Woodall & Woodall
[2022] FedCFamC1F 464
Federal Circuit and Family Court of Australia
(DIVISION 1)
Woodall & Woodall [2022] FedCFamC1F 464
File number(s): PAC 6082 of 2020 Judgment of: HANNAM J Date of judgment: 20 May 2022 Catchwords: FAMILY LAW – COSTS – Where the mother seeks costs in respect of an application for review of a registrar’s decision to appoint a single expert – Where the mother contends the application for review was baseless and discontinued by the father at the time of hearing – Where the father opposes the mother’s application for costs – Where the father seeks costs in response to the mother’s costs application – Where the father contends that his application was at no time discontinued – Where the father contends the purpose of his application was to ensure the parties did not prematurely attend upon the expert – Where the application was resolved by orders made with the consent of the parties – Where the father’s application was ultimately successful – Where there are no circumstances that justify departing from the usual rule that each party shall bear his or her own costs – Where each application for costs is dismissed Legislation: Family Law Act 1975 (Cth) s 117
Family Court Rules 2004 r 15.45
Cases cited: D & D (Costs) (No.2) (2010) FLC 93-435
Penfold v Penfold (1980) 144 CLR 311
Division: Division 1 First Instance Number of paragraphs: 57 Date of last submission/s: 13 November 2021 Date of hearing: 17 September 2021 Place: Parramatta Solicitor for Applicant: KF Lawyers Solicitor for Respondent: Rafton Family Lawyers ORDERS
PAC 6082 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WOODALL
Applicant
AND: MR WOODALL
Respondent
order made by:
HANNAM J
DATE OF ORDER:
20 May 2022
THE COURT ORDERS THAT:
1.The mother’s application for costs in relation to the application for review of a registrar’s decision filed by the father is dismissed.
2.The father’s application for costs in response to the mother’s application for costs 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 the pseudonym Woodall & Woodall 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 two applications for costs made by each of the parties (“the mother” and “the father”) involved in a parenting dispute. The first is an oral application for costs made on behalf of the mother that the father pay her costs on an indemnity basis in relation to an application for review of a registrar’s decision filed by him on 8 July 2021. The father in response, seeks that the mother’s cost application be dismissed and that he be awarded costs in a fixed amount in respect of preparation of submissions in response to the mother’s costs application.
The proceedings between the parties concerning the future parenting arrangements for their two young daughters (“the children”) has a complex history, including previous proceedings in the NSW Children’s Court following the mother being charged with certain criminal offences.
In July 2021 the father filed an application for review of a registrar’s decision to appoint a single expert. That application was heard by me on 17 September 2021 where it was ultimately resolved by orders made with the consent of the parties.
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 in relation to the review and subsequent costs application.
background
The mother and father commenced a relationship in 2011 and were married the following year.
The parties’ eldest daughter was born in 2013 and is now aged nine. The parties’ younger child, a daughter aged seven, was born in 2015.
In addition to the two children who are the subject of these proceedings, the mother has three older children from a previous relationship now aged 16, 17 and 19.
In early 2018 the Department of Communities and Justice (“the Department”) received a risk of significant harm report that the mother had been sending text messages to an adult male containing sexual fantasies involving herself, the adult male and her eldest daughter from her previous relationship. This notification caused the Secretary of the Department to assume care of all five of the mother’s children and place the children of these proceedings in the father’s care. At around this time an Apprehended Domestic Violence Order (“ADVO”) was made against the mother for the protection of her eldest daughter.
Soon after the risk of significant harm report was received by the Department, the mother was charged by police with the offence of using a carriage service to transmit child pornography (“the criminal charge”). The mother subsequently pleaded guilty to that charge.
The parties separated on a final basis at this time in early 2018.
In early 2018 care proceedings were commenced in the Children’s Court due to risk issues arising from the mother’s conduct.
In early 2019 the mother was convicted of the criminal charge in the District Court of NSW and was sentenced to a two year suspended sentence pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). At this time the mother was also placed on the Child Protection Register.
In mid 2019 final care orders (“final care orders”) were made in the Children’s Court allocating parental responsibility jointly between the father and relevant Minister for a period of 12 months, and for the father to hold sole parental responsibility following the expiration of the 12 month period. The Court also accepted an undertaking from the father which prevents him from permitting the mother to reside with the children or spend any unsupervised time with them until they each reach the age of 18.
Following the final care orders being made, the children spent supervised time with the mother one day per week and communicated with her by video call two to three times per week.
In July 2020 the father reduced the children’s time with the mother to one day per month.
The mother filed an Initiating Application in the Federal Circuit Court (as it is was then known) in November 2020 seeking orders that the parties have equal shared parental responsibility for the children and that they live with her and spend defined time with the father.
