Abberley & Clement (No 3)
[2024] FedCFamC2F 871
•10 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abberley & Clement (No 3) [2024] FedCFamC2F 871
File number(s): CAC 2180 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 10 July 2024 Catchwords: FAMILY LAW – COSTS – long-running parenting litigation – various Orders made for the Applicant Father to undertake hair follicle testing and to provide information regarding his mental health which, if complied with, would have provided a “pathway” to commence the process of spending time with his young son but never complied with – Independent Children’s Lawyer had likewise made multiple similar requests to the Father regarding drug screens but likewise never complied with – separate costs Order made against the Father in unsuccessful appeal – Father effectively refused to engage in the process relating to the Mother’s Application regarding costs resulting in the matter running “undefended” – only “submission” made by the Father in the course of a directions hearing was that if he was not going to spend any time with his son he was not going to pay anything – costs Order as sought by the Mother. Legislation: Family Law Act 1975 (Cth) ss.117, 117(2), 117(2A) Cases cited: Abberley & Clement [2021] FedCFamC2F 211
Abberley & Clement (No 2) [2023] FedCFamC2F 1508
Abberley & Clement [2024] FedCFamC1A 81
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Penfold v Penfold (1980) 144 CLR 311
Ressel & Morath [2023] FedCFamC1A 145
Stephens v Stephens (2011) 44 Fam LR 117
Division: Division 2 Family Law Number of paragraphs: 21 Date of last submission/s: 27 June 2024 Date of hearing: 14 June 2024 & otherwise “on the papers” Solicitors for the Applicant KJB Law Respondent In person ORDERS
CAC 2180 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CLEMENT
ApplicantAND: MR ABBERLEY
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
10 JULY 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Within 60 days, the Applicant is to pay the Respondent’s costs of the proceeding fixed in the sum of $64,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
In October 2021, I made interim parenting Orders and delivered reasons in the Respondent Mother’s favour, which (a) prevented the Applicant Father spending any time with his then very young son (who had never met the Father), and (b) permitted the Mother to relocate from Region G of New South Wales, then from City KK, to a place near Sydney and closer to her family with whom she had recently resumed contact.[1] Those Orders were not appealed.
[1] See Abberley & Clement [2021] FedCFamC2F 211.
On 29th November 2023, I made final parenting Orders and published reasons, again largely as sought by the Mother (supported by the Independent Children’s Lawyer (“the ICL”).[2] Those Orders were appealed by the Father. His appeal was dismissed on 13th May 2024 and an Order for costs was made against the Father.[3]
[2] See Abberley & Clement (No 2) [2023] FedCFamC2F 1508.
[3] Abberley & Clement [2024] FedCFamC1A 81.
On 4th June 2024, the Mother filed an Application in a Proceeding seeking (a) leave to proceed out of time, and (b) an Order for costs against the Father. The reasons for this Application were set out in detail in the Mother’s supporting Affidavit, sworn 3rd June 2024, which listed the litany of matters relating to her very difficult financial position arising from the Father’s multiple, but unsuccessful, Applications. The Affidavit, and the submissions set out below, outline the significant number of Orders and directions (either from the Court or requests by the ICL) with which the Father has failed to comply, most notably regarding drug testing, and equally importantly, reports from his treating psychologist.
Although it was never argued as such, the matter now effectively proceeds on an undefended basis. In addition, I accept and adopt the submissions of the Mother in support of her Application. For (a) the reasons set out below, (b) the Court accepting the submissions of the Mother, and (c) the Father’s acknowledged failure to engage and equally his failure to comply with Orders to file submissions (or a Response to the Application), the Orders sought by the Mother should be made.
Orders sought by the Applicant
Orders sought by the Applicant were contained in an Application in a Proceeding, filed 4th June 2024. They were as follows:
1.That leave is granted for the Applicant to bring her Application for Costs in relation to the substantive Parenting proceedings out of time.
2.That the Respondent Father pay to the Applicant Mother costs fixed in the amount of $64,500.00, payable into the Trust account of KJB Law within 28 days of the date of these Orders.
Orders sought by the Respondent
In an email to the Court dated 27th June 2024, the Respondent Father stated:
His Honour should just make a judgment. I have nothing to give anyone. I have no money and I have no life so I may as well be dead.
These sad and unfortunate sentiments are consistent with the statements of the Father expressed by him in the course of a directions hearing on 14th June 2024, which he attended by video link on his own behalf. On that occasion, in the light of the reticence of the Father to engage and his indication that he was unable to acquire legal representation, the Court requested the ICL to assist the Father in filing necessary documents, which she kindly agreed to do. Notwithstanding this agreed upon assistance, the Father filed nothing in response to the Mother’s Application. Indeed, the Court ultimately directed the Father to file only written submissions and dispensed with any other documents being filed.
