BANFIELD & BANFIELD
[2020] FCCA 1396
•3 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANFIELD & BANFIELD | [2020] FCCA 1396 |
| Catchwords: FAMILY LAW – Costs – following the withdrawal and dismissal of a Contravention Application |
| Legislation: Family Law Act 1975 (Cth), s.117 Federal Circuit Court Rules 2001 R. 21.02 & Schedule 1 Federal Circuit Court Act 1999 s. 86. |
| Cases cited: Penfold v Penfold (1980) 144 CLR 311 Latoudis v Casey(1990) 170 CLR 534 Brown v Brown [1998] FamCA 115 Collins & Collins (1985) FLC 91-603 Cachia v Hanes [1994] 179 CLR 403 In the marriage of Briese (1986) FLC 91-713 In the Marriage of Rouse (1981) FLC 91-073 |
| Applicant: | TERRY WAYNE BANFIELD |
| Respondent: | KELLENE MAVIS BANFIELD |
| File Number: | SYC 3396 of 2019 |
| Judgment of: | Judge Kemp |
| Hearing date: | In Chambers |
| Date of Last Submission: | 10 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Brydens Lawyers |
| Solicitors for the Respondent: | Francis Legal Pty Ltd |
THE COURT ORDERS THAT
The respondent mother do all things reasonably necessary to cause her solicitor, Mr Joseph John Francis of Francis Legal Pty Ltd to pay the father his legal costs in respect of the Contravention Application withdrawn and dismissed on 5 February 2020 in the sum of $503.00, within 30 days of today’s date.
There be no order as to costs between the parties in terms of any costs application, the subject of order 1 above.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3396 of 2019
| TERRY WAYNE BANFIELD |
Applicant
And
| KELLENE MAVIS BANFIELD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant father bought a Contravention Application filed on 25 November 2019 against the mother in terms of the asserted breach of parenting orders made on 5 September 2019 (“the interim orders”).
The interim orders and notations provided, as follows:
(1)That the children DAKOTA MAVIS TERRIE BANFIELD and ZAC JOHN ERIC BANFIELD born 30 March 2009 (“the children”) reside with the mother.
(2)That the children spend time with the father each alternate weekend from 6pm Friday until 6pm Sunday commencing on Friday 13 September 2019.
(3)That the parties shall not denigrate each other or a member of the extended family in the presence or hearing range of the children and shall immediately remove them from the presence or hearing of any person who does so.
(4)That the parties are prohibited from consuming any alcohol or drugs including but not limited to opiates, amphetamine, cannabis, cocaine, and benzodiazepines.
(5)That the parties shall submit themselves to chain of custody testing urinalysis within 48 hours of receiving a written request from the other party’s lawyer with no more than one (1) request per month;
(6)That if a request falls on a Friday the parties are permitted to undertake a chain of custody testing urinalysis on the following Monday.
(7)That the parties shall not consume alcohol within twelve (12) hours prior to spending time with the children.
(a)That the mother deliver the children to the father at the McDonalds at Thornleigh at the beginning of the father’s time with the children; and
(b)That the father return the children to the mother at McDonalds Wentworthville at the conclusion of the father’s time with the children.
(8)That the parties shall encourage and facilitate telephone communication between the children and the other party whilst in their care as requested by the children at a frequency of no less than once every three (3) days.
(9)That without admission the father is not to physically discipline the children whilst in his care.
(10)That the father is prohibited from taking the children on any hunting trips whilst in his care and also the father will ensure that all hunting weapons and utensils are safely locked away and are not able to be accessed by the children.
(11)That the parties are at liberty to contact the children’s school and sporting bodies.
(12)That the parties are at liberty to attend the children’s school and sporting events.
Notations:
(13)The property matter has a mention date of 3 October 2019 and the parenting proceedings will be adjourned to that date.
(14)The father agreed to a final ADVO, on a “without admissions” basis, for a period of 12 months on 9 August 2019.
(15)The father said that he requested some make up time but there was no agreement to those matters, at this time.
(16)On 3 October 2019, the Court will assess the current interim orders and whether the parties need a Child Dispute Conference or Child Inclusive Conference given the ages of the children.
