Conduct of Father causes costs order

Conduct of Father causes costs order

Burnham & Mullane

CONTENTIONS

Contentions of the mother

16. In respect to s 117(2A)(a), the mother submitted that while she is not aware of the father’s complete financial circumstances, she is aware that he is currently employed and earns more than $80 000 per annum. It was submitted that whilst the father is not wealthy, he has nonetheless put the mother to the expense of litigation. It was noted that the mother had spent approximately $20 360 on legal fees as result of these proceedings.
17. In terms of s 117(2A)(c), the mother argued that the father’s behaviour has been “intimidating, disruptive and overbearing”. It was submitted that examples of that behaviour were that the father:
    • had repeatedly threatened to commence legal proceedings if his demands were not met; and
    • continued to press for the child to undergo allergy testing despite the child experiencing anxiety about such testing occurring.
18. It was also submitted that the conduct of the father should be viewed in the context of the mother being in a position of vulnerability “due to a power imbalance in relation to a history of family violence”.
19. In terms of s 117(2A)(e) it was submitted that having regard to the reasons set out in the July 2016 judgment, the father’s application was without merit and had been wholly unsuccessful.
20. In terms of s 117(2A)(f), reference was made to a letter from the mother’s solicitors sent to the father’s solicitors inviting the father to withdraw his application on the basis that it had no reasonable prospects of success.^[8]
21. In support of her application for indemnity costs, it was submitted on the behalf of the mother that, had the father been properly advised, he would not have instigated proceedings or continued his application particularly in circumstances where he had been advised that the mother would seek a summary dismissal of his application on the basis of Rice & Asplund.
22. It was also submitted that:

[T]he father’s behaviour can be seen as petty, lacking child focus (wanting further allergy tests when the child had a phobia) and especially discourteous and downright rude to the mother.

23. In that respect, reference was made to the characterisation made in the judgement of a text sent by the father to the mother at 3:13 pm on 13 March 2015 as a:

…gross discourtesy to the mother. Moreover, the tone of the email was highly inappropriate and included accusing the mother of inflicting “child abuse” on [the child].^[9]

24. Further, it was noted that the Consent Orders were entered into by the parties in June 2014 after the matter had already undergone three – four days of judicial hearing time. In those circumstances, it was submitted, it was unreasonable for the father to apply for a variation of those orders within a period of approximately two years.
25. It was argued, on the behalf of the mother, that the Court should view the litigation commenced by the father in the context of Dr E’s observations that the father had engaged in a course of conduct that was unfairly critical and undermining of the mother. In that respect it was argued that the commencement of these proceedings was the culmination of the father’s “bullying” of the mother that had commenced as early as two weeks after the Consent Orders were made.
26. Re-commencement of the proceedings, it was argued, demonstrated the father’s “loathing for the mother and a reckless disregard for the welfare of the child”.

