WORRALL and BARTLEY

[2023] FCWA 133

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WORRALL and BARTLEY [2023] FCWA 133

CORAM: O'BRIEN J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 5 JULY 2023

FILE NO/S: 4789 of 2010

BETWEEN: MR WORRALL

Applicant

AND

MS BARTLEY

Respondent

Catchwords:

COSTS – where the father seeks costs in a fixed sum after complex and difficult parenting proceedings – where the amount sought represents slightly less than half of the father's costs actually incurred – where an order for costs is justified and the amount sought is reasonable in all the circumstances – turns on its own facts

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 2021 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A
Independent Children's Lawyer	:	N/A

Solicitors:

Applicant	:	O'Sullivan Davies Lawyers
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Legal Aid Western Australia

Case(s) referred to in decision(s):

Anison v Anison (2019) FLC 93-908

Beach Petroleum NL and Anor v Johnson and Ors (No 2) (1995) 57 FCR 119

Braithwaite v Braithwaite [2007] FamCA 468

Brookvista Pty Ltd v Meloni [2009] WASCA 180

Hall v Hall (2016) 257 CLR 490

Idoport Pty Ltd v National Australia Bank Ltd & Ors [2007] NSWSC 23

Lenova & Lenova (Costs) [2011] FamCAFC 141

Parke & The Estate of the Late A Parke (2016) FLC 93-748

Prantage v Prantage (2013) FLC 93-544

Worrall and Bartley [2023] FCWA 2

Wrenstead & Eades (2016) FLC 93-697

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym [Worrall and Bartley] has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The most recent tranche of the long-running litigation between [Mr Worrall] ("the father") and [Ms Bartley] ("the mother") about their child [Child A], born [in] 2009, culminated in a trial, with judgment delivered on 13 January 2023 ("the primary judgment").[1]

[1] Worrall and Bartley [2023] FCWA 2.

2The matter now requiring determination is the application of the father seeking that the mother pay $250,000 towards his costs of those proceedings. The mother has not responded to that application. The Independent Children's Lawyer does not seek to be heard.

3In support of his application, the father relies on his affidavit filed on 14 March 2023 and written submissions filed the same day. The mother was required to file any responsive written submissions by 15 May 2023, and she did not. I record that I specifically drew that requirement to the attention of the mother at a hearing on 17 March 2023 when she was present in person and represented, and further explained that if she "was to do nothing in relation to the costs application against the background of those timeframes, that costs application would itself likely be determined without further notice to her."

4After the filing of written submissions, the parties were at liberty to seek a relisting for the making of oral submissions within a specified timeframe. No such request was made, and the application falls to be determined in Chambers and on the papers.

5The relevant background and the history of the litigation is set out in detail in the primary judgment.[2] I incorporate the primary judgment in these reasons and refer to specific matters only to the extent necessary for context.

The legal principles

[2] See Worrall and Bartley [2023] FCWA 2, [3] – [107].

6There are two primary matters for determination; whether there are circumstances that justify an order for costs and, if so, what order for costs is just.

7Subsection 237(1) of the Family Court Act 1997 (WA) ("the Act") provides that, subject to s 237(2), each party to the proceedings shall bear his or her own costs.

8Subsection 237(2) provides that if the Court is of the opinion that there are circumstances that justify doing so, the Court may, subject to s 237(3), make such orders as to costs as it considers just. Subsection 237(3) provides as follows:

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

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

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

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

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

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

(f)whether a 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.

9The discretion conferred by s 237(2) is broad. The factors set out in s 237(3) are not to be read in a restrictive way and any one of those factors may, in appropriate circumstances, be the sole basis for an order for costs. That said, the relevant matters in the subsection must be taken into account and balanced in order to determine whether an order for costs is justified.

10An order for costs is compensatory, not punitive.[3] Impecuniosity is not of itself a bar to a costs order.[4]

[3] Braithwaite v Braithwaite [2007] FamCA 468.