The interim orders were made in light of a history of alleged drug and alcohol use and/or abuse on the part of the parties in this matter and, in particular, orders 4, 5, 6 and 7, as referred to in paragraph 2, above.
The Contravention Application alleged 2 breaches as follows:
Contravention 1
On 11 October 2019, the mother without reasonable excuse provided the father with a urinalysis result that was not in accordance with the sample integrity criteria with the Australian standards for drug testing pursuant to the interim orders.
Contravention 2:
On 31 October 2019, the mother without reasonable excuse has not provided the father a copy of her chain of custody urinalysis result and her solicitor has not confirmed whether she has undertaken a chain of custody test pursuant to the interim orders.
On 5 February 2020, the matter came before the Court and the following orders and notations were made:
(1)The Contravention Application filed on 25 November 2019 is withdrawn and dismissed.
(2)The costs in respect of the said contravention are reserved.
(3)By consent, orders 1 and 2 and the notation in (a) be made in accordance with the document signed by the parties legal representatives, initialled by me and placed with the papers as follows:
(a)That, within 21 days from the date of these orders, the father shall file and serve submissions in respect to costs.
(b)That, within 14 days thereafter, the mother shall file and serve her submissions with respect to costs.
(c)NOTATION: That the Court shall consider the matter as to costs in Chambers.
(4)The parties prepare, collaboratively, a document setting out the agreed and disputed facts to be forwarded to Chambers within 35 days of today’s date.
NOTATIONS:
(5)The mother seeks that there be no order as to costs.
(6)The parties agree no oral evidence will be required.
(7)Upon receipt of the submissions and the above document, the costs decision will be reserved.
On 26 February 2020, the father’s solicitor provided his written submissions.
On 10 March 2020, the mother’s solicitor provided her written submissions.
The father relies on his affidavit sworn 19 November 2019 in support of the Contravention Application.
The mother relies on the affidavit of Mr Joseph John Francis, being her solicitor, sworn on 3 February 2020. Relevantly, Mr Francis states that he was aware of the receipt of the father’s solicitor’s letter for the mother to undertake a urinalysis test of 31 October 2019 but had not read that letter so as to understand that a request pursuant to the interim orders had been made until after the required 48 hours’ notice period had expired as he was involved in a very busy period at work. He said he could not actually recall the exact date that he had read the subject letter. He asserted that if the father’s solicitors had made the request in a separate letter (not being part of the chain of correspondence passing between the parties’ legal representatives, critical of the various testing regimes, as referred to below), he would have, as part of his usual practice immediately forwarded such a request to his client. Mr Francis, however, accepted full responsibility in terms of the mother’s failure and offered to pay costs, as referred to in his correspondence, referred to below.
As noted in paragraph 5 above, the Court’s determination is based only on a study of the documents before it, including affidavits read and the submissions of the parties’ legal representatives. Neither party has sought to adduce oral evidence or to cross-examine the other and, accordingly, there is no provision for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact, after testing credibility and truthfulness.
Factual Matters
There appear to be a number of relevant, uncontested, facts, as follows:
a)On 5 September 2019, the interim orders, as set out in paragraph 2 above, were made.
b)Following the making of the interim orders, there was correspondence between the parties’ solicitors as exhibited in their submissions which were to the effect, as set out below.
c)On 26 September 2019, the father’s solicitor (Brydens Lawyers) emailed correspondence to the mother’s solicitor (Francis Legal) providing urinalysis test results for the father of 19 September 2019 (requested on 17 September 2019) and requesting that the mother submit to a chain of custody urinalysis within 48 hours of that email. The mother’s solicitor submitted that this email has no relevance to this costs application.
