Zammitt and Zammitt (No. 2)

[2009] FamCA 593

FAMILY COURT OF AUSTRALIA

ZAMMITT & ZAMMITT (NO. 2) [2009] FamCA 593

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Zammitt

RESPONDENT: Ms Zammitt

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission NSW

FILE NUMBER: SYC 1099 of 2007

DATE DELIVERED: 8 July 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 29 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hugh Byrne Solicitor

SOLICITOR FOR THE RESPONDENT: Mr Coustas, Lexington Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Connor

Orders

1. On or before one (1) month from the date of these orders each parent is to pay the sum of $2,238.50 to the Legal Aid Commission of New South Wales in satisfaction of the outstanding fees owing to Dr W.

2. On or before three (3) months from the date of these orders each parent is to pay the sum of $4,936.25 to the Legal Aid Commission of New South Wales in satisfaction of outstanding costs and disbursements including the issue and service of subpoena and counsel’s fees;

3. On or before six (6) months from the date of these orders the mother is to pay to the solicitors for the father costs fixed in the sum of $10,000.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1099  of 2007

MR ZAMMITT

Applicant

And

MS ZAMMITT

Respondent

And

LEGAL AID COMMISSION NSW
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Applications

1. This is the determination of various applications for costs arising from judgment delivered in parenting proceedings on 7 April 2009. 

2. The Independent Children’s Lawyer seeks orders for (i) payment of the remainder of costs associated with the involvement of the ICL in the proceedings and (ii) further payment of fees to Dr W, the single expert, more particularly related to further material he inspected and reviewed and for his attendance at Court during the hearing. As for (i), the amount claimed is $3,718 which remains after deducting the $3,300 already paid by the parties equally. As for (ii), the total amount claimed is $10,631.50 which is made up of:

   Issue and service of subpoena   2,322.50
   Counsel’s fees   3,832.00
   Dr W’s further fees [for particulars per invoice]               4,477.00
   Total  10,631.50

3. The father seeks various orders: (i) that the mother pay his costs of and incidental to the substantive proceedings on a party/party basis as agreed and failing agreement as assessed; (ii) the mother be responsible for 2/3 the costs of the ICL; and (iii) the mother pay the costs of Dr W, the single expert, for appearing at the trial to give evidence.  Mr Byrne advises that the application for the father’s costs per (i) covers the period from the filing of the mother’s response on 3 July 2007, being the first indication she was seeking to eliminate overnight time between the children and their father, and his costs on a party/party basis are estimated to be $28,000. 

4. The mother agrees to pay half the fees of the ICL [half of $3,718].  As for the disbursements claimed by the ICL, including Dr W’s further fees, the submission is made that no objection is taken to equal distribution of whatever costs is awarded but there is concern about the “level and necessity” of the amounts claimed.  She seeks dismissal of the costs claim by the father, which would leave each parent to pay their own costs. 

Principles

1. The provisions of s 117 of the Family Law Act 1975 govern the making of costs orders. It is the general rule under s 117(1) that each party is to bear his/her own costs but s 117(2) permits the Court to make such order as it considers just if it is of the opinion that there are justifying circumstances. In considering what order (if any) should be made regard is to be had to the matters referred to in s 117(2A). Those which rated mention in the submissions are:

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

   (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;

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

Submissions for the father

1. The broad submissions is made by Mr Byrne on behalf of the father that making orders according to his application, and therefore having the mother pay a substantial part of his costs, would be a proper exercise of the Court’s discretion under the Act. It is contended that justifying circumstances can be found by reference to several of the s 117(2A) factors:

   (a)While acknowledging the evidence of their respective financial circumstances is ‘sparse’, it is submitted that the mother is in a far stronger financial position.  The mother is employed as a teacher and the father operates his own business.  According to a child support assessment the father’s adjustable taxable annual income is $52,799 compared to the mother’s of $75,855.  He pays child support of $226.33 per month.  The father lives in a home at E owned jointly with his current wife and subject to a mortgage of $480,000.  The mother lives in the former matrimonial home at T and while nothing is said about whether or not it is subject to a mortgage it was unencumbered at separation and the father transferred his interest in it to her for $90,000 as part of their property settlement in 2003.  It is also said that the father's legal costs for the 2003 and 2004 proceedings concluded before Justice Le Poer Trench amounted to $50,000 and no costs orders were made in those proceedings in circumstances where the mother was working as a teacher on a casual basis. 

