Woodhouse and Woodhouse and Ors

[2016] FCCA 1744

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODHOUSE & WOODHOUSE & ORS [2016] FCCA 1744

Catchwords:
FAMILY LAW – Parenting – Costs – Respondent maternal grandparents given leave by court to withdraw from proceedings during course of trial – Costs applications made separately by mother and father, each of whom were separately legally represented – Costs applications refused.

Legislation:

Family Law Act 1975, s.117

Cases cited:

Cheni & Stiller (No.2) [2016] FamCA 218

Applicant: MS WOODHOUSE

First Respondent: MR WOODHOUSE

Second Respondent: MS S WOODHOUSE

Third Respondent:   MR BOYD

File Number: DUC 345 of 2014

Judgment of: Judge Newbrun

Hearing date: 6 April 2016

Date of Last Submission: 27 May 2016

Delivered at: Parramatta

Delivered on: 17 June 2016

REPRESENTATION

Counsel for the Applicants: Mr Lawrence

Solicitors for the Applicants: Osborne Legal

Counsel for the First and Second Respondents: Mr Battley

Solicitors for the First and Second Respondents: Garvins Solicitors

Counsel for the Third Respondent: Ms Obradovic

Solicitors for the Third Respondent: Peacockes Solicitors

ORDERS

1. The applications for costs made by the Applicant mother and the Third Respondent father are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Woodhouse & Woodhouse & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DUBBO

DUC 345 of 2014

MS WOODHOUSE

Applicant

And

MR WOODHOUSE

First Respondent

MS S WOODHOUSE

Second Respondent

MR BOYD

Third Respondent

REASONS FOR JUDGMENT

1. On 7 April 2016, being the second day of the final hearing of these parenting proceedings held at the Dubbo Registry of this Court, the First and Second Respondents, being the maternal grandparents of the relevant children, sought leave from the Court to withdraw from the proceedings. The Court refers to the transcript of what transpired before the Court when Counsel for the First and Second Respondents made that application to the Court.

2. At the time that that application was made by the First and Second Respondents, both Counsel for the mother and Counsel for the father, the Third Respondent expressly indicated to the Court that they would be making an application for costs in light of the First and Second Respondents’ application seeking leave to withdraw from the proceedings.

3. It should be stated that the present costs applications being determined are costs applications made by the mother and the father being the Applicant and the Third Respondent in the proceedings respectively.  The First and Second Respondents oppose the making of any order for costs other than the usual order that each party bear its own costs.

4. The Court notes that it did grant leave to the First and Second Respondents to withdraw from the proceedings but as the transcript of the proceedings at the time the leave application was made clearly shows, in the view of the Court, the Court’s granting of leave to the First and Second Respondents to withdraw from the proceedings was clearly conditioned on the Court being entitled to consider and determine the costs applications made by the mother and the father at the time the leave application was made.

5. The Court notes that the First and Second Respondents at no time objected to the Court hearing and ultimately determining the costs applications made by the mother and the father. In these circumstances, the Court does not accept the submissions made by the First and Second Respondents that the Court is presently functus officio, in terms of considering the extant costs applications, leave having been granted to the First and Second Respondents to withdraw from the proceedings.

6. The Court refers to relevant legal principles in relation to the determination of costs applications under the Family Law Act 1975 (Cth) (“the Act”). The Court refers to Foster J in Cheni & Stiller (No 2) [2016] FamCA 218, wherein Foster J stated:

   [3] Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.

   [4] That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.

   [5] Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.

   [6] The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section as follows:

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

   b) Whether any party has legal aid and the terms of any grant of aid;

   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 answers, 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.

   [7] The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:

   17. With respect to the application of the section, in Penfold v Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".

   Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

   (Footnotes omitted)

   18. The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:

   … A number of factors are then listed in the subparagraphs. The financial circumstance of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

7. The Court refers to section 117 of the Act in relation to the present costs application. The Court will now consider relevant considerations set out in subsection (2)(a) of section 117.

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

1. Each party filed a Financial Statement, following 7 April 2016.

2. The maternal grandparents, the First and Second Respondents, as submitted by them are asset rich and income poor. The father’s liabilities exceed his assets and he is clearly a man of modest means.  The mother’s Financial Statement of 20 April 2016 states that the mother has a total average weekly income of about $744, with weekly total personal expenditure of some $2,644.

3. As to this latter figure, it is stated at page 11 of the mother’s Financial Statement that she has some $2,000 per week in relation to education expenses, including fees and levies; as submitted by the First and Second Respondents (the maternal grandparents), it is difficult to understand the mother’s asserted $2,000 per week of education expenses and how it is financed. The Court is of the view that the mother’s Financial Statement is, at least in relation to the extent of her weekly total personal expenditure, unclear.

