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Parenting & Costs

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT BRISBANE

 

BRC 11735 of 2018

 

MR ALDEN

Applicant

 

And

 

MS ACHESON

Respondent

 

REASONS FOR JUDGMENT

 

This judgment was delivered orally and has been corrected for written comprehension.

1.           This is a parenting matter.

2.           It was filed by the father back in October 2018.

3.           He was seeking time orders for three children, X, born 2004, Y, born 2009 and Z, born 2012.

4.           The children live with the mother and have done so since separation.

5.           Separation occurred in 2016, and I am told that the children have had very little to do with the father since the date of separation.

6.           I am going to make orders on an undefended basis as the father here failed to appear.

7.           The reason I am making those orders is because firstly, there is no opposition to the orders being made and I am satisfied that the father knows that these are the orders which the mother seeks.

8.           Secondly, besides anything the father stated in his original material, the fact is that it is the mother providing all of that parenting for these children which is expected under the Family Law Act 1975 (“the Act”) and, as a matter of common sense, expected by the community.

9.           There is nothing to say that she is not anything but the best of mothers to these children.

10.         She has to discharge those duties as mother and those duties are required by the parental responsibility sections of the Act, not only without assistance from the father, but in circumstances where he does not appear to be functioning well because of alleged drug usage and mental health issues.

11.         That makes it tough for her.

12.         It makes it tough for the children.

13.         It makes it really tough if and when he decides he wants some time with his children.

14.         There really is no case I can consider than to make the orders being sought by the mother.

15.         Two days ago the father indicated he was not going to attend and not going to take part.

16.         That was really apparent anyway, because he just failed to comply with any orders to file new material.

17.         The court is a public institution and are set up at great expense to the taxpayer to resolve difficulties which parents have upon separation, but people have to take part.

18.         The father has simply wasted the mother’s time, and the court’s time.

19.         Although the mother was on Legal Aid earlier, her Legal Aid was stopped.

20.         She has had to pay out of her pocket for her representation.

21.         Because she has had to pay, she is seeking costs on an indemnity basis.

22.         There is an affidavit from her solicitor, Robyn Marie Hampton filed 25 August 2020.

23.         From that, I am satisfied that there is a costs agreement.

24.         I am satisfied as to the figures stated in there that up until October 2018 it was estimated that the mother spent $6,000 in costs and outlays.

25.         Up until the end of day one of the trial, which was supposed to begin today, costs and counsel’s fees would be another $15,000, which takes the sum to $21,000. That is a lot of money.

26.         The mother is a healthcare worker.

27.         She is not earning a great deal in wages.

28.         She does not own property.

29.         She has got to support the three children.

30.         Child support is not being received, and of course it should be – they are circumstances in which the court would consider that a costs order ought to be made.

31.         I can only do so if I take into account s.117(2A) of the Act.

32.         As I have stated, the mother was on Legal Aid.

33.         She is not on Legal Aid now.

34.         She is paying her costs.

35.         I do not know what assistance the father had.

36.         Her wages are that of a healthcare worker, which could not be great.

37.         I do not know what the father’s income is.

38.         The acts of the parties are that the mother has been forced to attend and make her case to the court when the father began making demands for time and was pursuing his case, and then it became clear that he was just not going to pursue the case.

39.         Two days ago, he contacted the mother to say he is not taking part.

40.         I am not told of any offers, but it is pretty clear that the father, to have the children spend time with him, needed to address certain issues –his drug abuse and his mental health issues – because they were risk factors involved in this matter.

41.         It is also apparent that since he has not taken a great deal of time to address his issues so that the children could spend time with him since 2016, that they are the people affected here, the young children.

42.         That is not being very responsible in relation to being a parent.

43.         I do not know whether he lacks the capacity now, but he certainly had the capacity to bring the application to the court.

44.         The mother has a view – although that is not necessarily backed by evidence – that the father does earn some money.

45.         She believes he works at company A.

46.         She is of the view that he may be receiving some type of payment which has come to him through hereditary connections.

47.         There is no evidence of that, but it is beside the point.

48.         The point is that people should not put another party to great costs, great anxiety and great stress by bringing court proceedings and then abandoning those court proceedings.

49.         That is the real issue which I must consider.

50.         As a matter of public policy, people ought to know that they simply cannot use this institution to cause vexation to another party, especially the parent of the children whom the other party has care and control of and, upon all the evidence, is doing the best job she can do.

51.         The parenting orders I intend then making are that the children, X, Y and Z live with the mother, that she exercise sole parental responsibility, and they spend time and communicate with the father by telephone as agreed.

52.         I will make orders to allow information on the children to go to the father at his expense.

53.         As to costs, while I am not satisfied that the costs ought to be on an indemnity basis, because there may well be a question mark as to his capacity, I am satisfied that the costs ought to be those costs occurred on a solicitor and client basis.

54.         As such, and as I have the power to do, I will make a costs order fixed in the sum of $21,000.

55.         Whether the mother can get that from the father is another point, but I hope that that sends a clear message, not only to the father, but to all people who have the view that these proceedings are simply proceedings which can be used to cause problems for the other party.