Submissions on behalf of the Applicant
Written Submissions on behalf of the Applicant were filed on 27th June 2024; they were as follows (emphasis in original; footnotes omitted):
1.The father commenced the substantive parenting proceedings by way of Initiating Application filed 25 October 2019. The child of the parties relevant to the proceedings was 6 weeks of age at that time. The father's Initiating Application did not seek any particularised Final Orders in relation to the child.
2.The mother filed a Response to Initiating Application of 6 February 2020 seeking Final Orders that the child live with her; that she have sole parental responsibility for the child; the father be restrained from contacting the mother or the child; and costs.
3.The father filed an Application in a Case on 25 January 2021. The mother filed a Response to the father's Application in a Case on 11 February 2021. These Applications were determined by the Court and Orders made on 22 March 2022. The Mother filed an Application to Review these Orders on 30 March 2022.
4.The mother's Application to Review was successful. On 20 October 2021 the Court discharged the Orders of 22 March 2021 and made Orders that, among other things, permitted the mother and child to relocate to the "greater Sydney Region". Both the published decision and the Orders of 20 October 2021 provided the father with a "pathway" that could have resulted in the commencement of supervised visits with the child. The "pathway" required the Father to undertake and provide six months of clear drug screens. The Reasons opined (at paragraph 118) that the Court would need a report from the Father's treating psychologist that addresses the matters of concern raised in the reasons before any recommencement of time.
5.After the Orders of 22/03/2022 the ICL made approximately 14 written requests to the father to undergo drug testing. The father failed to comply with any of these requests.
6.Almost 4 years after having filed his Initiating Application the father filed an Amended Initiating Application on 27 June 2023 particularising Final Orders he sought. The Final Hearing occurred on 6 and 7 July 2023.
7.The father provided no expert evidence as to the status of his mental health at the Final Hearing; no evidence of any engagement with a mental health professional in the almost 3 years since the Reasons and Orders of 20 October 2021; and no evidence as to drug use.
8.Final Judgement and Orders were made on 29 November 2023. The father's Application wholly failed, and the mother's Response to Initiating Application of 6 February 2020 wholly succeeded.
9.The father Appealed the final decision by way of Notice of Appeal filed on 20 December 2023. The father's Appeal was wholly dismissed on 13 May 2024 and the father Ordered to pay the mother's costs in a fixed amount of $15,000.
10.The mother filed the present Application for Costs after the Appeal had been disposed of.
11.The mother was not in receipt of Legal Aid during the proceedings, nor was the father.
12.With reference to the Mother's affidavit (filed in the Appeal) sealed 06/02/2024
a. Subsequent to the commencement of the proceedings the mother owned an unencumbered home (that she inherited). The mother and her partner now live in rented accommodation at $740 per week, the mother having sold her real property so that, among other things, she could meet her legals costs;
b. The mother is now unemployed, in receipt of Centrelink benefits and her partner earns a comparatively modest income of about $1,100 per week. Basic household expenses presently exceed household income;
c. The father has a history of not paying child support, delaying lodgement of tax returns (and thus impeding reassessment of child support payments) and becoming unemployed should assessed child support increase above the minimum amount. The father is presently assessed to pay child support of approximately $143.33 per month.
13.The father owns a home [in Region G], NSW, with an undischarged mortgage and nil owing, and an established redraw facility (paragraph 10 of his affidavit affirmed 4/03/2024). The father asserts in his affidavit that he is unemployed, though there is no evidence to suggest that he does not have the capacity to be employed.
14.Section 117(1) provides that each party to proceedings under the Family Law Act 1975 (Cth) ("the Act") shall bear his or her own costs subject to the provisions of s 117(2), which allows the court to make such order for costs as the court considers just. This extends to making an order for costs on an indemnity basis.
15.When considering what order, if any, is to be made as to costs the court is to have regard to the matters set out at s 117(2A). The court does not need to be satisfied that there are special circumstances, an exceptional case or otherwise a "clear case" for the making of costs order. A finding of justifying circumstances is, however, an essential preliminary to the making of a costs order (Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311 ). The court's discretion in relation to the issue of costs is broad (Collins & Collins [1985] Fam CA 5), as is the weight to be given to a particular matter under s 117(2A). There is nothing to prevent one factor from being the sole foundation for an order for costs, nor to prevent one factor from being determinative of the application for costs (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another [2005] FamCA 158; (2005) 33 Fam LR 123.