d)On 30 September 2019, the mother’s solicitor wrote a letter to the father’s solicitor acknowledging receipt of the father’s urinalysis test results and querying the father’s same and as to whether he had complied with chain of custody testing and whether he had diluted the specimen noting a comment on the test result had stated: “very low level of creatinine measured. If dilution of urine is suspected, suggest supervised recollection of specimen”; and, requesting a further test be undertaken within 48 hours. The mother’s solicitor submitted that this letter has no relevance to this costs application
e)On 30 September 2019, the father’s solicitor responded by letter outlining that at the top of the test results document was a reference which stated: “C-O-C maintained: Yes”; indicating that the father had complied with chain of custody testing at the testing centre/pathology laboratory by attendance at a laboratory located in Penrith where he was supervised by 2 employees. Further, this letter denied that the father would attend a further test/re-test noting that only one (1) test could be requested per month, pursuant to order 5 of the interim orders. This letter, further, stated that the father had drunk between 1-2 litres of water prior to his test (as he was advised that he would be required to provide a 6 minute stream, otherwise the test would not yield an accurate result), which explained the low level of creatinine measured. Further, a request was made for the result of the mother’s urinalysis as requested on 26 September 2019. The mother’s solicitor submitted that this letter has no relevance to this costs application.
f)On 11 October 2019, the mother’s solicitor forwarded to the father’s solicitor, the mother’s urinalysis test results of 27 September 2019 and sought clarification of the father’s test provider so that contact could be made to enquire further.
g)On 17 October 2019, the father’s solicitor wrote to the mother’s solicitor requesting that the test results be provided without delay. They, further, advised of the location of the father’s testing and questioned the mother’s test results which they said suggested dilution and that the sample she provided did not meet the sample integrity criteria as set out in the Australian Standards and that they, therefore, assumed that the test had not been undertaken while supervised and requested details as to where the testing was undertaken so that they could make their own enquiries. The mother’s solicitor submitted that this letter has no relevance to this costs application.
h)On 31 October 2019, the father’s solicitor wrote to the mother’s solicitor confirming their conversation with the father’s testing facility that each person who attends Douglas Hanly Moir for urinalysis testing is supervised in accordance with Australian standards. Further, the solicitor advised that they had discussed the mother’s urinalysis results, in particular her sample integrity, with the father’s testing facility, and confirmed that: “This sample has not met the sample integrity criteria outlined in the AS4308:2008 standard for drug testing” referred to. That testing facility advised that such a paragraph only appears on results if the test was not supervised during collection or the sample not handled in a controlled manner, as prescribed by the Australian standards. The father’s solicitor then requested that the mother undertake a further test with chain of custody within 48 hours and noting that the interim orders prohibited the use of illicit substances. The father’s solicitor then refused to advise the father not to drink any water or liquid prior to the next urinalysis as it would “infring[e] on his fundamental human rights” but advised him to limit his water intake prior to any further urinalysis.
i)On 14 November 2019, the father’s solicitor wrote to the mother’s solicitor advising that the mother’s urinalysis results had not been received and that if they did not receive a copy of the result, they would file an Application in a Case and seek costs.
j)On 21 November 2019, the father’s solicitor wrote to their agent, Mr Fernie, seeking confirmation as to when the “application” had been filed.
k)On 25 November 2019, the Contravention Application was filed on behalf of the father.
l)On 26 November 2019, the father’s solicitor served a copy of the Contravention Application and affidavit in support on the mother’s solicitor.
m)On 3 December 2019, a letter was provided from Laverty Pathology (Dr H Caine, Chemical Pathologist) confirming that the mother’s urinalysis followed chain of custody testing guidelines and that there was no discrepancy in the results of the testing conducted on 27 September 2019.
n)On 4 December 2019, the mother’s solicitor forwarded a letter to the father’s solicitor admitting that they had overlooked the request for urinalysis in the letter of 31 October 2020 and that the mother had no notice of this request.
o)On 4 February 2020, the following further correspondence passed between the parties’ legal representatives:
i)The mother’s solicitors wrote on a “without prejudice” basis to the father’s solicitors confirming that the mother had never received any notification of the 31 October 2019 request and that as a result she did not undertake the testing and that the mother’s solicitor accepted responsibility for this and put an offer to resolve the contravention by it being withdrawn by the father and that they would pay his costs in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 as agreed or assessed but, if this was not accepted, then the mother would also seek costs.
ii)The father’s solicitor’s responded on a “without prejudice” basis, that they would withdraw the contravention application if they were paid $251.50 per hour for 5 hours of work, totalling $1,257.50. They, further, advised they were considering filing a further Contravention Application in relation to telephone calls between the child and the father. They also made an offer in terms of time to spend arrangements.
