Wyona and Cartwright and Anor (Costs)

[2014] FamCA 837

FAMILY COURT OF AUSTRALIA

WYONA & CARTWRIGHT AND ANOR (COSTS) [2014] FamCA 837

FAMILY LAW – COSTS – An oral application made by the Independent Children’s Lawyer at the conclusion of the substantive proceedings that the father pay the whole of his costs – where the father left the courtroom on the first day of trial and did not return – where the father was accorded natural justice and given time to respond to the application but did not – where the conduct of the father has been uncooperative and obstructive  – where the father was provisionally diagnosed with a psychiatric disorder, and so posed an unacceptable risk of harm to the children, but instead of obtaining any further medical opinion, has simply rejected the assessment – in the particular circumstances of this case, the father should be responsible for one-third of the costs of the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 117

Black v Kelner (1992) 15 Fam LR 343

APPLICANT: Ms Wyona

RESPONDENT: Mr Cartwright

INTERVENER: Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Mr Coyle

FILE NUMBER: (P)NCC 991 of 2012

DATE DELIVERED: 1 October 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 18, 19 and 20 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Mason Lawyers

RESPONDENT: In person but left the court room on first day

COUNSEL FOR THE INTERVENER: Mr Boyd

SOLICITOR FOR THE INTERVENER: Crown Solicitor’s Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Family Law Firm

(Mr Coyle)

Orders

1. That the father pay the Independent Children’s Lawyer the sum of FOUR THOUSAND SIX HUNDRED AND FIFTY-SEVEN DOLLARS ($4,657) as a contribution to the costs of representing the children, such payment to be made on or before 8 January 2015.

2. That the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Wyona & Cartwright and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC991 of 2012

Ms Wyona

Applicant

And

Mr Cartwright

Respondent

And

Secretary, New South Wales Department of Family and Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction  

1. At the conclusion of the substantive proceedings, the Independent Children’s Lawyer made an oral application for the father to pay the whole of his costs.  Those costs were quantified at not less than $13,972.[1]

   [1]  Exhibit 11 [Costs disclosure] varied by an increase of $660 in submissions, being costs of the Expert (the psychiatrist) giving evidence on 18/08/2014

2. The mother had the benefit of a grant of legal aid.  Costs were not sought against her.  There being no challenge to the Intervener acting in good faith, costs were not sought against the Intervener (s 117(4A) of the Family Law Act 1975 (Cth) (‘the Act’)).

3. The father was not present in Court when the application was made, having left the courtroom on the first day of the hearing and not returned.

4. To make an order for costs without hearing submissions from the party potentially affected will usually constitute a denial of natural justice.  The decision of the Full Court in Black v Kelner[2] said this:

   … it is not open in this court to make orders for costs without giving the parties a chance to be heard, except perhaps in very unusual circumstances …

   [2] (1992) 15 Fam LR 343 at [348]

5. It could be argued that the father absenting himself from the trial early on the first day constitutes such very unusual circumstances.  His own actions in that regard left him open to all relevant matters being determined in his absence.  That could be reasonably predicted by a party taking that course.

6. However in my view, despite those circumstances, there would have been a denial of natural justice if the father was not given the opportunity to respond to the application for costs for these reasons:

   (a)The father was representing himself and could not be expected to know that an oral application would be made at the conclusion of the trial.

   (b)I have accepted expert evidence that the father has a psychiatric disorder which causes him to be paranoid and delusional.

   (c)There is no information before me about the income and assets of the father such as would allow me to properly consider his financial circumstances as I am obliged by the legislation to do.

7. Accordingly, I considered it appropriate to allow a period of time (21 days) to be provided for the father to respond to the application.  Appropriately in my view, the Independent Children’s Lawyer did not oppose that course.

8. The father did not respond to the application within the 21 day period in any way.

The law

1. The general principle enunciated in s 117 of the Act is that each party to proceedings shall bear his and her own costs.

2. If the Court is of the opinion that there are circumstances that justify it doing so, the Court may make such order as to costs as the Court considers just. If there are such justifying circumstances, the Court must have regard to the factors set out in s 117(2A) of the Act.

Circumstances that justify making an order

1. In this matter the father left the court room on the first day of trial after approximately 30 minutes.  Without notice to the other parties and the Court, he made an application for an adjournment of the trial which was unsuccessful.  He had not filed and did not seek to rely on any affidavit material.

2. The father had given the Court an indication in March 2014 that he wished to negotiate with the Intervener to reach a resolution of parenting issues.  Subsequently, he failed to respond to the correspondence from the Intervener.  The matter came back before the Court.  Further time was permitted for the father to respond to the Intervener.  He did not.