16.There is no closed category of cases in which indemnity costs may appropriately be awarded and doing so is at the Court's discretion, though the often-cited decision in Colgate Palmolive Co v Cussons Pty Ltd ('Colgate Palmolive') established that there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice of awarding a party deserving of an award of costs only party/party costs.
17.Pursuant to Rule 12.17 (1) (a), the Applicant mother seeks an Order that the respondent pay to her costs in a fixed amount of $64,500 (inclusive of GST). The mother's entire legal cost of the proceedings (not including the Appeal) were $104,676.60 . The fixed amount sought by the mother is approximate to costs on an indemnity basis incurred following the successful Application to Review up to and including the final hearing (inclusive of the cost of Counsel for the final hearing , $13,750).
18.In circumstances of the father commencing the proceedings; not following the recommendations of the Court Experts nor the comments by and Orders of the Court that created a pathway to (at least) supervised time prior to the Final Hearing though nevertheless pressing his Application in a wholly unsuccessful manner the Order and fixed amount sought by the mother is both warranted and appropriate.
Submissions on behalf of the Respondent
In accordance with his stated intentions on two occasions (at the Directions Hearing on 14th June 2024, and with his short email to the Court dated 27th June 2024, the Father has not filed any submissions.
Outline of Principle
The statutory and jurisprudential considerations in relation to the making (or not making) orders for costs are well known. Although (or because) they are well known, it is sufficient to note the following from the Full Court decision in Stephens v Stephens.[4] Beginning at [62], the Full Court said (emphasis added):
[4] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41]:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
Also in Stephens, the Full Court commented summarily on the award of indemnity costs, relevantly at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
The decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (noted by the Full Court) is a regularly cited authority for relevant principle regarding the awarding of indemnity costs.[5] In that judgment, his Honour outlined the following principles (at 232 – 234), which I set out in full (emphasis added):
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1. The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal)and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
[5] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
I note the following additional matters. First, in addition to the statutory framework under s.117 of the Act regarding costs set out by the Full Court in Stephens above, s.117(2A)(c) refers in particular to one broad area of consideration by a Court regarding a possible award of costs which is of some potential relevance here. That sub-section provides that a Court “shall have regard to” … (emphasis added)
(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…
Secondly, while not precisely the situation here, in the general starting point of considerations of costs by the High Court in Penfold v Penfold (noted by the Full Court in Stephens), Murphy J said (at 318; emphasis added):
Presentation of a false statement of financial circumstances, which puts the other party to the trouble and expense of disproving it, is a circumstance which justifies an order for costs. Courts should regard such circumstances which tend to undermine the integrity of proceedings with great concern, and should do everything in their power to determine who is responsible in order to maintain that integrity.
Thirdly, more recently still, the Full Court in Ressel & Morath provided a further summary of principle, at [71] – [72] and [75] – [82], in the following terms:[6]
[6] Ressel & Morath [2023] FedCFamC1A 145.
[71] Section 117 of the Act is well understood. It provides that the making of any costs order in family law proceedings is discretionary in nature. The starting premise is that each party shall bear their own costs, but that general rule is subject to the provisions of s.117(2), which provides that a court may make such order for costs as it considers just if “the court is of opinion that there are circumstances that justify it in doing so”.
[72] The factors that are to be considered when contemplating the making of a costs order are those set out in s.117(2A) of the Act; albeit the court may give such weight as it considers appropriate to any relevant factor (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24]).
…
[75] Even if the appellant is impecunious or in poor financial circumstances, that is no bar to an award of costs being made (D & D (Costs) No 2 (2010) FLC 93-435.
[76] Neither party is in receipt of legal aid. The appellant acts for himself and the respondent is privately funded s.117(2a)(b).
[77] As for s.117(2A)(c), the respondent submitted that each time the appellant filed something out of time, (the late affidavits by way of a Summary, the Applications on 31 July 2023) that put her to the expense of recalibrating her case.
[78] It is plain that the appellant has been wholly unsuccessful (s.117(2A)(e)). It is an appeal that was doomed from the start.
[79] In the circumstances, especially that the appellant has been wholly unsuccessful on a wrongheaded appeal, and, put the respondent to the expense of considering his non-compliant material, a costs order in favour of the respondent is justified. The question then is on what basis – scale or indemnity.
[80] An order for indemnity costsis a significant departure from the normal standard and requires something exceptional (Harris & Dewell (No 2) (2018) FLC 93-863), where the Full Court said at [23]–[25]:
[23] In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”. In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
[24] That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.