 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Coates

 

Associate: 

 

Date: 26 October 2020

Posted in: Derek Legal Blog at 11 November 20

Application for a Stay Pending Appeal from Interim Parenting Orders

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT MELBOURNE

 

MLC 8078 of 2020

 

MS BECKFORD

Applicant

 

And

 

MR BECKFORD

Respondent

 

REASONS FOR JUDGMENT

 

The law in relation to stay applications

15. It is a matter of discretion whether or not to grant a stay. The granting of a stay is dependent on the circumstances of each particular case.
16. The relevant principles with respect to the exercise of the discretion in applications for a stay in parenting proceedings are well established. They have been set out by the Full Court in the decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. Those principles are as follows:-

  • the onus to establish a proper basis for the stay is on the applicant for the stay.  However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
  • a person who has obtained a judgment is entitled to the benefit of that judgment;
  • a person who has obtained a judgment is entitled to presume the judgment is correct;
  • the mere filing of an appeal is insufficient to grant a stay;
  • the bona fides of the applicant;
  • a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
  • a weighing of the risk that an appeal may be rendered nugatory if a stay is  not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
  • some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
  • the desirability of limiting the frequency of any change in a child’s living arrangements;
  • the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
  • the best interests of the child the subject of the proceedings are a significant consideration.

17. The onus on establishing a proper basis for a stay of the orders rests with the Father. He does not need to establish exceptional or special circumstances. The Mother is entitled to the benefit of the judgment, and she is entitled to presume it is correct. The Father has now filed an Application in a Case in which he formally seeks a stay.

Bona fides of the Father

18. The Father secretively and unilaterally removed the children from Victoria. That removal, without notice to the Court or to the Mother was in breach of the final orders regarding the children’s time with their Mother, as well as in breach of the orders for equal shared parental responsibility, and orders setting out how that parental responsibility is to be exercised. It was also in breach of the orders requiring the children to be enrolled at G School and H School, or if the costs of attending those schools were insurmountable, an order that the children attend their locally zoned state school as at the time the orders were made.
19. Notably, Counsel for the Father indicated that if I did not grant a stay of the orders, the Father would defy the orders and refuse to return.
20. In my view, it reflects poorly on the Father that he surreptitiously and secretively removed the children from Victoria, and says he will refuse to return himself with the children even if a stay is not granted. A return to Victoria would enable the children to return to the schools they have been attending for some time, and resume spending time with the Mother in accordance with the final orders.
21. The Father is not the Applicant in the substantive proceedings. He did not make an application to vary the final orders or to relocate until 30 September 2020. That application was made after the expiration of the timeframe in which he was required to return to Victoria pursuant to my orders of 21 August 2020.
22. In my view, these matters significantly call into question the Father’s bona fides.

Risk that the appeal may be rendered nugatory

23. If an appeal may be rendered nugatory if a stay is not granted, this is a substantial factor in determining whether it will be appropriate to grant a stay. However, that factor alone, although a significant and weighty consideration, is not determinative of the matter.
24. Counsel for the Father submitted his appeal would be rendered nugatory in the absence of a stay being granted. I respectfully disagree. There is nothing that flows as a result of the orders not being stayed pending an appeal that could not be undone if the appeal was upheld. There is nothing that would occur in the absence of a stay that would make it impossible or impracticable to restore the Father’s situation in City B in the event of a successful appeal. The Father has not started employment in City B. He has not purchased a home there, but is renting. He has no family or partner from whom he would be separated if he is required to return.
25. I also note that the only applications on foot before me on 21 August 2020 were:-

a) the Mother’s Application in a Case filed on 30 July 2020, seeking the return of the children and what was effectively enforcement of the final orders;
b) the Father’s Response to an Application in a Case, filed on 13 August 2020, in which the only interim order he sought as that the Mother’s Initiating Application filed on 24 July 2020 and her Application in a Case filed on 30 July 2020 be merged and heard together; and
c) the Father’s Application in a Case filed on 13 August 2020, in which he sought the matter be transferred to the Cairns Registry and the proceedings otherwise be adjourned.

26. The Father did not file his Response, seeking that he and the children be permitted to live in City B until 30 September 2020. That Response, along with the Mother’s Initiating Application, is listed for a first return on 4 November 2020, which is overwhelming likely to predate the hearing of the Father’s appeal. Presumably, the Father’s relocation application can proceed to be heard on an interim basis at that time.

Merits of the appeal

27. I am required to make a preliminary assessment of the strength of the Father’s appeal, to determine only whether the Father has established an arguable case. There are nine grounds of appeal, a number of which have multiple subparagraphs.
28. Counsel for the Father noted at the outset that the grounds of appeal were drawn when his client was acting on his own behalf. He said it was expected that the grounds would be amended. However, the stay application proceeds on the basis of the appeal as currently articulated.

