Yorke & Saunders
[2021] FedCFamC1F 32
•10 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yorke & Saunders [2021] FedCFamC1F 32
File number(s): PAC 5517 of 2018 Judgment of: HANNAM J Date of judgment: 10 September 2021 Catchwords: FAMILY LAW – COSTS – Where the mother seeks an order that the father pay her costs in relation to parenting proceedings on an indemnity basis – Where the father opposes the mother’s application and seeks that it be dismissed – Where the mother’s case for costs against the father primarily relates to his conduct in the proceedings and his lack of success in the proceedings – Where the Court is not satisfied that there are circumstances that justify a departure from the usual rule that each party bears their own costs – Mother’s application dismissed. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: D & D (Costs) (No. 2) (2010) FLC 93-435
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam L 23
Penfold v Penfold (1980) 144 CLR 311
Yorke & Saunders [2021] FamCA 426
Number of paragraphs: 40 Date of last submission/s: 18 August 2021 Place: Sydney Counsel for the Applicant: Mr Battley Counsel for the Respondent: Ms Bateman Solicitor for the Applicant: Katsoolis & Co ORDERS
PAC 5517 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YORKE
Applicant
AND: MR SAUNDERS
Respondent
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The mother’s application that the father pay her 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 pseudonyms Saunders & Yorke approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties to this application (“the mother” and “the father”) were engaged in parenting proceedings in relation to their two children (“the children”) which were heard in November 2020 and final judgment delivered in June 2021. In this application the mother seeks an order that the father pay her costs in a fixed sum in relation to those proceedings on an indemnity basis.
The father opposes the application, contending that the circumstances do not justify departure from the usual rule that each party to the proceedings bear his or her own costs. He seeks an order that the mother’s application be dismissed and that no order with respect to his payment of her costs be made on any basis.
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 and if there are such circumstances, whether such order should be made on an indemnity basis as sought by the mother.
BACKGROUND
The parenting proceedings for the children, a daughter aged 10 and a son aged six arose from the breakdown of the parties’ relationship of over 10 years. The central issue in the dispute was whether the father poses a risk to the children and if so whether that risk can be appropriately mitigated so that the children can share a meaningful relationship with him.
The parties commenced a relationship in around 2006 and began living together in 2007. At around this time the mother became aware of the father engaging in certain behaviours in his intimate life and of the existence of a community of individuals who engaged in similar behaviours.
In 2010 the parties’ daughter who is now 11 was born. Their son who is now six was born in 2014.
As the children grew older the mother became increasingly concerned about the father’s behaviours and practices associated with his lifestyle and the community of like-minded individuals. Although the father sought some professional assistance in relation to his conduct, the parties’ disparate views about that conduct and tension in the household grew, culminating in their separation in 2017. The father then moved out of the family home while the children remained living with the mother.
Shortly after separation the father opened an online business which sells products used by the community of his minority identity (“the father’s business”).
Following separation, the parties attempted to reach agreement as to the future parenting arrangements for the children and a resolution concerning financial matters but such attempts were unsuccessful.
In November 2018 the mother commenced proceedings seeking orders in relation to a property settlement only. In his response filed in December 2018, the father also sought orders for a future parenting arrangement in relation to the children.
Shortly after the proceedings were commenced, the parties were able to reach agreement in relation to property matters and orders were made with their consent resolving that dispute.
The family met with a family consultant in March 2019 for the purposes of a Child Responsive Program and the family consultant recommended that a single expert forensic psychologist be appointed to assist the court.
An expert holding the qualifications recommended by the family consultant was appointed and in January 2020 the expert’s report was released to the parties.
The final hearing took place across two days in November 2020.
In my Reasons for Judgment[1] I was satisfied that each of the children have received a benefit from having a relationship with both parents. So far as the father is concerned, the children will continue to receive such a benefit if only he is able to address a very significant shortcoming in his parenting capacity which, if unaddressed, presents a significant risk of harm to the children.
[1] Yorke & Saunders [2021] FamCA 426.
As was explained in the Judgment, the domain of harm posed by the father arises from the risk to the children if they are exposed to certain behaviours which the father considers part of his identity and lifestyle. I considered that the identified risks to the children posed by the father were the matters of greatest significance in these proceedings particularly having regard to the unchallenged evidence of the expert.
In summary, the expert was of the opinion was that it is almost inevitable the children will become exposed to the father’s behaviours, identity and business (which imports and sells products to the community to which the father belongs) and the expert considers it likely that such exposure will cause psychological harm to the children in various ways.
By the time the evidence had closed and in the course of final submissions, the parties consented to orders which provided for the children to live with the mother and for her to have sole parental responsibility for them. The only remaining significant issue was whether it is in the children’s best interest to spend time with their father and if so, the circumstances in which that should occur.
As explained in my Judgment, the shortcomings in the father’s parental capacity and the associated risks he poses to the children of psychological harm were the most salient matters in the proceedings. As indicated when considering the primary considerations, I was of the view that it was only in the children’s best interests for orders to be made to foster a meaningful relationship with the father if he could satisfy the Court that he does not pose the risks of harm to the children as identified by the expert. I was not so satisfied and having regard to all of the matters as discussed in that Judgment was of the view that the orders proposed by the mother that the children spend no time with the father were proper having regard to the children’s best interests.
For the foregoing reasons, in addition to the orders about where the children are to live and the exercise of parental responsibility, I also made an order that the children are to spend no time and have no communication with the father.