iii)The mother’s solicitor responded on a “without prejudice” basis advising that 5 hours of work was excessive and they would only pay 2 hours at $251.50 per hour totalling $503.00 with such offer to remain open until 9.00am 5 February 2020.
iv)The father’s solicitors responded by email that they rejected 2 hours and would accept 4 hours at the hourly rate of $251.50, totalling $1,406.00. The Court notes that 4 hours, at this hourly rate, totals $1,006.00.
v)The mother’s solicitor’s responded by email that they rejected that offer and would offer no more than the 2 hours as referred to in (iii) above.
vi)The father’s solicitor responded to the mother’s solicitor by email on a “without prejudice basis save as to costs” outlining their position in relation to the Contravention Application and advising what they would be seeking in Court the next day.
vii)The mother’s solicitor responded by email to the father’s solicitor’s reconfirming that they had no basis for the Contravention Application and that their offer was generous.
Costs submissions
The father’s solicitors claimed costs on behalf of their client noting that they had forwarded to him a Memorandum of Costs and Disbursements dated 25 February 2020 totalling $3,830.00, plus GST of $383.00, being $4,213.00. The memorandum does not provide a break down in terms of determining how the sum of $3,830.00 is calculated.
In relation to Contravention 1 of the Contravention Application, the mother submitted that the father has not lost anything given that he was always proposing to file a Contravention Application in relation to the mother’s missed request for drug testing, as referred to in Contravention 2.
Further, the mother submitted that the father had failed to particularise Contravention 1 and provided no evidence in relation to this alleged act of contravention. The mother submitted that the Contravention Application had asserted a date of contravention of 11 October 2019 with no supporting documentation as to how this date had been arrived at or as to what the contravention related to. The mother submitted that her solicitor forwarded a letter dated 11 October 2019 which attached the urinalysis results from 27 September 2019, that being the only reference that they were aware of as to 11 October 2019.
The mother’s affidavit attached a letter from Dr H Caine, Chemical Pathologist (referred to in paragraph 11(m) above), opining that the mother’s urinalysis followed chain of custody results and that, therefore, the father’s Contravention Application in terms of Contravention 1, would have failed.
The mother’s solicitor’s submitted that in their letter of 4 December 2019, in relation to Contravention 2, they had admitted at the first available opportunity that the request received by them on 31 October 2019 had been overlooked, that the mother had no knowledge of the request and that they took full responsibility for the failure to notify the mother and offered to pay the father’s costs as agreed or assessed and that the Contravention Application would be finalised. Further, that the father would not have been successful, in any event, but the offer was made for commercial reasons. The mother’s solicitor was of the view that minimal additional work would have been undertaken by the father as:
a)The letter requesting the analysis was contained within a letter of unrelated issues.
b)The additional email request was contained within a short email on 14 November 2019.
c)The Contravention Application had a further 3.5 lines added for the second contravention.
d)The father’s affidavit was extremely short.
e)The father failed to provide any particulars or itemised accounts as to his legal costs claimed.
f)The mother would not seek any costs relating to the current costs application.
The father submitted that the mother’s solicitor had not relayed the urinalysis test request to the wife on 2 occasions being 31 October 2019 and 14 November 2019 (being an email) and that the father’s position remained that although both requests stemmed from the initial request there were 2 separate instances of the mother contravening the interim orders. The father, further, submitted that there was no explanation by the mother as to her knowledge and understanding of the request of 14 November 2019. The Court notes that the father’s Contravention Application filed on 25 November 2019, being after the 14 November 2019 date, only relied on the one (1) date of contravention, being 31 October 2019.
The father, further, submitted that the material referred to in paragraphs 13 and 14 above had not been provided to him or his solicitors and that he had only been served with that information on 3 February 2020, being 2 days prior to the relevant date in Court, being 5 February 2020.
The Law
The Court’s general power to award costs is found in s.86 of the Federal Circuit Court Act 1999 and, in particular, pursuant to Rule 21.02 of the Federal Circuit Court Rules2001.
Pursuant to Rule 21.02(1) of the said Rules, an application for an order for costs may be made:
a)At any stage in a proceeding; or
b)Within 28 days after a final decree or order is made; or
c)Within any further time allowed by the Court
Pursuant to Rule 21.02 (2) of the said Rules, in the making an order for costs in a proceeding, the Court may:
a)Set the amount of the costs; or
b)Set the method by which the costs are to be calculated; or
c)Refer the costs for taxation under part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
d)Set a time for payment of the costs, which may be before the proceeding is concluded.