Contentions of the father

27. It was argued on the behalf of the father that the basis on which he brought this subsequent application was not a matter that had been the subject of prior judicial determination on a substantive basis.
28. It was noted that the parties entered into the Consent Orders against the background of the report of Dr E dated 9 September 2013. That report, it was submitted, should be viewed in the following context:
    • The report was based on interviews with the parties which occurred in July 2013. The report was subsequently released in September 2013, almost one year prior to the Consent Orders being made and almost 3 years prior to the hearing on 30 May 2016. The child was aged 4 years and 10 months at the time of the interviews and was enrolled in preschool whereas at the time of the hearing on 30 May 2016, the child is now aged 7 years 8 months and enrolled in Year 2.
    • There was no record of the child having significant absences from preschool at the time the Consent Orders were made.
    • In 2015 the child was reported to have seventy partial/whole absences from school, several of which appeared on their face to have been unjustified.
    • It was submitted that the views expressed by Dr E were untested and while there had been cross examination of Dr E at the final hearing in July 2014, Dr E’s oral evidence was neither recorded nor the subject of any findings.
    • Further, it was argued that the report of Dr E had been prepared at a time when the child had not yet been prescribed with any medication, including medication for Attention Deficit Hyperactivity Disorder.
29. It was further argued that the July 2016 judgment was made in the context of proceedings which were listed into a judicial duty list where there was no testing of the evidence of either party through a process of cross examination.
30. It was also argued that the father had commenced the proceedings as a result of his concerns that the mother’s conduct was not in the child’s best interests and was potentially detrimental to the child’s health and development. In particular it was argued that the father had significance concerns as a result to:
    • The child’s very poor school attendance;
    • learning that the child was prescribed with Prozac in March 2016 but not being provided with the prescription or any details regarding treatment;
    • The child’s ongoing allergy symptoms being left untreated;
    • the mother failing to communicate with the father in relation to his reasonable requests for information or to clarify concerns raised by him in relation to the child’s health, and that she had excluded him from consultations with the child’s treating specialist which had led to Prozac being prescribed; and
    • the father’s inability to resolve the matter with either the assistance of the family therapist, his legal representatives or via Family Dispute Resolution, due to the mother’s failure to engage.
31. It was submitted that while the father was wholly unsuccessful in his application, that factor alone does not warrant a departure from the general rule provided for in s 117(1).
32. In terms of the financial circumstances of each of the parties, it was submitted that this is not a case, such as in Kelly & Kelly (No 2) (1981) FLC 91-108, where there is a substantial disparity between the parties’ financial circumstances. It was noted that the father is self-employed and that his income fluctuates. It was submitted that the father does not have the capacity to meet any order for costs, either on a party/ party or on an indemnity basis.
33. The making of an order for costs, it was submitted, would preclude the father from being able to purchase supplies for his painting business and would result in him being unable to earn an income.
34. In terms of s 117(2A)(c) it was submitted that the mother’s reliance on isolated excerpts from the report of Dr E failed to take into account:
    • the age of the assessment; or
    • the fact that the report noted positively the father’s conduct in seeking assistance and information in parenting matters regarding the child, which, it was submitted, is consistent with the father’s conduct in filing his Initiating Application to attempt to seek medical opinions to manage the child’s health.
35. It was further submitted that Dr E specifically recommended at paragraphs 335, 336 and 250 of his report that:
    • “the mother and father make a good faith attempt to consult with each other and endeavour to reach agreement about major long term decisions in relation to the education, health and religion of [the child]”;
    • in the event of the mother having sole parental responsibility she “keep the father informed of the decision made and ensure the father is provided with all relevant information pertaining to that decision”; and
    • “the father be empowered to appropriately inform himself about educational and medical matters”.
36. It was argued that the mother had failed to comply with the Consent Orders and to properly exercise her parental responsibility. This conduct, it was argued, was entirely contrary to Dr E’s recommendation.
37. In terms of s 117(2A)(d) it was submitted that “the matters necessitating the father filing the application was the mother’s failure to comply with the orders as to her obligations as to parental responsibility for [the child]”.
38. In that context, reference was made to paragraph 56 of the July 2016 judgment wherein I said:

In so far as the father alleges that the mother has not always provided information to him “promptly”, it is a matter of enforcement rather than variation of the Consent Orders.

39. This, it was submitted, demonstrates conduct on the part of the mother which the father contends necessitated the filing of the application.
40. Further, it was submitted that the Court should have regard to the mother’s refusal to engage in mediation.
41. In terms of s 117(2A)(f) it was submitted that the Court should give little weight to the letter from the mother’s solicitors dated 16 May 2016. In that context it was submitted that the mother’s offer simply stated her position that there had not been a significant change of circumstances, and proposed that the father withdraw his application and, in the event of that occurring, the mother had indicated that she would not seek an order for costs.
42. It was submitted that the father rejected that offer in circumstances where the serious concerns that he had raised in the application were unresolved. In that context, it was argued that, as at 16 May 2016, the father was unaware of, amongst other matters, the status of the child’s Prozac prescription and whether the child’s health was at risk. That situation, it was submitted, was not made clear to the father until the mother had filed and served her Response to the Initiating Application and her affidavit in support on 25 May 2016. It was noted this was just three business days prior to the hearing.
43. More generally, it was submitted that this is not a case that justified an order for indemnity costs on the basis that the circumstances do not bring the case within any of the criteria set out in the Colgate Palmolive Company.
44. Specifically, it was argued that this was not a case which:

commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the facts.

45. It was further argued that there is no “special or unusual feature in this case to justify the court in departing from the ordinary practice”.
46. In summary it was argued that:

Simply that the Application was wholly unsuccessful is not to be taken that the Father should have known he had no prospects of success. The Father’s motive by the Application was to protect the child’s best interests, including to facilitate the Father’s capacity to manage the child’s health when the child is in his care. The Father’s actions were consistent with the Objects and Principles of the Act at Section 60B. It is further submitted by the Father that it is contrary to the child’s best interests which is the paramount consideration by Section 60CA of the Act, to dissuade parties from making an application even though there are hurdles to overcome, such as the principle in Rice v Asplund.

CONSIDERATION

47. In terms of s 117(2A)(a), I accept that the father will have financial difficulties in meeting an order for costs. However, in Cross & Beaumont [2008] FamCAFC 68; (2008) 39 Fam LR 389 at 402[60], the Full Court held that financial incapacity to pay a costs order is not a barrier where the conduct of the party may warrant the making of such an order.
48. In the circumstances of this case it would be unfair to require the mother, to meet the entirety of her legal costs which resulted from the commencement of these proceedings by the father.
49. In addressing s 117(2A)(c), both parties focused upon the conduct of the other prior to the commencement of the proceedings. The section is, however, focused at the conduct of the parties as litigants,^[10] rather than as separated parents generally. That is not to say, however, that the parties’ conduct prior to the commencement of the proceedings is an irrelevant consideration. Accordingly, I will discuss the conduct of the parties in the context of considering s 117(2A)(g).
50. The July 2016 judgment did not contain any findings that the mother had acted in breach of the Consent Orders. The point made at paragraph 56 was that “[i]n so far as the father alleges”^[11] that the mother had not complied with the Consent Orders “it is a matter of enforcement rather than variation of the Consent Orders”.
51. Accordingly, I do not consider that s 117(2A)(d) is relevant to my consideration of the question of costs.
52. In terms of s 117(2A)(e) the submissions made on the behalf of the father acknowledged that the father was wholly unsuccessful in respect to his application. I accept that the mere fact that a case is unsuccessful is not a justification for ordering that a party pay the costs of the other. As Thackray J (though in dissent) said in Hawkins & Roe (2012) 47 Fam LR 526: “[E]ven a meritorious case can be “unsuccessful” when the other case is found to have greater merit”.^[12]
53. However, having regard to the principles adumbrated in Rice & Asplund, it was unreasonable for the father to have commenced these proceedings in circumstances where:
    • the parties had been competently represented at the time that Consent Orders were made;
    • an Independent Children’s Lawyer had also been a participant in that final hearing and had participated in the drafting of the Consent Orders;
    • the Consent Orders were entered into after three-four days of final hearing and after the parties had had the opportunity of considering the evidence of each other as well as the expert witness, including under cross examination;
    • the Consent Orders had been entered into approximately two years prior to the father’s application commencing these proceedings; and
    • the Consent Orders were, at least in part, drafted with a view to addressing the behavioural issues which were also evident in these proceedings, including the unpleasant manner of communication reflected in the father’s message sent to the mother at 3:13 pm on 13 March 2015.
54. The fact that the Consent Orders were entered into without Judge Walker having to consider and make findings in respect to the evidence in the final hearing, does not justify the father’s endeavours to re-agitate his concerns regarding the mother’s parenting of the child. Orders entered into by consent are nonetheless orders of the Court and have the same weight as orders made by a judge following the conclusion of a final hearing.
55. In terms of s 117(2A)(f), it is of significance that the solicitors for the mother gave notice to the father of the mother’s intention to rely on the principles of Rice & Asplund. I also note that the mother made an offer for the father to withdraw his application with no order sought as to costs. If that offer had been accepted by the father, both parties would have been spared the burden of substantial legal costs which neither party can comfortably afford.
56. In terms of s 117(2A)(g) I have had regard to the fact that the father was, in part, involved in some of the events upon which he sought to challenge the mother’s competence as a parent. This included the allegations that the mother had failed to take the child for allergy testing and had failed to administer Prozac as prescribed for the child.
57. In that respect the July 2016 judgment noted:
    • At [32] – [34], the father’s interrogation of Professor K by way of facsimile transmission sent on 7 in March 2015. This resulted in Professor K proposing comprehensive allergy testing to resolve the difference between the parties regarding the nature of the child’s condition; and
    • At [38] – [40], the father’s re-agitation of the issue of the child being subjected to allergy testing despite Dr J expressing concern regarding the child’s anxiety in respect to such testing.
58. Dr J prescribed Prozac for the child as result of the child suffering from anxiety, which included anxiety in respect to the proposed allergy testing. Relevantly, however, the allergy testing had been recommended by Professor K, not because the child had a clinical need for the testing, but rather as an attempt to resolve the difference of opinion between the parents in respect to the child’s health.

Consideration: indemnity costs

59. In these proceedings it is not appropriate for me to make findings as to whether the father did or did not engage in acts of family violence. I note, however, that the earlier proceedings had been resolved by consent between the parties against the background of those matters being referred to in the report of Dr E.
60. I note that the Consent Orders included orders for the father to attend a “Taking Responsibility” course as well as an anger management course.
61. The evidence in these proceedings is not such, however, that I can conclude that the husband’s application was part of a course of bullying or intimidatory conduct by the father towards the mother.
62. If I were satisfied that the father had filed his Initiating Application in an attempt to intimidate or bully the mother, I would have had no hesitation in ordering that the father to pay the mother’s costs on an indemnity basis. In the absence of sufficient evidence of that, I am not satisfied that the circumstances of this case are such that it falls within the “exceptional” category of cases referred to by the Full Court which would justify an order for indemnity costs.