Grounds one to six

29. Notably, Counsel for the Father conceded that the grounds of appeal substantially deal with discretionary matters. It is well settled that on appeal a discretionary decision will only be set aside in the event that there has been a material error of the kind that warrants the discretionary decision to be set aside. That is, matters of weight or preference are usually insufficient to reverse a first instance discretionary judgment. Rather, the decision would need to be plainly wrong before an appellate body would interfere with it. I refer to the well-known decisions of Gronow v Gronow [1979] HCA 63; Mallett v Mallett [1984] HCA 21; and Norbis v Norbis [1986] HCA 17.
30. Counsel for the Father accordingly focussed his submissions with respect to the merit of the appeal grounds to those surrounding questions of procedural fairness, to which I will shortly turn. When asked whether, in light of his concession regarding appeals on discretionary matters, there were further submissions he wished to make regarding the additional grounds, Counsel for the Father made no specific submissions other than to assert that all the grounds articulated were “arguable”. It was significantly unhelpful that Counsel for the Father declined to make submissions beyond that broad statement.
31. The grounds were drawn by a litigant in person. Counsel for the Father made no effort to improve upon, or explain the grounds as drawn. Most of the grounds deal with matters of discretion, and the weight given or not given to particular matters. I have already referred to the case law regarding appeals from discretionary matters.
32. The Father unilaterally, surreptitiously and secretively removed the children from Victoria, to City B, in the midst of a pandemic, with such move changing the children’s place of residence. He removed them from their schools. The removal prevents face-to-face time occurring between the children and the Mother. The move was also in breach of the final orders. In my view, and in light of the expert evidence before the Court by way of the Memorandum, this was plainly a matter in which it was appropriate for the Court to exercise its coercive power. It was also plainly a matter in which the children’s best interests required the application for their return to be heard and determined as a matter of urgency. The Father was given 28 days to arrange to return. There is no substance to the Father’s assertion that that time frame was excessively short.
33. I am not satisfied that the Father has articulated a ground with any merit in relation to the exercise of my discretion in that regard. I am not satisfied that the Father has demonstrated an arguable case that my determination was plainly wrong.
34. In relation to the ground that there were not adequate reasons for judgment, I note the matter was heard in a busy duty list. Short form reasons are permitted pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”). At any rate, relatively detailed reasons were given ex tempore. There is no merit to this ground.

Ground seven – denial of natural justice

35. Ground seven and the following sub-paragraphs focus on the manner of the hearing, and an assertion that the Father was not provided with procedural fairness, including by being denied the opportunity to secure legal representation. I am also not satisfied there is any merit to those grounds. The Father had just over three weeks between being served with the Mother’s Application in a Case and the interim hearing on 21 August 2020.
36. Whilst I accept it was a relatively tight timeframe, the Father did have time to engage lawyers had he wanted to do so prior to that date. It appeared from his submissions that he had made few efforts to obtain representation from the time he was served until the day the matter was substantially heard before me on 21 August 2020, over three weeks later. I further note that it was the Father’s surreptitious and unilateral removal of the children that brought this matter to the Court’s attention as a matter of urgency. It would be contrary to the children’s best interests for the Father to be able to delay proceedings in these circumstances, particularly as he had three weeks to obtain representation between being served with the application and the interim hearing.
37. Moreover, as was apparent from the Father’s presentation, his understanding of the relevant legal principles was such that he was sufficiently able to address me in relation to the application before me. For instance, he made references to concepts such as “meaningful relationship” and that this “doesn’t mean optimal” relationship, pursuant to section 60CC(2)(a) of the Act. He referred to his “freedom of movement”. He was able to address me on the matters relevant to my consideration including referring to risks faced by the children, the mental health implications he alleges arise as a result of spending time with the Mother, the children’s views, the concerns he has about the Mother’s mental health, his parenting capacity and the benefits he says the children are experiencing by living City B, such as feeling settled, and secure, and being able to attend in-person classes at school.
38. I note further that the Father was legally represented during the previous proceedings. He was represented by Counsel at the Final Hearing when those orders were made largely by consent, as well as having been represented at the interim hearings during the course of that previous litigation. I should also add that the contact details of the Duty Lawyer were provided to the Father in the Microsoft Teams invitation forwarded to him on the afternoon prior to the hearing on 21 August 2020.
39. In relation to the complaint that the hearing was conducted in an expedited manner, I note the comments of the Full Court in Chapa & Chapa [2013] FamCAFC 52, in which their Honours Coleman, Murphy and Loughnan JJ said at paragraph 9 of those reasons:-

This Court has long recognised that, however unpalatable it might be for all concerned – including, crucially, the Court – the volume of cases in which early court intervention is necessary, requires proceedings for interim relief to be of a truncated nature. This Court said in C v C (1996) FLC 92-651 at 82,674 – 82,676:

it is obvious that if the Court could not and did not place limits on the time taken in interlocutory proceedings and the mode by which they are conducted, its workload would mean that many other litigants would suffer serious injustice be reason of increased delays. Further, there must also be concern for litigants themselves in these circumstances, where lengthy hearings of interlocutory matters are both expensive and emotionally draining and do not lead to a final determination of the issues between them ...

This Court has finite resources and a limited number of judicial officers coupled with an ever-increasing workload. If it was required to embark upon lengthy examinations of interlocutory issues such as interim custody, important though they may be to the parties, this would inevitably lead to an inability to provide hearings of final determinations of issues of custody and property within a reasonable time. In addition, other persons requiring a determination of these and similar issues would be impossibly inconvenienced ...

40. Counsel for the Father said that the process was not sufficiently explained to the Father. On 21 August 2020, I told the Father that I would hear from Counsel for the Applicant, and then I would hear from the Father. I am unclear beyond that what needed to be explained to the Father regarding interim hearings. Counsel for the Father was unable to provide the Court with any authority that set out what else a litigant in person needed to be told at an interim hearing. I am satisfied the Father was well aware of the issues in dispute, and of the orders that were being contemplated, and that he was provided with the opportunity to make submissions with respect to same.