THE MOTHER’S APPLICATION
The mother seeks an order for costs which she identifies as being indemnity costs as follows:
The father within 28 days pay to the mother’s solicitors:
(1)Costs of $44,944 (being counsel’s fees of $26,400 and solicitor’s fees of $18,554) ; and
(2)Costs of $8,800 to be paid to the mother’s solicitor in respect of this application (as written).
The father submits that the circumstances of the case are such that there is no justification for the Court in departing from the usual rule that each party shall bear his or her own costs.
THE LAW AND DISCUSSION
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 a 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[2] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of 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.
[2] (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
According to the mother’s Financial Statement filed in the proceedings, she receives an average weekly income of $1,354 or just over $70,000 per annum. She also receives a small sum in government benefits and $150 a week from the father by way of child support. The mother is paying off the home in which she and the children live and other than child support is responsible for the financial support of the children.
In submissions made on her behalf reference is also made to the mother having borrowed an amount from a sister to pay legal fees. It is submitted that this sister is now seeking repayment but there was no evidence in the proceedings as to that loan or its repayment.
According to the father’s Financial Statement filed in the proceedings, he has an average weekly income of $1,656 being an annual income of just over $86,000 in his employed position. Varying evidence was given in the proceedings about the financial viability of his business. In his Financial Statement he deposes to receiving no income from his business though he deposes to his business which he operates as a sole trader having a value of $20,200.
As recorded in the Judgment,[3] under cross-examination the father agreed that he told the expert that his business had a turnover of $100,000 and that since the time of this assessment turnover had increased. He agreed under cross-examination that the business is “quite a substantial enterprise”. At another point in his oral evidence the father claimed that his business was not profitable but he continued to run it at a loss for taxation purposes and to maintain his ties with his minority community.
[3] At [66].
In circumstances where nothing further is known about the parties’ current financial circumstances in this application, on the available evidence as outlined I am satisfied that the father has some capacity to satisfy a costs order if it were made. Further, even if I accept the father’s contentions that the mother is in a superior financial position to him, this matter is not determinative as impecuniosity is no bar to the making of an order for costs.[4]
The conduct of the parties to the proceedings in relation to the proceedings
[4] D & D (Costs) (No. 2) (2010) FLC 93-435.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
It appears from the written submissions made on the mother’s behalf that the gravamen of her application for costs against the father relates to the way in which he conducted himself in the proceedings.
In particular, it is contended on the mother’s behalf that throughout the proceedings the father maintained strong beliefs and views as to his distinct identity and associated community, which in the face of expert evidence to the contrary, proved to be unreasonable.
The mother also refers to the father’s position under-cross examination which as discussed in my Reasons for Judgment “oscillated back and forth between acknowledging some abnormality with his minority identity and insisting that his lifestyle was normal”[5]. At a later stage in his evidence, the father expressed a willingness to engage in therapy to address these matters in order to maintain his meaningful relationship with the children which, as the mother relevantly points out, was a matter which I considered disingenuous having regard to the expert’s evidence that the father has come to accept his desires and behaviours as part of his identity and would unlikely be able to engage successfully in any change therapy given his presentation under cross-examination.
[5] At [46].
Apart from submitting that such conduct by the father is “lamentable” and “one of self-obsession and obstinacy”, the mother does not explain further what impact, if any, it has had on her position in the proceedings or on reaching a conclusion generally. It appears from the general tenor of her submissions relating to this matter that she attaches significant weight to the father being ultimately wholly unsuccessful in his application in suggesting that he ought not to have pursued his case as he did.
While in written submissions made on his behalf the father agrees that his behaviours associated with his minority lifestyle was deemed by the expert to carry a great deal of controversy as well as certain risk issues for the children, he argues that these very matters assumed particular significance in determining the proper future parenting arrangements for the children given evidence in the proceedings that the children did enjoy a loving relationship with him.[6]
[6] See [158] of the June 2021 Judgment.
Section 117(2A)(c) of the Act upon which the mother relies provides that in considering whether to make an order for costs the Court should have regard to the conduct of the parties in proceedings including “in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters”. Although the list of conduct provided in that sub-section is non-exhaustive, a reading of that provision would suggest that the behaviours that may justify a cost order are those engaged in by parties which contravene the usual practice of the Court prescribed by the Family Law Rules 2004.
I am not satisfied that the mother identifies any conduct by the father which could amount to justifiable circumstances contemplated by section 117(2A)(c). Her case against the father relates primarily to the nature of the father’s application and she effectively does little more than criticise him for running a case which was ultimately unsuccessful. Generally, each party is entitled to pursue their own case, adduce any relevant evidence in support and thereafter have it tested on its merits. In the present case, the father was entitled to have his case tested at trial given the ambit of the dispute related entirely to whether it was in the children’s best interests to spend time with him and if so, the circumstances in which that should occur.
Further, I do not accept that the father was wholly unsuccessful in his application as the mother contends. The orders made on a final basis relating to parental responsibility and the children’s residence were consented to by the parties and the ICL in the course of final hearing. Although the order made providing that the children spend no time and have no communication with the father was an order made in line with the mother’s final proposal making her successful in this regard, the balance of the orders relating to a restraint on the mother and notification requirements between the parties were sought by the father and ICL, respectively. Thus, so far as the final orders were an amalgam of orders sought by each of the parties and the ICL, little weight in my view can be attached to this matter.
CONCLUSION
Having regard to the foregoing matters, and notwithstanding that there is nothing to prevent any one factor being the sole determinant for an order for costs,[7] I am not satisfied that there is sufficient 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 application with respect to indemnity costs.
[7] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam L 23.
In all of the foregoing circumstances, I dismiss the mother’s application that the father pay her costs and make orders accordingly.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 10 September 2021
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