In December 2020 the father filed a Response noting that he holds sole parental responsibility for the children pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) seeking orders that the children live with the him and spend supervised time with the mother once per month and on special occasions.
The mother was charged in early 2021 with breaching the ADVO by contacting the eldest daughter of her previous relationship and with breaching her Child Protection Register conditions. The later charge was subsequently withdrawn and at the time of hearing of the review application, the breach of ADVO charge was listed for a defended hearing in late 2021.
Due to the complex nature of the proceedings, the matter was transferred to the Family Court of Australia (as it was then known) in February 2021.
In April 2021 the family were interviewed by a family consultant for the purposes of the Child Responsive Program. In the Child Responsive Program Memorandum (“the Memorandum”) written by the family consultant and released in July 202[1] it was recommended that a single expert be appointed and a report obtained for the purposes of the proceedings which focuses on the risk of the mother reoffending, her functioning as a parent and amongst other things the benefits and losses to the children if there were to spend more, less, or no time with the mother.
At a court event before a Registrar following the release of the Memorandum it was noted that with the exception of two recommendations relating to drug and alcohol testing, the parties accept all other recommendations made by the family consultant. At that court event an order was made that each party was to serve upon the other and have available at the next court date, the curriculum vitae of a proposed suitably qualified expert, the costs schedule of the expert and a proposed Minute of Order for the appointment of the expert and the terms of that appointment.
On 1 July 2021 an order was made by the registrar appointing a single expert (“the single expert”) pursuant to rule 15.45 of the Family Court Rules 2004 but the registrar deferred making the terms of the appointment to be made in chambers on a later date. Other orders made by the registrar on that date provided for each party to pay a sum of money into the trust account of Legal Aid NSW and for each party to attend to the payment of the single expert’s fees in equal shares.
On 8 July the father filed an Application in a Case seeking a review of the orders made by the registrar for the appointment of the single expert. That application was heard by me on 17 September 2021 by video link due to restrictions then in place related to the COVID-19 pandemic.
The review hearing
During interchange between the bench and ICL at the commencement of the review hearing I expressed the view that it is essential in this matter that the appointments with the single expert take place after the conclusion of the mother’s current criminal proceedings, including sentencing and any relevant appeal period. All parties agreed with this position and the Court was informed that the parties currently have appointments with the single expert at the commencement of 2022, after the anticipated completion of the mother’s current criminal proceedings.
Following this short discussion, it became clear that the father did not press the orders sought in his application for review being that the appointment of the single expert be discharged and that the proceedings be generally adjourned. Instead, the father sought an order requiring the mother’s solicitor to file an affidavit at the relevant time to inform the Court whether the mother’s criminal proceedings had been completed and that the ICL be granted liberty to re-list the matter if it becomes clear that the mother’s criminal proceedings will not be completed before the scheduled appointments with the expert.
The second matter that appeared to be an issue on the face of the review application was the issue of the costs of the single expert. However, both parties accepted that they were liable for one half of the expert’s fees and informed the Court that they had made arrangements to make such payments.
As a result of the foregoing, the parties agreed that the matter could be resolved through orders made with their consent. Terms of Settlement were prepared and orders made accordingly.
An application for costs was made on behalf of the mother at the conclusion of this court event and with the consent of the parties directions were made for each of them to file written submissions and any affidavit evidence upon which they wished to rely with such application to be determined in chambers. In his written submissions, the father made his own application for costs. The mother did not make an application seeking an opportunity to reply to the father’s application and consequently no opportunity to file further submissions was provided.
the law & discussion
The mother is seeking that her costs of and incidental to the application for review of the registrar’s decision be paid by the father on an indemnity basis. The father seeks that the mother’s application for costs be dismissed and that he be awarded costs in a fixed amount in respect of costs incurred by responding to the mother’s costs application.
Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to subsection (2) which gives the Court a discretion to make an order for costs if there are circumstances that in the Court’s opinion justify it in doing so. Any such order for costs is to be pursuant to section 117(2) “as the Court considers just”.
The High Court in Penfold v Penfold[1] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making such an 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.
[1] (1980) 144 CLR 311.
Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs. The matters relevant in this case are considered below.
The financial position of each of the parties to the proceedings
It is submitted on behalf of the mother that she is in a strained financial position. The mother deposes that she operates a small business and has a fluctuating income. She further deposes that her business was greatly affected by the COVID-19 pandemic and she was in receipt of COVID small business payments during that time.
According to the mother’s Financial Statement she receives an income of approximately $500 per week and her weekly personal expenditure is approximately $1,400 per week. The mother deposes that she provides child support towards the children and also purchases them other items such as clothes and school supplies. The mother similarly deposes that where possible she provides financial support towards two of her older children from a previous relationship.
