FAMILY COURT OF AUSTRALIA

munro & elmi (no 2)	[2012] FamCA 270	

FAMILY LAW - COSTS	

Family Law Act 1975 (Cth)	

Charles and Charles [2007] FamCA 276	

APPLICANT:	Ms Munro	

RESPONDENT:	Mr Elmi	

Independent children’s lawyer:		

FILE NUMBER:	DGC	1749		of	2009	

DATE DELIVERED:	30 April 2012	

PLACE DELIVERED:	Melbourne	

PLACE HEARD:	Melbourne	

JUDGMENT OF:	Cronin J	

HEARING DATE:	By way of written submissions	

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT:	Howard Bear Legal Consulting Services	
SOLICiTOR FOR THE RESPONDENT:	Sharrock Pitman Legal	

Orders
(1)	That the father pay one half of the mother’s costs by agreement and failing agreement as assessed pursuant to a schedule to the Family Law Rules 2004.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Munro & Elmi (No 2) 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 Melbourne	

FILE NUMBER: DGC 1749  of 2009

Ms Munro 	
Applicant

And

Mr Elmi 	
Respondent

REASONS FOR JUDGMENT
1.	On 9 March 2012, I made orders relating to a parenting dispute between the parties which varied orders that they had consented to on 23 February 2010 in the Federal Magistrates Court.  
2.	It is significant to note that the orders I made were different from those to which they had consented in 2010.  
3.	In the final orders, I provided for either party to make an application for costs.  By written submission dated 19 March 2012, the mother made that application for costs.
4.	By written submission filed on 5 April 2012, the father opposed any order for costs being made at all.
5.	This was a parenting dispute conducted over five consecutive days.  The duration occurred because of the number of witnesses, the significant cross-examination of each of the primary parties and the requirement that there be findings of fact in relation to a number of contentious issues.
6.	The submission of the father ran to 35 pages.  It traversed many things but many of them were irrelevant to the issue that I have to determine.  The issue of what counsel said at pre-trial hearing in September 2011 was highlighted.  It was not what counsel said in September but what the father said in the witness box of his counsel’s statement that assists in the determination of this matter.  There was also a reference to the earlier proceedings in the Federal Magistrates Court.  It was submitted that in relation to the conduct of the proceedings by the father, what occurred in that court was relevant.  I reject that because it was not in evidence before me.  Much criticism was made in the submission about the conduct of the mother in the trial before me relating to the voluminous emails she sent the father.  To the extent that that was an attempt to rerun the case, I refer only to the matters that I ruled in my reasons for judgment.  Much was made of the statements about the parties wanting to end matters but curiously, they did not.  The case ran before me and each party ventilated their concerns about the other as a parent.  Ultimately, I made findings and determined a position which I considered was in the best interests of their child albeit that was not what either party had submitted was the appropriate solution.
7.	The mother submitted that a stand-alone consideration for costs arose out of s 117AB of the Family Law Act 1975 (Cth) (“the Act”).  That provision reads;
(1)	This section applies if: 
	(a)	proceedings under this Act are brought before a court; and 
	(b)	the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings. 
(2)	The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings. 
	The question must be asked as to whether it is appropriate to go beyond the findings that I made in the reasons for judgment.  In my view it is not permissible to do so.  
8.	Counsel for the father submitted inappropriately that s 117AB ceases to have legislative effect in a few weeks time.  I am dealing with the law as it now stands and that which applied during the trial.  In any event, having regard to what I said in Charles and Charles [2007] FamCA 276, and to which both parties referred, there is no a basis for me to find that I was satisfied that the father knowingly made a false allegation or statement.
9.	In my view, there is no basis for making an order under s 117AB of the Act.
10.	The law which I am applying is that set out in s 117 of the Act.  Simply put, the section provides that each party in proceedings before the Court shall bear their own costs unless there are circumstances that justify a departure from that principle and in making that determination, the Court must take into account the matters set out in s 117(2A). 
11.	The first question is whether there is a circumstance which justifies a departure from the principle.
12.	The mother submitted that the discretion was wide.  I agree.
13.	It was submitted that even if s 117AB did not apply, the father maintained at all relevant times that he believed that the child had been deliberately hurt and that the mother had hurt him for the purposes of setting the father up.  Counsel for the mother submitted that even if the father did not knowingly “peddle” the allegations, he did so recklessly and without proper regard to the evidence.  It was the father who called evidence from a medical practitioner and to whom he had not provided details of what the child had told police investigators.  In submissions on behalf of the father, it was put that the trial was not run on the basis of abuse because he had abandoned that at trial regardless of what his belief was.  There can be no doubt that the father altered his position during the trial but I am satisfied that the mother had to prepare a trial and days of evidence were given before that change was made.  It was submitted on behalf of the father that there was no finding in the judgment that he had fabricated the conversation between he, his sister and the child in a motor car.  No finding was made but the dilemma was that the father told the doctor of the statement by the child about the mother but not a similar statement to police about himself.  That resulted in the trial being extended not only by cross-examination but also by the calling of the doctor.