(b) Whether any party has legal aid and the terms of any grant of aid

1. The mother states that she was legally aided until 20 August 2015.

(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 answers, questions, admissions of facts, production of documents and similar matters

Conduct of the Applicant mother

1. In this context, the following chronological events are relevant:

   a)3 October 2014, the mother files Initiating Application in the Local Court of New South Wales a Dubbo seeking a recovery order against the maternal grandparents in respect of the child X.

   b)7 October 2014 - interim consent orders in the Local Court at Dubbo:  the maternal grandparents to return X to the mother; maternal grandparents to spend time with X each weekend from after school Friday until Sunday 5:00pm.

   c)24 October 2014 - maternal grandparents file a Response seeking orders for the three (3) children to spend time with them (i.e., regarding X, to spend each weekend and each school holidays with them and other orders, and for the transfer of the proceedings to this Court).

   d)12 November 2014 - mother files a Reply; that Reply included final and interim orders for the children to spend time with the maternal grandparents (i.e., one (1) weekend every three (3) months; 9:00am Saturday to 5:00pm Sunday).

   e)20 November 2014 - Third Respondent father joined to the proceedings.

   f)20 November 2014 - parties attend a Duty Child Dispute Conference. The memorandum of the Family Consultant reports that the matter primarily involves a dispute between the mother and the maternal grandparents in relation to the time the children will spend with the maternal grandparents. It is further reported that there was no dispute between the mother and the father. No agreement is reached as to time X would spend with the maternal grandparents on weekends during school term time or during holidays.

   At the Duty Child Dispute Conference, the mother put forward a proposal for the children to spend time with the maternal grandparents, i.e. one (1) weekend during each school term and for one (1) weekend during each term holiday period. The maternal grandparents proposed that all children spend time with them on two (2) weekends per school term, and that during school term holiday periods X spend one (1) week with them and the other two (2) children spend four (4) to five (5) days.

   g)20 November 2014 - consent interim orders made by Dunkley J;  the 7 October 2014 Local Court orders are discharged;  i.e., X spend time with maternal grandparents, inter alia, one (1) weekend in terms one (1) and two (2) and five (5) days in term one (1) school holidays.

   h)19 March 2015 - maternal grandparents file a Contravention Application, alleging contravention of orders of 20 November 2014, by the mother on 20 February 2015, in that she had refused to allow the maternal grandparents to spend time with the children.

   i)29 May 2015 - interim consent orders, inter alia, that the children spend time with the maternal grandparents one (1) weekend in each term, beginning term three (3) by agreement and failing agreement, one (1) of the middle weekends of each term and for five (5) consecutive days each school holidays with X, if he wishes, to stay an extra five (5) days during the Christmas school holidays.

   j)22 July 2015 - Family Report published. The Family Report writer notes that the mother proposed that the maternal grandparents spend only three (3) days with the children during each school holiday period and not at all during school term periods. The maternal grandparents sought to retain the current interim orders as final orders, being a five (5) day block during school holidays with X being permitted to spend additional time if he wants to and one (1) weekend in the middle of each school term. They state to the Family Report writer that they consider a defined routine is unfortunately necessary to ensure that X can retain a relationship with them because X has told them that the mother wants him to have nothing to do with them.

   The child X tells the writer that he enjoys spending time with the maternal grandparents despite his “sense” that the mother wants him to have nothing to do with them. A recommendation is made by the Family Report writer that the children should continue to spend time with the maternal grandparents for five (5) days during each school holiday period, with X having the option of spending additional time with them at his own discretion and for one (1) weekend (Friday to Sunday) in the middle of each school term period together with telephone time with the maternal grandparents at least once per week and on special occasions.

   k)26 February 2016 - mother files Amended Initiating Application seeking final orders, inter alia, that include no order for the children to spend time with the maternal grandparents (in the alternative, the mother proposes an order that the children spend time with the maternal grandparents within the mother’s school holiday period for two (2) nights which arrangement is to occur four (4) times per year) (the Court interpolates here that in the mother’s Case Outline dated 31 March 2016, her proposed order 13 stated that “There be no orders as to the time the children spend with the maternal grandparents.”).