Ground eight – reasonable apprehension of bias

41. The Father asserts that I formed an adverse impression of the Father, which gave rise to a reasonable apprehension of bias against him. In my view, there is similarly no merit in that ground.
42. The test for apprehended bias, as set out in Johnson v Johnson [2000] HCA 48 (“Johnson”), is whether a fair-minded lay observed might reasonably apprehend that the Judge may not bring an impartial mind to the matter to be determined. Again, Counsel for the Father did not address me in any detail regarding this ground.
43. The Father asserts that I took an excessively interventionist approach, and effectively cross-examined him. I certainly did ask him questions, to clarify his evidence, his submissions and his actions. The High Court in Johnson at paragraph 13 said:-

At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx…Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

44. At an interim hearing, in a busy duty list, the lists could not be managed if judges did not give an indication of their views and simply sat, Sphinx-like, listening to each and every case in their totality. Having read the material, I made my preliminary view clear to the Father at the outset on 17 August 2020, and gave him the opportunity to respond to and deal with that. He had the further opportunity to make submissions on 21 August 2020, which he did.
45. As observed by Alstergren CJ in Charisteas & Charisteas and Ors [2020] FamCAFC 162 (“Charisteas”) at paragraph 44:-

The characteristics of the hypothetical “fair-minded lay observer” were recently set out in Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42 where the Full Court of the Federal Court stated at [21]:

...That observer is amongst other things: (1) taken to be reasonable; (2) does not make snap judgments; (3) knows commonplace things and is neither complacent or unduly sensitive or suspicious; (4) has knowledge of all the circumstances of the case; and (5) is an informed one who will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation, equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial...

46. As further observed by the majority in Charisteas at paragraph 142:-

The hypothetical observer is not “unaware of the way in which cases are brought to trial and tried”. Further, before forming a view about the existence of apprehended bias, the hypothetical observer would take the trouble to inform himself or herself (but without the level of knowledge of a lawyer) of at least the basic considerations needed to come to a fair assessment.

[citations omitted]

47. I did press and question the Father as to why he and the children ought not immediately be required to return to Victoria. I also pressed and questioned the Father as to how he envisaged the children could maintain a meaningful relationship with the Mother if they remain in Queensland. I do not agree that I was dismissive of his arguments. In light of his submissions that the children were expressing clear views, and their mental health was such that they should remain in Queensland, an order was made for the Child Inclusive Conference and the preparation of the Memorandum to ascertain those views and for the Court to have some independent insight into the children’s psychological well-being.
48. Given the circumstances of the case, I do not accept that there is an arguable case for apprehended bias. I am not satisfied that a reasonable observer with the full knowledge of the case, who was aware of the terms of the final orders, was aware of the history of the matter, had read the parties’ affidavits and was armed with the Memorandum, would have been concerned that I did not bring an impartial mind to the matter.
49. Accordingly, I am not satisfied that the Father has established an arguable case in relation to any of the grounds of appeal.

Desirability of limiting the frequency of any change in a child’s living arrangements

50. It is undesirable that children undergo unnecessary changes in their living arrangements.
51. The Father has unilaterally, and without notice to the Mother or to this Court, imposed a change of location of primary residence, and a change of schools, upon the children. He now seeks to rely on this consideration to stay the order which requires that he and the children return to Victoria.
52. Somewhat remarkably, the Father instructed Counsel that even if the stay was refused, he would not be returning to Victoria. Accordingly, he says, the Court would have to consider making a recovery order, and placing the children in the Mother’s care, which he says would be a significant change for them. It seems that the Father, in refusing to return, is attempting to create a situation that may require a substantial change in the children’s living arrangements, which he then seeks to rely on in his stay application. In my view, that is an extraordinary submission to make.
53. If the stay is not granted, and the Father then complied with the orders, the children would return to Victoria. They could remain in his primary care, return to living with their Father in the home of the paternal grandparents as they have done for the last year, return to their familiar schools and community, and the younger children can resume spending time with their Mother. They have only been in Queensland for a few months. The Father can then pursue his interim and ultimately his final application to relocate in the usual course.
54. The Father’s indication that he will not return, even if that means a recovery order is issued and the children are placed in the Mother’s care, reflects poorly on him. In my view, it also substantially undermines his assertion that the children are at risk in her care.

Timeframe for the hearing of an appeal and whether satisfactory arrangements can be implemented pending an appeal

55. Counsel for the Father adduced no evidence as to the likely delay in the hearing of his appeal. In my view, given the matters raised by Ms F in the Memorandum, any delay in the children’s return to Victoria and the resumption of time with the Mother could further fracture the parent-child relationships.
56. In any event, it is apparent that no satisfactory arrangements for the children Y and Z to spend time or communicate with their Mother can be implemented, given the distance to which the Father has removed the children, the costs of travel that would be incurred to facilitate time and the travel restrictions faced as a result of the current COVID-19 pandemic. It is common ground that the Father has not ensured Y and Z have even had electronic or telephone communication with their Mother since they were removed from Victoria.

Best interests of the children

57. I am most concerned that if the children are not returned to Victoria forthwith, that permanent damage will be done to the Mother-child relationship. It is apparent from the Memorandum that the relationship between X and her Mother has broken down. It is also apparent that the relationship between the Mother and Y is under stress. Z misses her Mother and wants to see her. Ms F recorded the issues for the children to include that:-

The children’s relationship with their mother is at risk given concerns regarding alignment behaviours from the father along with further influence the [sic] oldest sibling, X.