   (b)On the topic of conduct, the essential submission is that the mother persisted with “an untenable position” with respect to the children’s arrangements throughout the proceedings.  Her response filed 3 July 2007 sought to drastically change arrangements which had been in place for almost three and a half years and she maintained her “entrenched position” from that time despite the recommendations contained in Dr W’s report of November 2007.  It is further submitted that during the course of the proceedings she failed to comply with specific directions for the filing of material and in particular failed to file an amended response and her affidavit material on two occasions - namely by 6 February, 2008 and 7 March, 2008 - thereby prolonging the proceedings and resulting in the father incurring additional costs because the proceedings had to be re-listed to monitor her compliance with further directions. 

   (c)Furthermore, it is contended that the hearing was prolonged as a result of her pursuit of unsuccessful issues and in particular the allegations of sexual and physical abuse made against the father in relation to the child P.  Much of the time was spent in dealing with such issues.  The father relies upon the findings reflected in the judgment.  The father did not require Dr W to attend at the hearing and was content to rely upon his report as prepared.  Dr W’s need to look at further material and to attend Court was the result of the mother’s failure to accept his recommendations and the way she ran her case and the allegations she maintained.  In the circumstances she should be solely responsible for the costs of Dr W undertaking further preparation work and attending to give evidence. 

   (d)Finally, it is submitted for the father that the mother has been "wholly unsuccessful" in that she sought orders and maintained a position throughout that the children have no overnight time with the father.  Contrary to this, the orders made in fact increased the time the children would have in their father’s care. 

Submissions for the mother

1. While the submissions for the mother will be noted, it has to be said that some of them have no basis in evidence and therefore carry no weight in the exercise of discretion. 

2. In his reference to the costs of the ICL for issuing subpoena, Mr Coustas agrees subpoena were issued but he says they repeated subpoena issued in previous proceedings and while he accepts some new subpoena needed to be issued, it is a question whether or not all of them should have been issued.  Mr Coustas says he does not know how that can be untangled.  Referring to counsel’s fees, he says the matter could have been conducted by the solicitor without counsel being briefed.  Referring to Dr W’s fees, he says they seem to be “quite over the top” and not in accordance with any legal Aid scale.  Nonetheless, it is contended Dr W was required to attend Court to give further evidence so as to amplify his report, which was of great assistance to the Court, because of the complexity of the case and it would have been very difficult to work through the case without him.  The matter called for his presence, it was not something that was done purely on the whim of the mother and she should not be liable for the additional costs involved. 

3. Mr Coustas made further submissions apparently related to the conduct factor.  It is said that the mother did not commence the proceedings, she had accepted the previous orders though she was not happy with them, she responded to the father’s claim and in doing so aired the views the children had expressed to her and followed the desires of the children and sought to look after the interests of the children as she saw fit.  In a case as complicated as this was, it was appropriate that Dr W’s evidence be heard, that his report be tested and all of his recommendations considered fully.  In fact, it was only in his report that an issue that seems to have had some impact on the case came to the surface – namely, the allegations of sexual abuse – but she did not raise it, it was raised by Dr W in his report.  She tried to steer away from it; it was not “something she was trying to turn this case into an argument about whether the father had committed that offence”.  She may have an opinion about it and it may color her view about appropriate orders to be made, but it was not something she turned into a live issue – other parties did that and some considerable time was spent on the issue.  The finding that there is no reason for there not to be overnight time with their father appears to have been properly considered and while the mother may “quibble about the result”, she had shown after the first judgment [ie the proceedings concluded before Le Poer Trench J] that she has worked to make those orders work and she will do the same with these orders.  She has given her whole life to these children over the years, she has little social life herself and little opportunity to go on holidays overseas as has the father; it is understandable that she comes to court and tries to protect the children’s interests as she sees them.  She has never prevented or stood in the way of their time with the father and she has sought to foster that time as much as she can, much as it pains her to do so.  She is a law abiding person who attempts to work within the framework set by the court and has always done that. 

4. Mr Coustas argues that the mother has not been entirely unsuccessful.  The father’s submission to the contrary overlooks the realities of the situation - namely, the time the father sought was six days per fortnight and the mother sought no overnight time – and her proposal was much closer to the orders than the father’s. 

5. As for their respective financial circumstances, Mr Coustas refers to the parties’ income reflected on the child support assessment notice and comments amongst other things that because the father operates a business it might be fairly easy to “fudge the books”.  The mother receives little by way of child support. 

6. There are no grounds for making the orders the father seeks; since they both walked away disappointed the only right result is for each to pay their own costs. 

