighed and balanced with other evidence in the case and with my findings about the s.60CC (2) & (3) matters in order to arrive at an outcome. As I discussed at the end of my judgment, cases involving family violence are complex and this was not a case where the father pursued his case in wilful disregard of established law or known facts.
An additional reason to be concerned about ordering indemnity costs in this case is that it would require the father to pay for the work involved in the mother obtaining affidavits from numerous witnesses whom she did not call at trial namely Ms R, Ms K, Ms C, Mr A, Ms J, Ms S and Mr C. It would be unjust to require the father to pay for these spending choices by the mother.
Another problem with a claim for indemnity costs in relation to the entire proceedings and indeed with a blanket claim for costs at whatever rate for the entire proceedings, is that the mother was unsuccessful in respect of several interim applications namely her applications for the removal of the Independent Children’s Lawyer, her request for some of her witnesses to give evidence by telephone and her application to relocate on an interim basis. There is no merit in the suggestion that the father should pay the mother’s costs in respect of those applications.
Not only was the father’s position in respect of each of these applications reasonable, on 30 May 2014 when the mother’s application for discharge of the Independent Children’s Lawyer was dismissed, an order was made reserving the father’s costs and on 9 March 2015 when an order was made dismissing the mother’s interim application to relocate the father’s costs were again reserved.
This is not a case for indemnity costs which makes using the mother’s total legal costs as a starting point problematic.
The other alternative would be to make an attempt to calculate the costs to which the mother would have been entitled pursuant to the scale in the Federal Circuit Court Rules and make an order that the father pay the mother a percentage of those costs.
Given the length of time the matter was in the court system and the number of directions hearings, this would require a considerable amount of work on my part and I could not be sure I had it exactly right. I have no readily accessible record of how long the parties were at court on a particular day for a directions hearing or even for an interim hearing for example.
Another option would be to ask the mother’s solicitors to do the calculation and then call the matter back on for further submissions about the quantum of the costs order. That is not attractive as it would require the mother to incur further costs and lead to further delay in finalisation of the matter.
Doing the best I can and endeavouring to provide some transparency, I intend to start by reducing the total amount claimed by the mother to 35%, to allow for the difference between the costs claimed and the costs usually allowed for in court scales, the fact that the father was successful in respect of several interim applications and the fact that the mother did some unnecessary preparation in terms of obtaining affidavits from witnesses who were never called.
That reduces the costs to $60,280.30.
I intend to order that the father pay 33% of this amount given the extent of time taken up at trial in establishing the nature and extent of the family violence. This gives a figure of $19,892.49 which I intend to round to $20,000.00.
I am conscious of the fact that the order I have made is very different to the order sought by the mother and that the father had no notice that a costs order may be made a different amount or that I might calculate costs in this way. However as Kay J said in Doherty & Doherty:
I am satisfied that it was open to the trial Judge to make the order for costs which he made, although it may not have been in the terms which the respondent actually sought, or in the terms which the appellant considered an order may have ultimately been made. However, the fact remains that His Honour considered the submissions of both parties and considered all relevant factors. I am not persuaded, following the authority of the High Court in Penfold’s case, that any error has been demonstrated. I would also, therefore, dismiss the appeal in relation to the question of costs.[10]
[10] Doherty & Doherty (1996) FLC 92-652
I then need to consider whether any order should be made as the mother sought (or at least seemed to seek) that the father pay her costs of and incidental to the costs application.
According to the mother’s financial statement, she had incurred legal fees of $28,000.00 in respect of the costs application by June 2016.
This seems extraordinarily high given that two years of litigation over parenting which included several interim applications and a five day trial resulted in her incurring legal costs of only $92,000.00 and I could not consider awarding the mother anything like that.
I have concerns about the level of servicing of the mother’s costs application caused not only by this bill but by things such as the excessively lengthy and repetitive written submissions (29 pages plus 12 pages) prepared by her counsel and his attendance in person at a circuit location for a brief mention of the matter, which suggests a possible lack of focus by the mother’s legal team on the need to make forensic decisions about what was necessary and what was unnecessary.
I could if I was minded to do so, endeavour to fix costs using the scale in the schedule to the Federal Circuit Court Rules but the mother has been only partially successful and I do not intend to make an order that the father pay the mother’s costs of and incidental to the costs application.
The father has only been partially successful in opposing the application and I do not intend to make a costs order in his favour.
I intend to give the father three months to pay the $20,000.00 which in my view is a reasonable amount of time to allow him to organise his affairs and take steps to obtain the funds.
In her amended application for costs, the mother sought an order that a charge be placed on the father’s real properties to secure payment of any costs order made against him. Her counsel did not address this issue in his written submissions and no basis for making such an order has been demonstrated. If the money is not paid in accordance with my order, the mother will need to take enforcement proceedings.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 13 November 2017
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