Advice is the key to success in family law

Advice is the key to success in family law

Hillier & Olly

My Determination

10. Quite obviously, however, the litigation between Colgate-Palmolive Company and Cussons Pty Ltd in the Federal Court was commercial litigation between two corporate business competitors. In such proceedings, costs generally follow the outcome of the litigation. The stark difference between that and litigation in the family law courts between parties to a former marriage or de facto marriage that has produced a child or children is plainly recognised in the fact that the legislature has deigned it appropriate to statutorily provide that the parties to proceedings under the Family Law Act shall bear their own costs of the proceedings, subject to a discretion conferred on the Court to depart from that general position in circumstances where the Court considers such departure is justified.
11. It is, in my judgment at least, recognised that relationship breakdown, particularly where there are children involved, can be productive of great trauma and stress for one or both parties to the relationship. That trauma and stress does in some instances lead to uninformed, misguided behaviour, particularly where the person does not have reasonable access to competent, specialist advice from lawyers and counsellors. Sometimes, when one party does have access to that advice and the other does not, the difficulties being experienced by the person who does not have that access can be magnified. Suspicion and mistrust may grow and complete loss of insight and judgment can follow. Relatively minor behavioural matters observed in the child can be seen, heard and interpreted through a distorted framework of perception and understanding. Ending this and returning post-separation, co-parenting relationships to appropriate, child-focused equilibrium is sometimes very difficult. Indeed, in some cases the lack of insight on the part of a parent can be such that strict application of best-interests principles can lead to severe restrictions being imposed by the Court on the time children spend with a parent.
12. That is the direction in which this case was inexorably heading from when the proceedings were commenced until the father was able to be put in a position to access expert legal and counselling assistance. That he realised and accepted that he needed that assistance demonstrated at least a modicum of insight on his part into the nature of the difficulties he was facing. It is that modicum of insight, it is hoped, from which the further development of greater insight will spring so that the child will be able to further her relationship with her father in the future.
13. Whilst it might be relatively easy to continue to be critical of the father and to consider that by his generally insight-less behaviour over many months he has contributed to the circumstances in which the mother has incurred tens of thousands of dollars in legal fees, it is in my judgment no less important to acknowledge the significance of the involvement and influence of the lawyers and the family therapist the father did engage when he was able to. Their influence on the father, and the change in his position their involvement brought about was extremely important in providing a base for parenting orders to be made that give the child a chance to maintain and further develop a meaningful relationship with the father as she grows. That prospect, according to the expert witness, is something the child herself craved.
14. The father’s financial position at the end of the proceedings, including, in particular, the property adjustment proceedings, is clearly inferior to that of the mother. For the interim parenting orders to gain any traction insofar as farther improvements in the father’s insight and behaviour are concerned, such that the child might be able to begin to safely spend unsupervised time in the father’s care, the father is going to have to have money to spend on the ongoing family therapy (including the mother’s and the child’s involvement in that) and the interim supervised time the child is expected to get to spend with him. Ongoing involvement with the specialist family lawyers who have been advising and representing the father will also require him to be able to pay for it. Ordering that some or all of the $55,241 that is now held in the mother’s solicitors’ trust account for the father pursuant to paragraph (19)(iv) of the orders of 11 November would make it most unlikely that the father could continue to retain his current solicitors as the evidence adduced at the trial shows he already owes them more than that. Ordering him to pay costs far in excess of that amount would make it most unlikely that the family therapy and supervision would be able to be paid for by the father in the future either. Indeed, I am satisfied that it would probably ensure that it did not happen.
15. The relationship between the mother and the father in this case needs to be given every chance to begin to improve for the child’s sake. A costs order, such as that sought by the mother now, would not, in my judgment, assist at all in that process.
16. Furthermore, although submissions were made by counsel for the mother about levels of success in the proceedings, it certainly cannot be said that the father has been “wholly unsuccessful” in the property or the parenting proceedings. Conversely, one could certainly not look at the outcome of the proceedings and compare it to the final orders the mother contended for in their various forms along the way from the commencement of the proceedings to the November judgment and conclude that the mother has been wholly successful. It is, I venture to postulate, because of the very rarity of complete success or failure in parenting orders litigation that costs orders are made so infrequently in such proceedings.
17. Whilst I appreciate that the mother has spent a lot of money on her legal costs and outlays in these proceedings, particularly when the amount she has spent is viewed relative to the total wealth of the parties – wealth that might have been better accumulated and used for furthering the well-being of the child in the future – I do not lose sight of the fact that the mother voluntarily elected to retain solicitors pursuant to a contract by which she agreed to pay nearly twice as much for their services as is set out in the Court approved scale of costs, nor the fact that she did so, I have no doubt, knowing that costs orders are not easily obtained in this Court.
18. In the end, I am, with respect to the mother and her legal representatives, not satisfied that the circumstances of this case are such that an order for the father to pay the mother $136,736.86, or any amount thereof, is justified. I will dismiss her application for costs and order that the funds held in the mother’s solicitors’ trust account for the father be paid to the trust account of Jones Mitchell Lawyers.