14.	In my view, the way in which the father conducted the trial despite his change of position, extended its duration and caused the mother significant costs in preparation.  Costs are not intended as a punishment (as seems to be implied from the submissions of counsel for the father) but rather to compensate a person who is obliged to participate in litigation unnecessarily.  In this case, the mother was the applicant and her case was put on the basis that the child was not coping with the extent of the arrangements under the existing orders but she was also concerned about the approach of the father towards her.  Findings were made about those matters.  The father’s position about his level of communication with the mother was that he did not want to extend the life of litigation which in his view, had been resolved in February 2010.  There can be no doubt however that he strongly believed that the mother had hurt the child.  Accordingly, the mother was involved in litigation that was extended unnecessarily because of the father’s attitude towards her as a parent. 
15.	The simple finding of the justification for an order for costs cannot be made on the basis of what occurred in the litigation alone.  Section 117(2A) requires the Court to consider a number of matters prior to making any such order.  I turn to those issues.
16.	The Court is required to consider the financial circumstances of each of the parties to the proceedings.  Much was made of the precise figures of the father’s income.  It is the financial circumstances rather than the income that is relevant.  It is clear that the father is a highly paid professional who was sufficiently well-financed to be able to afford two counsel including senior counsel.  The mother too was represented by two counsel.  I conclude therefore that neither party was impecunious.  I also conclude that the father has the capacity to pay an order for costs having regard to the way in which he conducted the litigation knowing that it would be extended over a number of days.
17.	Section 117(2A) also requires the Court to consider whether a party has failed to comply with previous orders of the Court and which therefore necessitated the proceedings.  The father overheld the child and on at least one occasion, gave instructions to his solicitor to write a letter justifying his position in circumstances which were indefensible.  Those matters precipitated the proceedings and caused significant use of resources of the parties in relation to affidavit evidence and cross-examination on the issues before me.  In my view, s 117(2A) entitles the Court to look at why the proceedings were necessitated and what happened from a practical perspective within those proceedings.  In this case, the father’s focus was on the mother’s behaviour and had he adopted a pragmatic approach which was that even with his belief, the mother was going to be a significant parent in the child’s life, these proceedings may not have been as extensive as they were.  The mother had little choice but to continue with the proceedings having regard to the allegations she knew were being made by the father as set out in his affidavit material.  The father’s conduct of the proceedings therefore exacerbated the mother’s costs position.  
18.	Section 117(2A) also requires the Court to consider whether a party has been wholly unsuccessful.  Neither party was wholly unsuccessful in this case because I did not accept the position of either party in terms of final orders.  
19.	Section 117(2A) also requires the Court to consider other matters that it might think are relevant.  This particular provision highlights the discretionary nature of the determination.  In my view, this was a case where the mother was expressing serious concerns about how the child was coping with the 2010 orders and the father was not responsive.  Counsel for the mother referred to my findings that overall, the mother’s evidence was believable yet the father’s evidence was perplexing because of his unreasonable approach in putting the mother through unnecessary and appalling trauma.  Those matters go to the issue of the extent to which the mother has had to be involved in legal costs to prepare for trial and then conduct it.  The father well knew the mother’s position because it was made clear at an opening of the case in September 2011 and he had the opportunity to understand her case from the affidavit material which she had filed.  Having had that opportunity, he still proceeded to litigate and then altered his position towards the end.  
20.	In addition, there can be no doubt that both parties commenced the case on the basis that it was accepted that there could not be an order for equal shared parental responsibility.  All of those matters are relevant to the issue of the extent to which the costs in this case have become untenable by virtue of the way in which the proceedings were conducted.  
21.	With all of those factors in consideration, it is my view that there is a justifiable circumstance to find that the principle set out in s 117(1) of the Act should be departed from. 
22.	In my view, the father should contribute towards the mother’s costs.  
23.	No specific order for costs was sought other than that if agreement was not reached, the costs should be assessed.  I agree with that proposal.  In my view, the position could not have been clearer from the day in which I held the first day of hearing in September 2011.  Prior to that, there were certainly skirmishes before the Federal Magistrate  during which the mother was unrepresented and the arguments did not provide defined issues in dispute which would have enabled each party to assess what was going to be litigated.
24.	The mother was not entirely successful in that not only did she not obtain the orders she wanted but she also sought orders that the father’s time be severely curtailed such that there be no holiday commitment at all.  That position was never clarified.  
25.	An order for the payment of costs is still discretionary.  I am satisfied that the majority of the costs that the mother has incurred have been as a result of the father’s conduct of the proceedings.  Accordingly I assess that the father should pay one half of her costs as agreed and failing agreement as assessed.  For the sake of clarity, I make it clear that those costs are to be determined according to the scale set out in the schedule attached to the Family Law Rules 2004.
I certify that the preceding Twenty Five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 April 2012.

Associate:  
Date:  30 April 2012