58. The best interests of the children, in my view, strongly mitigate against a stay being granted. I set out in some detail matters relevant to the best interests of the children in my previous judgment in these proceedings. The present arrangements – whereby the children are not able to have any meaningful relationship with their Mother – are simply not satisfactory.
59. Counsel for the Father submitted that if a stay was not granted, and the Father did not return, a change of residence and a recovery order would be the next logical step for the Court to consider. He said there may need to be an order for the splitting of siblings. He said any such order could not be in the children’s best interests.
60. The application before me is the application for stay of the orders of 21 August 2020. In my view, it is premature to consider what further orders may be made if the Father refuses to comply with the orders in the absence of a stay of same. If, when the stay is not granted, the Father maintains his refusal to return, the Court will consider what other orders might then be made in the children’s best interests.

Further listing of the matter

61. The matter is currently listed as a first return of the Mother’s Initiating Application and the Father’s Response in the duty list on 4 November 2020. It is apparent that should the Father wish to press his relocation application, or in the event that he does not comply with my orders of 21 August 2020, the matter will require more time than I am able to give the matter that day. It is listed in an extremely busy duty list and would be better dealt with if it is listed as an interim defended hearing.
62. Accordingly, I will vacate that hearing date. The matter will be re-listed before another judge, who it is anticipated will be able to hear the matter as an interim defended hearing on 20 November 2020.
63. For all of the foregoing reasons, and in the exercise of my discretion, I dismiss the Father’s Application in a Case for a stay of orders filed on 18 September 2020.

 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Carter

 

Associate: 

 

Date: 8 October 2020

Posted in: Derek Legal Blog at 04 November 20

Ruling on Application for Divorce

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT DANDENONG

 

DGC 806 of 2020

 

MR BASU

Applicant

 

And

 

MS GHOSH

Respondent

 

REASONS FOR JUDGMENT

 

(Revised from Transcript)

 

1. The first matter I note is that the mother is unrepresented.   I have permitted her friend, Ms B, to address the Court and to respond to questions owing to the evident and significant distress experienced by the respondent, although this process necessarily made the forensic aspects of the matter somewhat more difficult.  I recall also that the mother sought, both yesterday and at the commencement of the proceeding today, in effect to adjourn the matter to enable her to obtain legal representation.  I did not grant that adjournment application because, putting the matter shortly, I had no confidence that the wife would in fact be able to obtain legal representation on a pro bono basis for a proceeding of this sort. 

2. That is because, at least in part, the only real issue before the Court is when a divorce is able to be made.  From the husband’s case it can be made today.  On an alternative basis it can be made in November.  But even if I entirely accept the position of the wife, the husband will be entitled to a divorce in May of next year in any event.  I was informed by Ms B that they had tried numerous lawyers in an endeavour to obtain assistance.  And that only goes to reinforce the accuracy of my own perception that legal representation had not been obtained and that adjournment was not appropriate.  I turn now to formal matters.  There is no question that there is a divorce application before the Court lodged by the husband. 

3. He is domiciled in Australia on a visa that is presently due to expire in 2022.  Very understandably, neither party has raised the question of forum but, pursuant to the High Court’s decision in the case of Henry & Henry [1996] 185 CLR 571 (“Henry”), in my view it is clear that both parents being Australian and the husband being domiciled here at least for another two years, Australia is not a clearly inappropriate forum in the sense described in Henry.  Accordingly, the Court clearly has jurisdiction to proceed with the matter.  There is no question that the wife has been served with the application because she has filed a response, through her then lawyers, as anticipated in the proceeding today.

4. There is equally no question that the marriage is proved, both because the original certificate has been appended to the husband’s affidavit, and because, of course, the wife is here to dispute the divorce in any event.  Although this takes the matter out of order, I note that there are two children:  the older child who I infer is a boy, is presently living with the father’s parents in India; and the second child who I assume is a girl, is living with the mother’s parents in India. 

RECORDED  :  NOT TRANSCRIBED

Both are girls; the two children are with the grandparents in India.

5. The Court is not in a position to be satisfied, pursuant to section 55A(1)(b), that the arrangements for the children are satisfactory because, in fact, that matter is in significant dispute between the parties.  But in the circumstances where the children appear to be in the care and control of grandparents, the Court can be satisfied, to use the words of section 55A(1)(b)(ii), of the circumstances by reason of which the divorce order should take effect even though the Court is not satisfied that appropriate arrangements are in place for the children.

6. That then brings us to the real issue in dispute which is the date of separation.  The wife says that this was when she was served with the application.  There is no precise date denoted but is said to have been relatively shortly before a hearing before a registrar.  The husband says separation took place when he left India on 10 November 2018.  He says that he returned in 2019 but did not cohabit with the wife in any way.  He says he saw the children – something I doubt is true because, as I understand it, the second child was with the mother’s parents and the relationship between the two families is poor.  Nothing really, ultimately, turns on that.

