The father was awarded custody and sole parental responsibility for the children of his relationship with his former wife, Ms Alexander, who had since remarried to a registered sexual offender. The mother was ordered to spend time with the children on alternate weekends.
The father had expended several thousands of dollars in legal fees over a period of approximately 24 months, while the mother had been self-represented throughout the trial.
Her Honour Justice Macmillan heard written submissions from the parties as to costs, and the Father applied for the Mother to pay his costs incidental to the trial in the sum of $45,587.35. The Mother opposed the making of such an order in lengthy written submissions.
Section 117(1) of the Family Law Act 1975 (Cth) (‘the Act’) provides that each party to family law proceedings bears his or her own legal costs.
However, the court has a discretion in the application of section 117(1), and section 117(2) of the Act additionally provides that if ‘the court is of opinion that there are circumstances that justify it in doing so, the court may … make such order as to costs … as the court considers just.’
There are a number of factors that the court must consider under the Act when making a costs order in family law proceedings.
Section 117(2A) provides:
“(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.”
In the case of I and I (No 2) (1995) 125 FLR 332, the Full Court specified that these considerations ‘must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs.’
Macmillan J found that the circumstances of the case did justify the making of an order for costs.
Firstly, Her Honour determined that the financial circumstances of the parties (consideration (a)) were neither in favour nor against the making of a costs order, however the financial circumstances were relevant when it came to the quantum of the costs order.
The Mother was found to have less weekly income than the Father, though the Father was found to have higher reasonable costs of living.
Secondly, Macmillan J further found that the conduct of the parties (consideration (c)) was severely detrimental to the Mother’s case opposing the costs orders.
Her Honour found clear instances of the Mother and her new partner misleading the court and at worst, being ‘deliberately untruthful’ during cross-examination. The Mother was found to have known that the affidavit of her new partner contained false evidence, and Her Honour dismissed the submission that her misleading conduct was excusable by being self-represented.
Thirdly, Her Honour identified that the Mother was wholly unsuccessful in the final orders of the proceedings, and this was detrimental to her case opposing a costs order (consideration (e)). On the two issues that Her Honour decided, the Mother was found to be equally unsuccessful in both, namely, who the children should live with (decided in favour of the Father) and what time, if any, the children should spend with the Mother’s new husband (determined children should have no contact).
Fourthly, Her Honour identified that the Father had made a written offer (consideration (f)) and such written offer was broadly consistent with the recommendations contained in the family consultant’s report.
Fifth and finally, Her Honour considered relevant the fact that the proceedings were necessitated by the Mother’s failure to disclose to the Father that her new husband was a registered sexual offender (consideration (g)). The Mother’s tepid awareness of the significance of the offences and her noted prioritisation of her new husband over her children was of further considered relevance.
On these considerations, Macmillan J ordered costs against the Mother – in doing so diverting from the general rule that each party bear their own costs.
However, while the Father’s legal costs were determined to be reasonable by Macmillan J, Her Honour took into consideration the discrepancy in financial circumstances between the parties (as previously discussed), and instead ordered that the Mother pay half of the Father’s reasonable costs.
Her Honour stated that (at paragraph 48):
“Although an order for costs in the sum of $45,587.35 or for that matter a lesser sum would place a significant financial burden upon the mother, I am however also mindful of the fact that the father has been put to significant expense in order to do what he considered was necessary to protect and advance the welfare of [his children], a course which the outcome of the case supports. This leads me to conclude that the father should be compensated for at least some of the costs he has incurred in doing so.”
This case illustrates a number of fundamental lessons to be learned when litigating childrens issues.
Firstly, it is likely that had the Mother been legally represented throughout the dispute and at the trial that a number of the problematic observations from Macmillan J could have been avoided. The costs of litigating children issues can be very high; however, this case demonstrates that prudent spending on legal advice and representation in the early stages of a proceeding can pay dividends during the later stages and can potentially avoid paying a significant amount in fees or costs later.
Secondly, while the chances of being ordered to pay the other parties costs are often remote, it is important to remember that the judge considers a broad range of factors and issues in deciding cases, and small factors can weigh up in the mind of a judge. Litigation should be conducted in an impeccable and forthcoming manner to maximise the beneficial outcomes from the process. The Father’s conduct in attempting to settle the matter by written offer creates a stark contrast between his case and his merits and the Mother’s misleading, deceptive, evasive and ultimately unsuccessful conduct at trial.
Thirdly, the general rule that each party bears its own costs is indicative of the fact that the family courts and jurisdiction, particularly when it comes to childrens issues, are not courts of retributive justice. In ordering that the Mother pay half of the Father’s legal expenses, Macmillan J highlighted the necessary expenses incurred by the Father to protect and advance the welfare of the children. This case is yet another reminder that the court process should not be utilised to litigate personal qualms, and that the best interests of the children are always paramount in childrens issues – even when it comes to costs.
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