The mother owns property to the value of approximately $10,000 and has approximately $160,000 in superannuation. She has a credit card liability of approximately $2,500. The mother deposes that the maternal grandmother has previously assisted her in payment of her legal fees and will assist her by providing funds for her share of the expert’s report but is unable to provide any further financial assistance.
In written submissions filed on behalf of the father it is submitted that the financial circumstances of the parties is not an applicable consideration. No basis is provided for this submission.
In a Financial Statement filed by the father in June 2021, he deposes to an average weekly income of $1,815, an average weekly personal expenditure of $1,805 and that he has a credit card liability of approximately $3,000. The father owns property worth approximately $18,000 and has superannuation valued at approximately $265,900.
The mother submits that the father is employed full time as a professional and has significant surplus finds.
Having regard to each of the party’s financial positions as summarised, although there is some uncertainty in relation to the father, I am of the view that both parties have some financial capacity to satisfy an order for costs. Although the mother deposes to being financially strained, it is significant that both she and the father have made arrangements to be able to fund the preparation of the single expert report. Even if the Court accepts the mother’s assertion that the maternal grandmother is unable to provide her any further financial support, her strained financial circumstances are not determinative as impecuniosity is no bar to making an order for costs.[2]
[2] D & D (Costs) (No. 2) (2010) FLC 93-435.
The conduct of the parties to the proceedings in relation to the proceedings
It is submitted on behalf of the mother that the father acted unreasonably by filing an application for review without any proper basis, and that his failure to advise her and the ICL prior to the subsequent court event that he had obtained a loan to pay for his half of the expert’s fees was similarly unreasonable. The mother relies upon the affidavit filed by the father in support of his application in this regard.
In his affidavit, the father deposes that he was seeking to discharge the order appointing the single expert at this stage of the proceedings and further sought that the matter be generally adjourned until the conclusion of the mother’s criminal proceedings. It is contended on behalf of the mother that if the father was seeking to ensure that the parties did not attend upon the expert prior to the conclusion of the mother’s criminal proceedings, there was no need to file an application for review as the interviews with the expert had already been booked for February 2022, some months after the anticipated completion of the criminal proceedings.
The father further deposes in the affidavit filed in support of his application that he has no financial means to meet the costs of the expert report. It appears to be contended on behalf of the mother that such complaint in the affidavit put her on notice that payment of the expert’s fees would be an issue to be determined in the review. However, during the hearing the father informed the Court (and the parties) for the first time that he had sought a loan to enable him to meet his share of the expert’s fees and as a result was not seeking to agitate the issue. If I understand the mother’s submission correctly, it appears to be contended on her behalf that had this been disclosed by the father previously, the mother would not have incurred certain costs directed to preparation of submissions in relation to this issue.
It is noted by the mother that the father filed a 432 page tender bundle in preparation for the review hearing which consisted of material relating to previous criminal and care proceedings as well as the mother’s current proceedings, which was of no relevance to the issues to be determined in the review application. At the commencement of the hearing I informed the parties that a tender bundle of that size was excessive, especially in relation to the simple issues which were the subject of the review and that that material would not be read by the Court.
The gravamen of the mother’s application for costs is that the father unreasonably pursued his application for review until the commencement of the review hearing, at which time he discontinued his application. It is submitted on behalf of the father that he did not at any stage discontinue his application. Instead, following some initial remarks made by the Court, he did not press the discharge of orders appointing the single expert but rather sought orders to ensure that the appointments with the expert did not take place until the conclusion of the mother’s criminal proceedings. In this respect, the father sought an order that the mother’s solicitor file an affidavit providing any necessary update in relation to the criminal proceedings and a further order that the ICL be given liberty to re-list the proceedings to allow the current appointments with the expert to be rescheduled to a later date if the mother’s criminal proceedings were not completed as anticipated. An additional order was sought by the father and the ICL that the mother provide the brief of evidence to the parties at the conclusion of her criminal proceedings and it was indicated by the Court that such order would assist the Court in the determination of this the parenting dispute.
It is the father’s case that the fundamental basis for filing the application for review was to ensure that the mother’s criminal proceedings had concluded, including any appeal period, before the parties became involved with the single expert. The father contends that it was necessary for the review application to be filed in order to achieve this result due to the conduct of the mother. The father submits that the application was filed in circumstances where the mother was agitating for the expert report to be prepared quickly and for the parenting proceedings to progress before the completion of her criminal proceedings. In support of this position the father relevantly points to the Outline of Case filed by the mother in the review hearing where it is contended on her behalf that if she were to be found guilty of her criminal charges it would be “unlikely” that she would be sentenced to a term of imprisonment (implying there is no impediment to preparing an expert report at this stage) and the inclusion of an assertion that the “[e]xpert [r]eport interviews need to take place without further delay” as the mother had been “seeking an interim hearing since 14 November 2020”.