   l)6 April 2016 - the mother gives evidence at trial;  inter alia, she gave evidence that she accepted that the children had a relationship with the grandparents but questioned whether that relationship was a loving one; she gave evidence critical of her father and that the Court proceedings had contributed to her present views of her father; she gave evidence that her relationship with her brothers had ceased after these Court proceedings had started; she gave evidence that if her parents tried to have a relationship with her, they would have a relationship with the children but that her parents do not want a relationship with her; she gave evidence that the child X should not be Court ordered to spend time with the grandparents; she gave evidence that if X chose to spend time with the maternal grandparents, she would not oppose it; she gave evidence that if there were no Court orders in the next six (6) months it would be okay for the child to spend time with the maternal grandparents in school holidays but not during school term times; she gave evidence that she would ensure, if there were no Court orders, that the children spend time with the maternal grandparents for two (2) to three (3) days during the school holidays; she gave evidence that she was willing to foster the children spending time with the maternal grandparents but if they have a block time during the school term holidays her time will be restricted with the children. 

   m)7 April 2016 - Supplementary Family Report published. The child X and his biological father, Mr P, had attended the Family Report interview on 7 April 2016. Inter alia, Mr P advised that he and X had only met for the first time in about 12 years only a couple of weeks ago and had spent the preceding two (2) weekends together in Mr P’s hometown in (omitted) (the Court interpolates here that Mr P resides in Perth, Western Australia.)

   Mr P and the child both stated that they would like to spend more time together, probably in Western Australia, being for three (3) or four (4) days during each of the April, July and September/October school holiday periods and for two (2) weeks during Christmas school holiday periods. They advise that the mother was supportive of this. Mr P stated he does not wish to become a party to the present proceedings because he doesn’t believe this is necessary, he wants to avoid prolonging these proceedings unnecessarily and he expects the arrangements for the child to spend time with him in Western Australia will not require Court orders. Mr P expressed the hope that the proceedings will be finalised today.

   The child stated that he has been continuing to spend time with the grandparents on a regular basis involving both summer weekend time and parts of school holiday periods.  He said this is going well, he enjoys the time that he spends with them on the farm and he said he has not missed any football commitments as a consequence of this. For example, when asked if the child would like to make any changes to the routine or time that he spends with the grandparents, he replied “I want it to be fair enough time with everyone, that is, not more time with one than the other.  I want it to be even and fair”.

   Under the heading Brief Comments, the Family Report writer states:

   Inter alia, the child X is currently in year 10 at (omitted) College in (omitted) and he expects to leave school at the end of this year, anyway, so further disputation about the parenting time arrangements for him is probably unnecessary. Since the arrangements proposed for X to spend time with his father in Western Australia seem reasonable and appropriate, my hope is also that the parties will be able to come to some agreement to finalise this matter today.

Conduct of the First and Second Respondents

1. The First and Second respondents, the maternal grandparents submit in relation to their request to the Court on 7 April 2016 seeking leave to withdraw from the proceedings, that this request was a child-focused act by them as it followed (adopting the express words of the submission in paragraph 51 of the Written Submissions of the maternal grandparents):

   (i) helpful, perspicacious preliminary comments from the Court,

   (ii) recognition of the pressure being placed on X, the oldest child, by the proceedings,

   (iii) evidence from the witness box that the mother was now inclined to facilitate the children spending some time with her parents, the first and second respondents and the,

   (iv) desire by X to pursue his relationship with his own father, Mr P.

1. The Applicant mother addresses in her Written Submissions at paragraphs 27 to 30 (inclusive) the above asserted “child-focused act” (again being the maternal grandparents’ request to the Court for leave to withdraw from the proceedings) by submitting:

   (a) the maternal grandparents had previously acknowledged some of the pressure that the child X felt through their comments to the family consultant in paragraph 33 (The Court interpolates here that in paragraph 33 of the Family Report the maternal grandparents told the family-report-writer, inter alia, that they understood the child X was under very significant emotional pressure from the mother not to have anything to do with them.),

   (b) the mother had, prior to the final hearing, stated that she was prepared to facilitate time between the child X and the maternal grandparents (In this context the Applicant mother refers to her Reply, the CDC, the family report paragraphs 19 and 21. The Court notes in this context, however, that the mother’s Amended Initiating Application filed 26 February 2016, and confirmed in her Case Outline dated 31 March 2016, provided that no order should be made for the children spending time with the maternal grandparents.)

   (c) the maternal grandparents were aware prior to the final hearing of the desire by X to pursue a relationship with his Aboriginal father, and the Second Respondent had spoken to Mr P in February 2016. See the Second Respondent’s affidavit, paragraph 24.  The mother’s affidavit of 19 November 2014 had annexed a letter from an Aboriginal education worker at X’s school regarding X wishing to begin a relationship with his Aboriginal father. The issue was further explored at paragraphs 153 to paragraph 160 of the mother’s affidavit.