[4] Lenova & Lenova (Costs) [2011] FamCAFC 141, [12].

11The legislative provisions in relation to costs do not draw any distinction between parenting cases and financial cases, nor is the breadth of the Court's discretion subject to any such distinction.[5]

[5] Wrenstead & Eades (2016) FLC 93-697.

12The father seeks the payment of costs in a fixed sum, as contemplated in r 335(1)(a) of the Family Court Rules 2021 (WA). The purpose in all courts of rules enabling an order for costs in a specific amount, without formal assessment or taxation is to "avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation".[6] If the Court is to fix a sum it should be "fixed broadly having regard to the information before the Court". The process does not "by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place".[7] The Court must act judicially, and the manner in which the costs are fixed must be logical, fair and reasonable,[8] but that does not mean that it must exercise the power to award a lump sum in any "scientific or formulaic manner".[9]

Legislative considerations not relevant in the present case

[6] Beach Petroleum NL and Anor v Johnson and Ors (No 2) (1995) 57 FCR 119, 120.

[7] Parke & The Estate of the Late A Parke (2016) FLC 93-748, [130].

[8] Brookvista Pty Ltd v Meloni [2009] WASCA 180, [26].

[9] Idoport Pty Ltd v National Australia Bank Ltd & Ors [2007] NSWSC 23, [10].

13Neither party was in receipt of Legal Aid at any point in the proceedings. The father did not suggest that any relevant written offer had been made.

The financial circumstances of the parties

14The father does not contend that his financial circumstances are such as to ground the making of a costs order, acknowledging that he has the means to meet his own very substantial costs. In the present substantive proceedings, the subject of this application for costs, he has incurred legal costs of approximately $530,000, as well as court fees, Single Expert Witness fees, and other similar costs of a further $21,624.

15There is no evidence as to the financial circumstances of the mother. Of course, the absence of such evidence is attributable to the mother's failure to engage with the present application. That choice on the part of the mother cannot, of itself, be a mechanism to defeat the application.

16It is a matter of record that up to 14 March 2022 the mother had, from whatever source, met legal fees in excess of $667,000 and placed in her then solicitor's trust account funds to the tune of a further $174,000. Even if, as asserted in the relevant cost notifications prepared by the mother's then solicitors, those funds were borrowed from family members and friends, the required consideration of the financial circumstances of a party can include consideration of financial resources available to them.[10]

[10] See, albeit in a different context, Hall v Hall (2016) 257 CLR 490, 496.

17A consideration of the financial circumstances of the parties does not of itself justify the making of an order for costs in this case. By the same token, that consideration does not mitigate against the making of such an order.

The conduct of the parties in relation to the proceedings

18It is important to bear in mind that the terms of s 237(3)(c) refer to the conduct of the parties as litigants, rather than their personal conduct more broadly.[11] I make it clear that I have borne that distinction in mind. I have had regard only to the mother's relevant conduct during the proceedings commenced by the father's application filed on 12 March 2021, as distinguished from earlier and other proceedings.

[11] Prantage & Prantage (2013) FLC 93-544.

19The following findings from the primary judgment bear repeating:

1)on the first return date of the primary proceedings, the mother was ordered to file a response setting out with particularity the final, interim and interlocutory orders she would seek. Notwithstanding that order, she filed a response in which she sought to be excused from particularising the final orders she sought. In isolation, that action might not be thought to be particularly significant, but its ramifications extended well into trial;[12]

[12] Worrall and Bartley [2023] FCWA 2, [87] – [89].

2)at a hearing on 5 May 2021, counsel for the mother made it clear that she sought to reserve her position in relation to final orders as to all matters, including parental responsibility and with whom Child A should live;[13]

[13] Worrall and Bartley [2023] FCWA 2, [91].