I accept the submission made on behalf of the father in relation to the mother’s conduct in these proceedings that she has not been forthcoming about the progress of her criminal proceedings. This contention was supported by the ICL during the hearing who submitted that it was necessary for the ICL to ask that a registrar of this Court request the Local Court file to provide clarity around the status of the mother’s criminal proceedings. It is noted by the father that the mother’s solicitor acts for her in both her family law and criminal proceedings and is well placed to update the parties and the Court in relation to the mother’s criminal proceedings.
Finally, the father submits that the mother was on notice that the nub of his application was to ensure that the parties not attend upon the expert until the completion of the mother’s criminal proceedings, as was clear from the Outline of Case filed on his behalf. I attach some weight to the father’s submission that the mother could have provided her consent to an adjournment of the appointments with the expert until after the completion of her criminal proceedings and her failure to do so required that he seek a review of the orders.
I do not accept the submission made on behalf of the mother that the father acted unreasonably by filing an application for review without any proper basis. Although I accept the mother’s submission that the parties’ interviews with the expert are currently scheduled to occur after her criminal proceedings are anticipated to have concluded, little weight can be attached to this submission in circumstances where those proceedings could potentially be delayed and at the time of filing the application there was no mechanism for the parties or the Court to be informed of that delay if it were to arise.
I accept the submission made on behalf of the father that his application for review must be viewed in a context where the mother had not been forthcoming about her criminal proceedings and had been agitating for an expert report to be prepared as quickly as possible. As the parties had appointments with the expert booked several months after the expected completion of the mother’s criminal proceedings, it could be viewed that an application for review was premature in the circumstances, however, I accept the submission made on behalf of the father that an application to the Court was necessary to ensure the parties did not attend upon the expert prematurely. In these circumstances, it cannot be considered that the father acted unreasonably by filing an application to achieve this purpose.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
While it is not clearly contended on behalf of the mother that the father has been wholly unsuccessful in the proceedings, it is submitted that he “had no chance of success in his [a]pplication for [r]eview” and that it can be inferred from submissions made on his behalf at the hearing that the application “was commenced and pursued…for some other ulterior motive”. The mother does not however identify any specific submissions made on the father’s behalf to support this contention and hypothesises that the ulterior motive was “to drain [her] financial capacity to afford legal representation and continue with these proceedings”. Although the mother provides no specific evidence in support of this submission, it may be inferred that her submission that the father discontinued his application at the commencement of the hearing also supports this submission.
As previously addressed, the father contends that he did not at any stage discontinue his application. Instead, he sought different orders than those set out in his application for the purpose of ensuring that the parties did not attend upon the expert before the completion of the mother’s criminal proceedings. Furthermore, the father contends that although these orders were not set out in these terms in his application, they were foreshadowed in his Case Outline filed prior to the commencement of the hearing.
As the crux of the father’s application was to ensure that the parties did not prematurely attend upon the expert prior to the conclusion of the mother’s criminal proceedings, I consider that he was effectively successful in his application.
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
Neither party made an offer in writing to the other party to settle the issues in relation to the appointment of the single expert.
Both parties appear to suggest that they each attempted to settle the dispute and that these attempts should to considered in the context of this consideration. In this regard the mother submits that she sought to explore the relevant issues in dispute with the father by making requests for financial disclosure which were ignored by him. The father submits that the mother was well aware that the primary focus of his application was to ensure that the matter was not prematurely progressed before the completion of the mother’s criminal proceedings, and in that respect the mother could have provided her consent to an order along these lines before the review hearing.
I attach limited weight to the mother’s submission that she sought financial disclosure in an attempt to explore the issues in dispute and subsequently settle those issues. Although I accept that the mother was of the belief that the payment of the expert’s fees was to be a significant issue in the review, it cannot be her position that she believed this to be the only issue to be determined as the father’s affidavit filed in support of his application clearly sets out his concerns regarding the expert being appointed prematurely in the proceedings. Further, this application was filed in circumstances where the father had promoted that position in two previous court events. In this respect, it is difficult to accept the submission made by the mother that a request for financial disclosure could be seen as an attempt to explore the issues for determination (presumably for the purposes of settlement).
Although it is submitted on behalf of the father that the mother was on notice as to the focus of his application and thus could have attempted to settle the proceedings, he does not provide any evidence of any attempt he made to settle the issues prior to filing the application or it being listed for hearing.
Conclusion
Balancing the relevant matters that I have set out, I am of the view that there is insufficient justification to depart from the usual rule that each party bears their own costs. As I do not consider there are circumstances that justify a departure from this rule, I do not need to consider the mother’s submissions with respect to indemnity costs. Accordingly, I make the orders set out at the forefront of this judgement.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 20 May 2022
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