ICL

1. In her reply, the ICL says she has authority to reduce the amount related to the issue of subpoena to $1500.  As for Dr W’s fees, different scales of fees for experts apply according to whether the parties are legally aided or not but this was a private appointment.  Dr W’s memorandum broke down the fees into their several parts.  The ICL also pointed out that on 12 September 2007 the parents had consented to orders making each liable for half of the costs of Dr W’s assessment and report and any additional costs if he is required to attend court for cross-examination.  They also consented to orders requiring each to pay within 21 days an amount of $3,500 to the Legal Aid Commission in respect of his fees upon completion of his report and to each pay half of any shortfall within 21 days of a request by the Legal Aid Commission.  At the time Dr W was briefed both parents were free to inquire about anticipated costs before they agreed to those orders, including the cost of his attending court at a later time and other charges for further reading and reviewing.  As for the briefing of counsel, she called the case a “serious matter” and maintains it was appropriate to brief counsel. 

Conclusions

1. The mother has a higher income than the father.  Both parents own the home in which they live, the father’s is subject to a relatively substantial mortgage, and the mother did not take the opportunity to clarify her position on that front.  The probabilities suggest, therefore, that she is in the stronger financial position overall.  Nonetheless, she has the children in her care for most of the time and the child support paid by the father is relatively modest. 

2. To the extent criticism was levelled at the ICL about the issue of subpoena, it failed to particularise the complaint or identify any duplication or unnecessary step taken and is therefore without foundation.  Accordingly, it is accepted the costs incurred on that front are legitimate and reasonable. 

3. While the mother’s solicitor also levelled criticism of the ICL briefing counsel for the hearing, he referred elsewhere in his submissions to the matter being ‘complicated’, which it was, and given the complications of unravelling where the best interests of these children lie it is entirely understandable and appropriate that the ICL would have briefed counsel. 

4. It is also accepted that Dr W’s review of further material and his attendance at the hearing to give further evidence elaborating on his report was necessary.  As for the level of his charges, enquiry could have been made at an earlier time of his fees related to this contingency and, in any event, nothing substantive was provided to the Court to establish them to be excessive or unreasonable. 

5. As for the question of whether either party was “wholly unsuccessful”, the mother was not successful in her quest to have overnight time cease and to limit the children’s time with their father to day visits; the father was not successful in having the block periods his formal application had sought but he did succeed in having more time with the children than previously.  If a measure is to be made of lack of success, the father could be seen as more successful on the outcome. 

6. As for other matters, it is certainly true that the mother did not raise the issue of sexual abuse.  It was raised by Dr W who came across it in documents brought to Court under subpoena.  The judgment contains a complete discussion of the attitude demonstrated by the mother to this issue of abuse/protection, the inconsistency between her activities “out of court” and “to the court”, not limited to this round of proceedings, and to her belief that the abuse did happen but it is no longer happening and she sees no risk of harm to the children from being in their father’s care and so on – all in the face of criticism of the ‘system’ aired in her evidence for failing to protect the children.  Her silence about the sexual abuse she was agitating outside the court environment, her approach to the topic on that being revealed, and the case she presented to the Court on the subject right through to closing address were all without satisfactory explanation.  That she did not raise the issue is hardly to her credit in the circumstances discussed in the judgment.  But the father did have to address it when it emerged from inspection of documents, plainly in doing so he incurred costs that would not otherwise have been run up, and it is an issue he can be said to have been wholly successful in addressing. 

7. When all considerations are weighed, it is my opinion there are circumstances to justify the father being given some relief with the costs he has incurred.  In coming to that view I have regard to his need to address the issue just mentioned and his success in doing so.  I also take into account the fact that the mother is in employment and appears to be in the stronger financial position, at least as to income and probably capital.  However, the financial relief that he might otherwise be given is reduced by reason of the mother’s obligation towards the financial support of the children and the modest level of child support paid by the father on his income.  In the final analysis, I regard the following as being a just outcome:

   (i)each parent to pay half the disbursements [issue of subpoena, counsel’s fees, Dr W’s further fees] incurred by the ICL being $10,631.50 in total;

   (ii)each parent to pay half the balance of the costs incurred by the ICL being $3718 in total;

   (iii)the mother to pay to the father costs fixed in the sum of $10,000 being the equivalent of approximately one-third of the estimate of the costs he incurred on a party/party basis. 

Time to pay

1. The ICL takes no objection to time to pay amounts other than Dr W’s fees.  Mr Byrne asks for two months for whatever the father ends up having to pay.  Mr Coustas asks for a longer period of time for the mother – 4 or 5 months - to pay the Legal Aid Commission whatever the amount assessed and she would require a “considerable” time if the father’s claims are successful. 

2. The orders will provide for the parents to pay Dr W’s outstanding fees within one month, the remainder of the ICL’s costs and disbursements within three months, and for the mother to pay to the solicitors for the father the fixed sum of $10,000 within six months. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: