Costs ordered against mother in Rice v Asplunde dispute

Costs ordered against mother in Rice v Asplunde dispute

Fenton & Fenton

COSTS – REASONS FOR JUDGMENT

1. The application before me is by the father seeking an order for costs in the quantum of $10,438.50 on a party/party basis following parenting proceedings brought by the mother and finalised by my order of
   1 December 2016.
2. The mother acted for herself on her application. The father was at all times represented by solicitors and a solicitor advocate at the hearing.
3. The mother sought orders that three children aged 14, 11 and 9 years live with her.
4. The relevant background is set out in at [5]-[19] of my reasons.^[1] Relevant to the application now before me, there had been two previous defended hearings in respect of the relevant children. The parties separated in September 2009 and first litigated in this Court in March 2010. In August 2012 Justice Benjamin ordered that the father have sole parental responsibility for the oldest child and the mother have sole parental responsibility for the younger two children.

5. Two months after that order the mother surrendered care of the younger two children to the father and relocated to Queensland. His Honour made further orders confirming sole parental responsibility of all three children with the father and for the children to live with him in Tasmania.
6. His Honour Justice Cronin conducted a further defended hearing in October 2013. His Honour’s orders confirmed sole parental responsibility for all three children with the father and for the children to live with him in Tasmania with holiday time with the mother in Queensland.
7. In January 2014 the mother withheld the children after a court ordered period of time with her in Queensland. A recovery order was issued on 30 January 2014 and the children were returned to the father on
   4 February 2014. Orders for the mother to spend time with the children were suspended but was later restored.
8. On 6 June 2016 a state protection order was made in respect of the oldest child, x. He was placed to live with the paternal grandparents who live opposite the father’s residence.
9. On 7 June 2016 the mother brought another substantive application in this Court seeking that orders for all three children to live with her in Queensland. On 5 October 2016 Judge Stewart listed the matter for trial before me in Hobart in the week commencing 14 November 2016 noting a preliminary issue to be determined under the principles in Rice v Asplund.
10. On 1 December 2016 I made an order dismissing the mother’s application with reasons articulating that she did not cross the threshold required under the principles of Rice v Asplund.

Relevant law

11. Matters of costs are provided in s.117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides a general rule that the each party being responsible for his or her own legal costs. That general rule is, however, subject to s.117(2) which enlivens a power in a Court to make an award for costs if there are justifying circumstances. It is well established “justifying” circumstances is not synonymous with“extraordinary” circumstances.
12. If the Court is satisfied that there are circumstances which justify an award for costs then the Court is mandated to reference the considerations set out in s.117(2A).
13. Counsel for the father argues now that the mother’s application was ill-conceived from the beginning and was doomed to have failed as against the threshold in Rice v Asplund. Counsel argues that the mother was privy to independent evidence that addressed each of the arguments which she put claiming a material change in circumstances of the children. I find merit in this argument. Specifically, my reasons at [26]^[2]disclose an affidavit of Ms A, Child Protection affirmed 19 May 2016, the contents of which do not disclose any concerns in respect of the father’s parenting capacity and, are, in fact complementary of him. At [31] I conclude:^[3]
    “These materials, in my view, effectively deal therefore, with all of the mother’s concerns in respect of alleged neglect of the children, matters of medical neglect, and hygiene issues.”
14. Similarly, the mother’s contention that the child Y had been the subject of an assault by the father were laid to rest by the affidavit of the child protection worker which incorporated consideration from Tasmania Police.
15. These materials were available to the mother prior to the commencement of the trial and further she continued to prosecute her case in the face of material which I eventually relied upon to a large degree in dismissing her application.
16. Prima face, I am satisfied there are circumstances that would justify an award for costs or to move away from the general principle in s.117(1) of the Act. I now turn to a consideration of the factors under s.117(2A).
17. The father is employed. He has a gross income of approximately $60,000 per annum. This income supports a family of two adults and seven children. He has filed a financial statement. He has no substantial savings or assets.
18. The mother has an income of approximately $25,000 per annum from casual employment. I accept, therefore, she is not a person of great wealth and does not have a substantial ongoing income. Nevertheless the authorities are clear that impecuniosity is not of itself a bar to an award of costs against a party.
19. I am told and I accept that neither party was in receipt of a grant of legal aid for these proceedings.
20. Counsel for the father places some store on the conduct of the proceedings prosecuted by the mother. Specifically, he says that the mother was in possession of objective professional evidence being on affidavit such that should have persuaded a prudent applicant to discontinue the application.
21. This is not a mother who was naive as to family law proceedings. She had conducted two previous defended trials in respect of the children. She had been involved in interlocutory and recovery order proceedings.
22. It is clear that the mother was wholly unsuccessful in her application. From a costs perspective, it is perhaps fortunate that the threshold issue was dealt with as a discrete matter thereby limiting the potential Court time. Nevertheless, because of the discrete hearing the only available result for the mother was to be completely successful or completely unsuccessful.
23. This is not a matter where offers of settlement are relevant.
24. There are other circumstances that should be considered. Firstly, the matter was obviously one that involved the parenting of children. Arguably, a parent should not be prohibited from arguing the best interests of children by reason of the spectre or costs hanging over him or her. This is pure and simple a matter of public policy. Nevertheless, it does not follow that a Court is not able or should not make awards of costs where circumstances warrant and even in parenting cases.
25. In Hawkins & Roe^[4] the majority observed:
    Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.
26. Further, as a later Full Court decision in Wrensted & Eades [2016] FamCAFC 46 at [103] comment on the above as follows:
    We agree with his Honour’s analysis of the statements by the majority in
    • Hawkins & Roe

    , and are much attracted to what Thackray J said in dissent. The examples given by the majority of circumstances in which a costs order may be made and their statement that in such circumstances “a judge may well conclude that there are circumstances justifying an order for costs” does not fetter the wide discretion reposing in the trial judge as long as they are seen as examples rather than requirements. However if the majority in

    • Hawkins & Rowe

    , by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion…

Consideration

27. I place some weight on the relative impecuniosity of the mother. Nevertheless, I stress that such impecuniosity does not prohibit an order for costs.^[5] In any event, the father is equally not a man of wealth. It is proper to consider, of course, that he has incurred costs as the respondent in an application which the mother prosecuted unsuccessfully.
28. I take into account the mother did not have the benefit of legal advice, nevertheless, this is not a special status or such a status that she should be given any special consideration. The fact remains that she had the advantage of material of an independent nature which argued strongly against the matters she relied upon in prosecuting her argument. She choose to continue her case in the face of such contrary material.
29. It is a consideration that the mother was wholly unsuccessful in her application.
30. Taking into account the Full Court authority set out above, I still consider that a parent should prima face be entitled as a matter of public policy to prosecute an argument as to the best interest of that parents children and not be precluded simply by an imbalance in the parties’ “bank balances”. I accept, however, that this does not mean that some particular or peculiar feature must be evident before there can be an award for costs.
31. It is noteworthy, in my view, that this was the third substantive parenting application argued by the mother. The results of previous hearings and the mother’s actions post those hearings are relevant. The mother was on notice as to the threshold issue of Rice v Asplund by reason of Judge Stewart listing the matter for a discrete hearing some time prior to the event. This is not an argument where the mother could be even particularly successful. The issue was discrete. She was wholly unsuccessful.
32. In all of those circumstances I am of the view the father should have his costs. The mother has taken no issue with the quantum of costs sought. In any event I consider them reasonable given that they are calculated on a party/party basis and with reference to the scale in the Federal Circuit Court Rules 2001 (Cth).
33. I will order that the mother meet the father’s costs of an incidental in these proceedings in the quantum of $10,438.50. I will give her 60 days in which to make payment of the costs.