3)on 26 August 2021, notwithstanding that orders had been made on 31 May 2021 for the provision of a further report by [Dr E], the mother filed an application seeking the discharge of those orders and the appointment of a different Single Expert Witness ("SEW").[14] Subsequently on 15 September 2021, at the mother's request, orders were made enabling her to attend interviews with Dr E accompanied by a named support person.[15] Notwithstanding those orders, the mother then declined to engage with Dr E for the purpose of the preparation of his report, and went to the extent of blocking communications from his office on her phone.[16]

[14] Ibid, [99].

[15] Ibid, [101].

[16] Ibid, [104].

4)on 27 January 2022 the mother filed an application seeking that the listed trial be vacated. She indicated who would be her preferred counsel and said simply that her solicitors were "making enquiries" as to the availability of Mrs Farmer to appear at trial. I was not advised of the result of those enquiries either in the mother's affidavit, or at the hearing on 11 February 2022, at which Mrs Farmer appeared for her on a limited brief. The application was dismissed and Mrs Farmer appeared on behalf of the mother at trial;[17]

[17] Ibid, [105] – [107].

5)in her minute of orders sought filed for the purposes of trial on 22 February 2022, the mother proposed an order giving her liberty to amend the orders she sought upon the publication by Dr E of answers to questions administered by her lawyers, the release of any report by a shadow expert apparently engaged by her, the release of any report by [Ms A], or the return of any further subpoenaed material. No subsequent amendment was sought and no report from the shadow expert was ever produced;[18]

[18] Worrall and Bartley [2023] FCWA 2, [118].

6)in the same minute, part of the "primary position" advanced by the mother involved a proposal that 12 months after the making of orders Dr E should undertake a further assessment limited to Child A's wishes, including the impact on her wishes of being informed of the contents of the judgments. That proposal was advanced notwithstanding that the mother had declined to engage with Dr E for the purpose of his updated report for trial.[19] Over and above that obvious issue, other elements of the relief sought by the mother were internally inconsistent or inaccurately described, as set out in the primary judgment;

[19] Ibid, [121].

7)notwithstanding the documents earlier filed on her behalf, in her papers for the judge handed up in court on 9 March 2022, the mother's position was stated as being that the father should continue to have sole parental responsibility and that Child A should continue to live with him. That purportedly clear position was caveated by reference to notes apparently written by Child A, which the mother said would need to be "explored at trial because they are suggestive of risk";[20]

8)it then took some considerable time, and repeated requests, to clarify the mother's position. The steps which had to be taken in that regard are set out in the primary judgment and need not be repeated. Eventually, on the fourth day of trial, counsel for the mother was able to unequivocally state that the mother's "position is that the father does not pose a risk to Child A";[21]

9)whilst I accept that counsel's statement was a truthful account of the instructions she received, those instructions were dishonestly given;

10)notwithstanding the mother's stated position at trial, during the period in which the trial was adjourned part heard she directly communicated with Child A seeking to instruct or guide her as to how Child A might make complaints to other adults suggesting that the father had "molested" her. Those and other actions reflected the mother's true beliefs, which stood in stark contrast to the position she sought to express to the Court;[22]

11)the father incurred additional costs in responding to actions taken by the mother in breach of injunctions, including her surreptitious communications with Child A via an iPhone provided to her for that express purpose. She made attempts to directly influence Child A's views about the father, and Child A's actions.[23] That conduct, apart from being harmful to Child A, extended the trial and increased the associated costs;

12)the mother subsequently disengaged from the proceedings, necessitating a number of hearings so as to ensure that she was afforded procedural fairness. In making that observation, I acknowledge that while those additional hearings involved expense to the father, so too would have a continuation of the trial and the work required had the mother not disengaged;

13)the mother failed to meet her duty of disclosure, most particularly in relation to her surreptitious communications with Child A; and

14)the mother made a number of interim and interlocutory applications over the course of the proceedings which were ill considered and entirely unsuccessful. The father incurred significant additional costs in dealing with those applications.

[20] Ibid, [170].

[21] Ibid, [171] – [174].

[22] Worrall and Bartley [2023] FCWA 2, [247].

[23] Ibid, [276] – [283], [321] – [331].