2. The Court accepts the submissions of the maternal grandparents that they were pursuing orders recommended by the Family Report writer, which latter person had regarded were in the best interests of the children. The Court accepts that the maternal grandparents’ application on 7 April 2016 seeking leave to withdraw from the proceedings was a child-focused act and in particular the application did follow sworn evidence from the mother in the witness box that she was now inclined to facilitate the children spending time with the maternal grandparents.  Again the Court notes that the mother’s Amended Initiating Application filed 26 February 2016 and her Case Outline dated 31 March 2016 provided that there be no orders as to the time the children spend with the maternal grandparents. 

Conduct of the Third Respondent father

1. There is some merit in the submissions of the maternal grandparents as to the father’s conduct, including the submission that there was no significant reason why the father needed to be separately represented in the proceedings. The Court notes that the father’s Amended Response to the Initiating Application filed 29 March 2016 sought the identical orders sought by the mother in paragraphs 1 to 12 (inclusive) of her Amended Initiating Application filed 26 February 2016. The Court notes that in the father’s Case Outline dated 5 April 2016, it was also stated that the father’s evidence supported the mother’s case. Whilst the Court again regards the Written Submissions of the maternal grandparents as to the conduct of the Third Respondent father to have some merit, it does not view those submissions as to the father’s conduct as decisive on this costs application. 

(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court

1. The Court notes the interim orders of the Court on 20 November 2014 providing, inter alia, for the child X to spend time with the grandparents, which order was breached by the mother on 20 February 2015, following the Court on 29 May 2015 determining the maternal grandparents’ Contravention Application filed on 19 March 2015. The Court notes the mother’s Amended Initiating Application filed 26 February 2016 providing for no orders as to the children spending time with the maternal grandparents. 

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

1. It is clear that by the Court granting leave to the maternal grandparents to withdraw from the proceedings, including the making of the other orders set out in Exhibit B (including an order that all previous parenting orders with respect to the mother and the maternal grandparents and relating to the children be discharged) apart from proposed order 2 in Exhibit B relating to costs, resulted in the maternal grandparents not obtaining the orders that they sought in respect to the children.

2. In the context of this costs application, the Court does not place any significant weight on this factor. In this particular case, the Court is of the view, as discussed under the heading “Conduct of the First and Second Respondents” (and also see the Court’s discussion under the heading “Such Other Matters as the Court Considers Relevant”, considered below) that the maternal grandparents withdrawing from the proceedings was a child-focused act and followed, inter alia, the mother’s sworn evidence in the witness box that she would now facilitate the children spending some time with the maternal grandparents. 

(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

1. There is no evidence before the Court of any relevant written offers made by the parties between each other.

(g) Such other matters as the Court considers relevant

1. The appearance at Court of the child X’s biological father, Mr P, on 6 April of 2016 and his attendance with that child upon the Family Report writer the next day culminating in the production of a Supplementary Family Report of 7 April of 2016, as discussed above, is relevant in the context of the current costs applications.

2. The Court notes the Written Submissions of the maternal grandparents in this respect. The contents of the Supplementary Family Report illuminated not only the redevelopment of the relationship between Mr P and the child X but their intentions as to specific times that they wished respectively to spend with each other and which potentially impacted upon the maternal grandparents’ proposals.

3. The Court also notes that these proceedings led ultimately on 6 April 2016 to the mother giving very personal evidence about her relationship with her parents, in particular her father, and her brothers.  It was clearly in the children’s best interests, looking prospectively beyond 7 April 2016, that if possible there was some positive restoration of the mother’s relationship with her parents and perhaps to a lesser extent, her siblings.

4. The maternal grandparents withdrawing from the proceedings and reaching final agreements with the other parties (see the orders of the Court of 7 April 2016), necessarily resulting in the maternal grandparents not giving sworn evidence would likely have contributed to and assisted in reaching that desired outcome. Again, the maternal grandparents were seeking orders consistent with what the Family Report writer had recommended were in the best interests of the children. The mother was seeking an order that there be no order that the children spend time with the maternal grandparents. 

5. Whilst it is clear that the initial proceedings instituted by the mother sought a recovery order from the maternal grandparents, the proceedings thereafter, inter alia, involved interim consent orders between the parties providing for the children to spend time with the maternal grandparents both during school term times and during school holidays, such time being essentially found by the Family Report writer to be in the best interests of the children and which time ultimately was not agreed to by the mother on a final hearing basis, noting that her final orders sought provided that the children spend no time with the maternal grandparents.

6. The Court is of the view pursuant to section 117 of the Act, having considered the relevant factors as discussed above under section 117(2A), that there are no circumstances that justify the Court in making any order as to costs, other than the usual order that each party bear his or her own costs. Accordingly, the applications for costs made by the mother and the Third Respondent are dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:              26 July 2016