3. The outcome of the proceedings is very much in line with the overall proposals of the Intervener.  It is also consistent with interim orders which have been in place for six months.  The issues of central significance, namely parental responsibility and residence for the children, have been determined in accordance with the application of both the mother and the Intervener.  The proceedings could have been brought to conclusion, or at least issues significantly narrowed.  Five days of hearing time were allocated by the Court to the matter on the basis that the father would be participating and relying on the evidence of himself and his mother.  I am of the opinion that these matters justify consideration of a costs order being made.

4. I therefore turn to the mandatory considerations in s 117(2A) of the Act.

(a)      The financial circumstances of the parties

1. The Court has no information about the financial circumstances of the father.  He has not taken up the opportunity to respond to the application of the Independent Children’s Lawyer.

(b)     Receipt of legal aid

1. The father represented himself and did not have a grant of Aid.

(c)      Conduct of the parties

1. I accept the submission of the Independent Children’s Lawyer that the conduct of the father has been uncooperative and obstructive.  He did not comply with directions to file affidavits.  He did not file an amended response despite circumstances having changed considerably.  The main change being the intervention of the Secretary of the Department of Family and Community Services (‘the Department’), who thereafter exercised parental responsibility.

2. The father failed to respond to the correspondence of the Independent Children’s Lawyer on costs and arrangements for the chapter 15 expert to give evidence.[3]  Further, I accept that the father misled the Court to the extent that he denied receiving that correspondence.  I am drawn to that conclusion by his reliance on the factual contents of the letter in his submissions in support of his application for adjournment.

   [3]Exhibit 1

3. He gave no notice to the Court or the parties of an application to adjourn.

(d)      Failure to comply with previous orders

1. To an extent, the failure of the father to comply with orders contributed to the necessity for proceedings.

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

1. The father has been entirely unsuccessful with the application for parenting orders contained in his Response filed 23 July 2013.  However this is not a matter to which I give any weight.

2. The father is undoubtedly concerned about the children and was entitled to contest the mother’s application.

(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. Not relevant.

(g)      Any other relevant matters

1. There is expert evidence to the effect that the father has a psychiatric disorder.  He has been assessed as holding paranoid delusional ideas about there being “a conspiracy from all the constabulary and the legal profession as well as the ex-partner and all of her family”.[4]

   [4]Report of psychiatrist dated 16/11/2013, p 9, line 319; p 10, line 321

2. His insight into his situation and condition was assessed as appearing to be poor.  However the psychiatrist also expressed the view that there was no cognitive disturbance.  I take this to mean that the father is able to think and make decisions.

3. The father knew that the psychiatrist had assessed him as representing an unacceptable risk to the children.  He also knew that the diagnosis of the psychiatrist was provisional, given there had only been one interview.  The psychiatrist recommended treatment in hospital and articulated a way for the father to have a “healthy relationship with the children”.[5]

   [5]Report of psychiatrist dated 16/11/2013, p 12, lines 408-411 

4. The report was released on 23 January 2014.  The Department then removed the children from the father.  Since then, the father has apparently not sought his own medical advice about the diagnosis of the psychiatrist.

5. The father (and the mother) was advised by a Registrar of this Court about the procedure for filing urgent applications and causing subpoenae to issue.  The father did file an application in a case and a notice of abuse (Form 4) in February 2014.  The father also filed a notice of discontinuance in relation to property settlement in June 2014.

6. In March 2014 the father had been interviewed by a Departmental case worker for a family risk assessment.  He was advised at that time that Community Services had concerns about his mental health.  He was asked if he was willing to go and get a mental health assessment and treatment.  He said, “No, the answer is no.”  A little later he said he would undergo an assessment “if it was by someone reputable and on TV like Dr Phil”.[6]

   [6]Affidavit of Ms M filed 12/08/2014, p 56, point 8

7. The case worker candidly stated to the father that the Department would not support unsupervised face to face contact with the children until he received treatment.  The father stated he was not interested in getting mental health support and would wait “until the children are 12.”  I note that at that time the oldest child was 11 years nine months old.

8. The father made a choice not to obtain further medical advice or otherwise act on his mental health.

9. I do not consider that the father should simply be absolved from responsibility for his obstructive conduct in these proceedings on the basis of his psychiatric condition.  He has had the ability to make applications and represent his position to the Court since this matter came before me.  He consented to the assessment by the psychiatrist.  He has chosen not to obtain any further medical opinion, but instead to simply reject the assessment.  I consider that the stance of the father is a relevant matter to take into account. 

Conclusion

1. In my opinion it is appropriate for the father to contribute to the costs of the Independent Children’s Lawyer.  However I do not consider that the father should pay the whole of those costs.  All parties benefit from the work of an Independent Children’s Lawyer.  There were three parties in addition to the Independent Children’s Lawyer.

2. In the particular circumstances of this case, I consider the father should be responsible for one-third of the costs of the Independent Children’s Lawyer, namely $4,657 with three months allowed for payment.

3. An order has been made accordingly.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 1 October 2014.

Associate: 

Date:  1 October 2014