20The mother's conduct as a litigant is such as to justify an order for costs against her.

Whether the proceedings were necessitated by the failure of a party to comply with previous orders

21The father submits that the primary proceedings were necessitated by the mother's failure to comply with orders made on 22 January 2019 and 20 August 2019. The mother simply refused to spend time or communicate with Child A under the conditions imposed by those orders; in circumstances where Child A wished to spend time and communicate with the mother, the father saw little option but to try and actively address the matter.

22While there is some merit in the observations made on behalf of the father in that regard, the primary proceedings were not necessitated by the mother's non-compliance with orders in the sense contemplated by s 237(3)(d), which is more typically directed to enforcement proceedings.

Whether either party was wholly unsuccessful

23It is well settled that s 237(3)(e) refers to a situation where proceedings as a whole have been unsuccessful. For example, where an application without merit has been dismissed.[24]

[24] Anison v Anison (2019) FLC 93-908.

24As the father points out, none of the orders actively sought by the mother in the primary proceedings have been made. That said, an order for costs is otherwise justified, and does not rely on a finding under s 237(3)(e); any doubt or room for argument as to whether the mother was "wholly unsuccessful" in the relevant sense is thus of no impact.

Other matters said to be relevant

25Consistently with my findings in the primary judgment, the father observes that the mother "has been content to advance a dishonest case". In my view, that accurate observation is appropriately taken into account in the required consideration of s 237(3)(c) above.

Consideration and disposition

26I am comfortably satisfied that an order for costs is justified. I turn now to the question of what order for costs is just.

27Rule 335(3) provides that in making an order for costs of a specific amount, as is presently sought, the Court may consider:

(a)the importance, complexity or difficulty of the issues; and

(b)the reasonableness of each party's behaviour in the case; and

(c)the rates ordinarily payable to lawyers in comparable cases; and

(d)whether a lawyer's conduct has been improper or unreasonable; and

(e)the time properly spent on the case, or in complying with pre-action procedures; and

(f)expenses properly paid or payable.

28The issues in this case were self-evidently important, complex and difficult. All parenting cases are important; it may fairly be noted that this case was among the most complex and difficult to be determined in this Court, in my experience.

29My observations as to the reasonableness of the mother's behaviour in the case need not be repeated. On behalf of the father, the case was conducted entirely appropriately from start to finish. The father's behaviour both as a party and a witness was itself entirely appropriate.

30Consistent with that, it was entirely reasonable for those representing both parties to spend very significant time in the preparation and presentation of their respective cases. The fees charged to both parties, while significant, reflect the difficulties and complexities of the matter and, to a significant degree, the conduct of the mother as a litigant. I am satisfied that the time spent on the case by the father's lawyers was proper and reasonable. It was also reasonable for the father to be represented by both senior and junior counsel at trial, and I note that Senior Counsel significantly reduced his usual rates to accommodate that. The mother was herself represented at trial by very experienced counsel and junior counsel.

31Similarly, having reviewed the relevant costs agreements between the father and those representing him, and the Legal Profession (Family Court of Western Australia) Determination 2022, I am satisfied that the fees charged to the father are consistent with the rates ordinarily payable to lawyers in comparable cases.

32The father has incurred costs and disbursements of approximately $552,000. He seeks from the mother a contribution of slightly less than half of those total costs. That, in my view, appropriately recognises that the inability of the parties to agree arrangements for Child A without a judicial determination meant that he would have incurred significant costs, even had the mother been a model litigant.

33The mother was far from a model litigant. In broad terms, I conclude that the father's costs were roughly doubled by the manner in which she conducted the litigation, including the matters summarised above, and others canvassed in more detail in the primary judgment.

34I am accordingly satisfied that in all the circumstances the amount sought by the father as a contribution by the mother towards his costs is reasonable and justified.

35There will be the following order:

1.The mother must pay the father's costs of the primary proceedings fixed in the sum of $250,000.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

5 JULY 2023

36