[25] The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”
[81] In the well-settled authority of Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, Shepherd J provided some examples of circumstances that might justify the awarding of indemnity costs, and usefully, Holden CJ in Munday v Bowman (1997) FLC 92-784, at 84,660, drew from his Honour’s decision those examples:
(a) Where it appears that an action has been 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 known facts...
(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud...
(c) Evidence of particular misconduct causing loss of time to the court and to other parties...
(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions...
(e) An imprudent refusal of an offer to compromise
[82] That said, the categories of circumstances which enliven the discretion to award indemnity costs are not closed (Yunghanns v Yunghanns (2000) FLC 93-029 at [31]).
Consideration & disposition
In the final parenting judgment of November 2023, at [3], I noted the following non-exhaustive list of issues and concerns:
The matter is essentially one of evaluating closely various risks. Many of the risk factors were considered in the interim judgment. They included the Father’s drug-taking during the relationship (in which the Mother participated), his drug-taking post the relationship and his failure to undertake drug-testing as requested by the Independent Children’s Lawyer (“the ICL”), his abuse of the Mother during and after the relationship and stalking of the Mother. The Mother’s acute anxiety arising from the relationship with the Father endures, even while undergoing regular counselling from her psychologist, and is “triggered” even by mention of the Father’s name. The Mother’s anxiety is heightened or further “triggered” by the prospect (or even the thought) of [X] spending any time, or having any indirect contact, with the Father. The Mother further fears the risk of psychological pressure, potentially leading to abuse, of [X] should he start spending time with the Father. And finally, given [X[‘s young age, the Mother fears the child, inadvertently, giving information to the Father that would lead him to learn of the Mother’s location. This could lead, in the Mother’s view, to the Father returning to stalking her as he had done in the past, shortly after the relationship ended.
Many other risks were detailed in the interim judgment, which attached to it a large number of some of the most hurtful and appalling SMS messages from the Father to the Mother. Many of them were utterly disgusting. In the course of the final hearing, the Father acknowledged that the messages he sent the Mother were hurtful. He said he regretted sending them. My comments on them and the Father’s evidence at trial were set out in my reasons in support of the Final Orders made by the Court.
I accept, up to a point, that the Father has wanted to commence a relationship with his son. Regrettably, the modest range of things the Court, and the ICL, directed him to do get that “parenting ball” rolling, he never undertook. He can complain and decry his circumstances, and that he has no relationship with his still young son. He was given an opportunity and a pathway, albeit a very modest one, to connect with and perhaps commence a relationship with his son. He rarely if ever followed through. He simply did not comply with Orders and directions. His mental health and his drug use were critical matters about which the Court sought and directed the Father to provide basic information. He did not do so. He cannot now complain about his plight regarding the lack of access to his son. Further still, he appealed my final parenting Orders and was unsuccessful. The Mother’s current Application does not include the specific-sum costs Order against the Father made at the conclusion of his unsuccessful appeal, although pursuant to Orders made on 13th May 2024, it was in the sum of $15,000.
Actions have consequences. This applies to “not acting” as much as it does to taking action. Such is the situation here. To repeat: the Court and the ICL both sought and directed the Father to provide important information regarding his mental health and his drug use. As noted in the Mother’s submissions, the number of requests for drug testing from the ICL were significant, but never complied with.
On the facts and circumstances here, (a) there are more than sufficient and relevant circumstances to warrant an Order for costs, and (b) for the same reasons, especially the non-compliance with Orders and directions over a very significant period of time, the specific amount of costs sought by the Mother should be made. Although her submissions contend that the amount claimed is equivalent of an indemnity costs Order, in my view it is not. This is simply because the Mother’s total costs she has paid her lawyers are well in excess of $100,000. Yet the amount she seeks from the Court is approximately $64,000. In my view, this sum does not constitute an indemnity costs Order. Be that as it may, for the reasons given and the submissions I have accepted, the Orders sought by the Mother are supported by the terms of s.117(2A) of the Act, perhaps in particular but not only sub-paragraph (c) of that section, and by the authorities to which I have referred.
The costs sought and now Ordered are to be paid within 60 days. In this regard, I note that the Mother’s submissions refer to the Father having an unencumbered property on in Region G, as well as having a re-draw facility over it. The Father’s protest of having “nothing” is obviously not accurate, while the Mother has borne an immense financial and psychological load of litigation that has dragged on since 2019. Hopefully with these Orders, the litigation chariot will, at last, grind to a halt.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 10 July 2024
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