7. On 13 November 2019 the mother returned and came to Australia.  In my view it seems clear on the materials that both sides knew the relationship was over on that occasion.  I note that the husband applied for an intervention order on 12 November 2019, albeit that it was not listed, it would seem, until April of the following year.  I note that the wife also filed an intervention order application on 25 February 2020.  What she had to say in that application is relevantly of note.  She said,

MY NAME IS MS GHOSH.  I AM SEEKING AN INTERVENTION ORDER AGAINST MY HUSBAND MR BASU, I HAVE KNOWN HIM FOR 9 YEARS.  WE HAVE 2 CHILDREN TOGETHER, X, 7YO AND Y, 2YO, BOTH CHILDREN RESIDE OVERSEAS.  IN NOV 2019 THE RESP THE RESP LIED TO ME AND SAID MY MOTHER WAS VERY SICK IN INDIA AND NEEDED MY HELP.  WE ALL WENT OVER AS A FAMILY, I STAYED WITH THE RESPS FAMILY, THE RESPONDENT RETURNED TO AUSTRALIA, AFTER ONE MONTH HE WAS IGNORING ALL MY MESSAGES AND CALLS, HE WOULD NOT RESPOND.  I RETURNED TO AUSTRALIA.  THE RESP WOULDN’T DISCUSS ANYTHING WITH ME AND HE WOULD CONSTANTLY PLAY ON HIS PHONE AND IGNORE ME.  THE RESP WAS ABUSING ME TO GET MONEY FOR HIS PERMANENT RESIDENCY, I WAS UNABLE TO GIVE IT TO HIM SO HE HAS CUT OFF CONTACT WITH MY DAUGHTERS WHO STILL RESIDE IN INDIA.  THE RESP TOOK ALL MY MONEY AND SAID IF I WANT PERMANENT RESIDENCY I HAVE TO PAY FOR IT.  THE RESP HAS BEEN WORKING EVEN THOUGH HE IS NOT PERMITTED TO, DUE TO HIS VISA ALLOWANCES. 

8. I note that the mother seems to me to be wrong in asserting that the husband was in India in November 2019.  His passport stamps show that he was there from 7 August 2019 until 18 September 2019.  It is particularly noteworthy that when the matter came on before the registrar, the wife was legally represented, and through him it was asserted that the date of separation was 7 November 2019.  In my view, taking all this evidence together, it is clear that, at the very latest, by 7 November 2019, the marriage was irretrievably broken down.  What I am going to do is adjourn this matter to 8 November 2020 at 9.30 before me and at that time, the order will be made.

9. The position of the mother in relation to her children, I have to say in passing, is heart-wrenching, and my heart goes out to her.  The circumstances of her being denied any access to the elder child in particular are utterly unsatisfactory and do the husband no credit whatsoever.  However, the wife needs to understand that I have no power in this proceeding to do anything about such matters.  They are simply not before me, and even if they were, I have no authority to make orders affecting children overseas.  I am afraid that matter will have to be resolved in some other fashion.

10. I note that there appear to be issues arising as to visa status for both of these persons, and I suspect that they are both keenly conscious of that.  I also suspect that the nature of this dispute is somewhat strongly coloured by cultural influences that I can guess at but over which I have no expertise.  In any event, the husband’s application is, in my view, made good to the extent that it is established, to my mind, that the date of separation was 7 November 2019.  As I say, I will adjourn the matter to 8 November at which stage I will make the divorce order.

 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

 

Associate: 

 

Date: 21 September 2020

Posted in: Derek Legal Blog at 28 October 20

Ruling on Costs Application

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT DANDENONG

 

DGC 731 of 2019

 

MS HANSI

Applicant

 

And

 

MR HANSI

Respondent

 

REASONS FOR JUDGMENT

 

1. On 5 August 2020, I published reasons for judgment and orders to give effect to those reasons for judgment in this matter.  Put shortly, the wife was entirely successful.  I made orders in effect transferring the husband’s interest in the former matrimonial home to the wife, this being the only substantive asset that the parties had.  The wife also retained her superannuation, effectively $36,000, which has now transmogrified into $36,000 in her bank account. 
2. The wife had foreshadowed an application for costs and I made orders for written submissions.  The wife filed her submissions on 11 August 2020, but the husband has not filed any responding submissions by the posited date of 19 August 2020.  Because Mr Hansi is self-represented, I caused my associate to email him reminding him of his opportunity to respond, but he has not elected to do so.  His response to the associate’s reminder was simply “My financial councillor shall be in contact with the applicants lawyer shortly”.
3. As already indicated, the judgment was effectively 100 per cent in favour of the wife.  There are perhaps two matters that should be noted, however.  The first concerns how much money the husband might or might not have in Country T. At paragraph 93, I said relevantly:

I repeat that I am not able to say whether the husband still has substantial amounts of funds in Country T.He may or he may not.Nonetheless, whatever funds there were, and there were certainly well in excess of $300,000, they have all been retained by him and either retained in Country T sub rosa or spent by the husband for his own benefit.

4. It was against that background that I came to the conclusion that it was just and equitable that the wife retain the entirety of the equity in the matrimonial home, which happened to be marginally in excess of $300,000, in any event. 
5. The wife’s written submissions point to a number of matters.  It is, however, convenient to approach this matter by direct reference to section 117 of the Family Law Act 1975 (Cth).  Pursuant to section 117(2), it is provided that:

If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) (5) and (6) and the applicable rules of court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

6. It is fair to say that the general rule is that each party bears their own costs, but subject, obviously, to cases where the court is persuaded that there are circumstances justifying the making of an order for costs (see Penfold & Penfold [1980] 144 CLR 311 at 315). 
7. Turning to section 117(2A), the financial circumstances of both of the parties are in truth strained.  Both parties are on the aged pension.  The wife lives in the matrimonial home, but has to pay the mortgage.  The husband, when the matter was before the court, was living with his son.  As noted above, I was not able to say with any certainty whether the husband retained funds in Country T or not.  If he does, he has hidden them far too well for the wife to find them, and if he does not, of course, then he has no means with which to satisfy the cost orders made against him.
8. Neither party is in receipt of legal aid (Section 117(2A)(b)).
9. There is no doubt that the husband’s conduct of this proceeding (and he was legally represented for substantial proportions of it) has been lamentable.  As I said in my earlier judgment at 5, the husband’s approach to disclosure was dilatory at best (Section 117(2A)(c)). 
10. The husband also failed to comply with disclosure orders on three occasions, although, of course, this is merely part of his conduct of the proceeding more generally (Section 117(2A)(d).
11. The husband was wholly unsuccessful in the case (Section 117(2A)(e)).
12. The wife has referred in her costs submissions to an offer to settle the matter as constituted in letters dated 28 November 2019 and 27 February 2020.  The former is not appended to the written submissions, but the latter is.  It is said in the written submissions:

Those letters contained an offer to settle the matter with transfer to the applicant of the former matrimonial home and mortgage along with a cash amount, that was open to negotiation.

13. The letter dated 14 February 2019 to the respondent’s then solicitors does not in fact assert the offer in the terms described.  Rather, it is entirely related to the alleged failure on the part of the husband to comply with his disclosure obligations. 
14. Assuming in the wife’s favour that the letter of 28 November 2019 did indeed make an offer to settle by the transfer of the matrimonial home and mortgage along with a cash amount “that was open to negotiation”, there are a number of things to be said. 
15. First, by 29 October 2019, the husband’s solicitors had withdrawn, and he was self-represented.  Although he speaks English reasonably well, the husband required an interpreter at trial, and I would infer that his knowledge of the law would be minimal.  Nothing has been said as to how long the alleged offer was said to be open.  Indeed, furthermore, as far as the written submissions of the wife identify the offer, it did not involve a direct cash proposal.
16. In these circumstances, the court is required to consider whether the conduct of the offeree was imprudent, as things would have been reasonably understood by the offeree at the time the offer was made.  At the time the offer was made, the husband was still running his case on the footing that he was telling the truth.  He would have reasonably anticipated that his case was not hopeless.  Indeed, the outcome that ultimately obtained was one that was extremely unusual and totally dependent on the facts of the case as I ultimately found them to be. 
17. Given the rather nebulous terms of the offer, if there was indeed one, I do not think that the failure to accept the offer was unreasonable in these circumstances. 
18. This brings us to subsection 117(2A)(g), which concerns “such other matters as the court considers relevant”. 
19. The wife has sought her reserved costs, which, from the file, appear to me to be the costs reserved on 25 October 2019 in the sum of $2,582.  The reservation of costs took place because it was not then ascertained conclusively whether or not the adjournment, because of the husband’s non-disclosure, was indeed established. 
20. In the light of the findings I have made at trial as to the husband’s dilatory approach to disclosure, at best, it is clear that the adjournment on that date was indeed caused by the husband’s conduct.  I think that the wife should have her costs of $2,582.  That will, as her written submissions assert, enable her to access funds of approximately $2,100 held in a joint mortgage offset account. 
21. The question then becomes what the court should really otherwise do in these circumstances.  It is the case that the wife has now a substantial set of legal fees to pay.  These have been caused by the conduct of the husband, who has failed completely in the case.  Nonetheless, the end result of the proceedings is that the wife has 100% of the only identifiable assets that the parties possess.  In circumstances where I simply cannot be satisfied, albeit as a result of his own conduct, that the husband has any money with which to meet a set of costs, it is in my view inappropriate to exercise the discretion to grant costs. 
22. The husband is living on the pension.  As I have already indicated, if he has any money, it has been too well hidden for the wife to find it.  There is no suggestion he has any significant amount in bank accounts in Australia.  Indeed, I strongly suspect that any endeavour by the wife to enforce any costs orders, save, to the extent of the moneys in the joint offset account, to which I have referred, will cost her far more than she would ever be likely to realise.  In the end, I think that the proper exercise of my discretion, given the effective impecuniosity of the husband, is not to make any order for costs, save those previously reserved. 
23. There will be orders accordingly.

 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

 

Associate: 

 

Date: 10 September 2020

Posted in: Derek Legal Blog at 21 October 20

Indemnity Costs

THE FULL COURT OF THE Family Court of Australia at SYDNEY

 

Appeal Numbers: EAA 64 of 2019; EAA 67 of 2019 & EAA 73 of 2019

 

Ms Cantrell

Appellant

 

And

 

Mr North

First Respondent

 

And

 

Mr Cantrell

Second Respondent

 

REASONS FOR JUDGMENT

 

1. On 23 July 2020, the Full Court dismissed three appeals in this matter and made an order for the issue of costs to be dealt with by way of written submissions. Written submissions were filed by Mr North (“the first respondent”) on 13 August 2020. Ms Cantrell (“the appellant”) filed written submissions in reply on 20 August 2020. Mr Cantrell (“the second respondent”) did not take part in the appeals nor did he file any written submissions in relation to costs.
2. The first respondent seeks an order that the appellant pay his costs in the sum of $75,928.50, or on a party and party basis, or in an amount fixed by the Court.
3. The parties agree that the issue of costs is to be determined by having regard to s 117 of the Family Law Act 1975 (Cth) (“the Act”). Although the primary proceedings were heard in the Supreme Court of New South Wales, one of the orders made was to set aside property settlement consent orders made in the Family Court of Australia. The proceedings therefore are “proceedings under [the] Act” and s 117 of the Act applies.
4. Under that section of the Act, each party is to bear his or her own costs (s 117(1)), unless the Court considers that there are circumstances which justify it making such order as it considers just (s 117(2)). In considering such an order, the Court must have regard to the matters set out in s 117(2A) of the Act.
5. The first respondent submitted that a costs order is justified essentially because:

  • the three appeals were wholly unsuccessful (s 117(2A)(e) of the Act);
  • the first respondent was a third party creditor where attempts to recover the debt owed to him had been thwarted by the property settlement consent orders made in the Family Court of Australia and the transfer of the property from the second respondent to the appellant (s 117(2A)(g) of the Act); and
  • Appeal No. EAA 73 of 2019 challenged the setting aside of settlements pursuant to s 37A of the Conveyancing Act 1919 (NSW) (“the Conveyancing Act”) and any appeal from that alone would have gone to the New South Wales Court of Appeal where costs normally follow the event.

6. There is considerable force in the first two points.
7. There is no substance in the third point, as it is expressed, because insofar as the proceedings concerned the Conveyancing Act, they were in relation to orders made pursuant to s 79 of the Act and, accordingly were proceedings arising under the latter Act for the purposes of s 7(5)(a) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth) (s 7(4)(a) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW)). Accordingly, any appeal would have been to this Court (Eberstaller v Poulos (2014) 87 NSWLR 394).
8. However, insofar as the proceedings can be characterised as those taken by a third party creditor seeking to reverse dispositions of property designed to defeat the payment of a debt, they are proceedings that would normally be pursued in a court where costs ordinarily follow the event. As the Full Court explained in Yunghanns v Yunghanns (2000) FLC 93-029, where the proceedings in this Court are more akin to commercial proceedings, that fact may be taken into account under s 117(2A)(g) of the Act. This consideration supports a costs order being made in favour of the first respondent.
9. The first respondent submitted that the financial circumstances of the parties (s 117(2A)(a) of the Act) are not a relevant consideration in this matter because “policy wise, [it is] primarily intended to be a reference to persons who are parties to the marriage” (first respondent’s written submissions filed on 13 August 2020, paragraph 7(a)).
10. We do not agree that the clear terms of s 117(2A)(a) of the Act should be so limited but accept that this is a consideration which may have lesser weight in matters involving third parties such as the first respondent.
11. For her part, the appellant relied on her financial circumstances. The appellant is 72 years old and receives a pension. Her only significant asset is her remaining interest in the property which was the subject of the proceedings. We are aware that the appellant is subject to significant costs orders made against her by the primary judge. We are also conscious that the second respondent has paid her not inconsiderable costs of the proceedings.
12. Weight must be given to these matters but a poor financial position is not determinative. If it were otherwise, an impecunious person could litigate with impunity (Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Mallory & Mallory [2020] FamCAFC 62 at [9]).
13. Taking these various matters into consideration, it is just that the appellant pay the first respondent’s costs.
14. The appellant submitted that as we did not determine the grounds of appeal concerning the Conveyancing Act and that these issues represented approximately one-third of the matters in issue, she should be ordered to pay only a percentage of the first respondent’s costs. Another way of looking at it, however, is that those matters were irrelevant to the main issues at hand and should not have been raised. There is merit also in the first respondent’s submission that “[t]his was a wide-ranging appeal in relation to which the appellant left no stone unexcavated, unprocessed and unpolished” (first respondent’s written submissions filed on 13 August 2020, paragraph 7(g)(vi)).
15. We are not persuaded that there should be a reduction in the first respondent’s costs as was suggested by the appellant.
16. At the hearing of the appeals, the first respondent provided a costs schedule titled “estimate of costs of appeal” filed on 24 February 2020, which identified his costs as being in the sum of $84,814.81. That sum included the costs of the stay application and the costs of preparing the costs schedule itself.
17. In his written submissions, the first respondent explained that the sum of $75,928.50 was “in proportion to the first respondent’s estimate of costs of $84,814 had the appeal run for two days” (first respondent’s written submissions filed on 13 August 2020, paragraph 8), for which it was initially listed.
18. The costs claimed by the first respondent appear not to be at scale and are said to be “the costs actually rendered to the [first respondent] and paid” (first respondent’s written submissions filed on 13 August 2020, paragraph 1). It is therefore a claim for indemnity costs but there are no exceptional circumstances which would justify them being calculated on that basis (Kohan and Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No. 2) (2010) FLC 93-435).
19. The claimed costs, however, were not the subject of any criticism by the appellant and they compare favourably with her costs of $123,303.21 (appellant’s costs schedule filed on 21 February 2020). The parties have already been involved in far too much litigation in this matter in two courts, and a costs assessment would not be in anyone’s interest.
20. The bland form of the first respondent’s costs schedule filed on 24 February 2020 does not assist the Court with the fixing of a sum. Doing the best that we can in the circumstances, we consider that an appropriate sum is $60,000 (Graham & Squibb (2019) FLC 93-892 at [92]–[93]). There will be an order made that the appellant pay the first respondent’s costs fixed in the sum of $60,000.

 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 28 September 2020.

 

Associate:

 

Date:  28 September 2020

Posted in: Derek Legal Blog at 14 October 20

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