In relation to costs, s.117 of the Family Law Act 1975 states:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) 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.
(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.
(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
(4A) If:
(a) under section 91B, an officer intervenes in proceedings; and
(b) the officer acts in good faith in relation to the proceedings;
the court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Section 117 of the Act was considered by the High Court of Australia in Penfold v Penfold (1980) 144 CLR 311, where it was said:
“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”.
In Latoudis v Casey(1990) 170 CLR 534, the High Court of Australia stated as follows:
"in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings".
Section 117 of the Act, provides for a discretionary power in the Court. The Court must examine each of the factors, set out in the section, in turn, in relation to justifying a costs order. A costs order can be made on the basis of one or a combination of those factors Brown v Brown [1998] FamCA 115. The discretion to award costs is a broad discretion: see for example Collins & Collins (1985) FLC 91-603.
The issue of costs were outlined in Cachia v Hanes [1994] 179 CLR 403 at paragraph 98 as follows:
“Indeed, the list of matters set out in sub-s (2A) to which the Family Court is directed to have regard in making orders under s 117(2) indicates clearly that the subject-matter of the orders to be made under s 117(2) is the costs which a person may be ordered to pay another as indemnity for that other's liability for professional fees and out of pocket expenses reasonably incurred in the litigation, that is, "costs" as that expression is ordinarily understood in the law.”
Application of the Law
Section 117(2A)(a) The financial circumstances of the party
The parties make no submission with respect to this factor. The Court notes that Mr Francis, as a solicitor, has indicated a financial preparedness to meet a costs order in the sum of $503.00.
Section 117(2A)(b) If any party in receipt of legal aid
The parties make no submission in relation to this factor and the Court accepts that this factor is not applicable.
Section 117(2A)(c) The conduct of the parties in relation to the proceedings
Both parties assert that the other’s conduct ground a costs order. Some of that conduct relates to the legal representatives, themselves, and, in particular, to Mr Francis in his clear acknowledgment that he failed to pass on a request to carry out a urinalysis test to his client.
In the circumstances, the Court is of the view that busy legal practitioners should be in a position, to an extent, to accommodate each other’s implementation of their professional obligations. To continue the current application for costs when Mr Francis had made it clear that he was at fault has the potential to not only take up unnecessary Court resources but also has the potential to continue the level of disputation between the legal representative’s clients, themselves.
The Court is of the view that Mr Francis’ offer of 2 hours at $251.50 per hour totalling $503.00 should be assessed as against the costs applicable under Schedule 1 for the commencement of enforcement proceedings noting that the daily hearing fee for a short mention was $305.00 (Item 13) with an advocacy loading of 50%, being $457.50, inclusive of GST. The Court is of the view that this matter does not warrant indemnity or solicitor/client costs. The Contravention Application had its first return date on 5 February 2020 in a duty list. The matter was not listed on that day for a hearing. The Court accepts that both parties dealt with the matter, on that day, as expeditiously as they could and, ultimately, orders were made which reflected the parties’ agreed outcome, save as to the costs issue. Given that assessment, the Court is of the view that Mr Francis’ offer was reasonable and should have been given appropriate consideration, notwithstanding the costs incurred by the father, at that time. There has been no separate breakdown of those costs, in any event.
The Court is of the view that the offer proposed by Mr Francis weighs in support of a costs order as against the mother but on the basis that she do all things reasonably necessary to have Mr Francis (as offered by him) pay the costs in the sum of $503.00.
The Court adopts the finding of Smithers J In the marriage of Briese (1986) FLC 91-713 where he stated that the husband “failed significantly to co-operate in a manner calculated to bring the proceedings to an early conclusion at a minimum of cost” as supportive of a costs order being made against the husband. As Smithers J also said, “there is an obligation on each party to act so as to provide a basis upon which the two of them are in a position to resolve the case by agreement, or proceed to a hearing, as expeditiously as may reasonably be done.” The Court is not satisfied that the father, in this case, fulfilled that obligation to the extent that any costs sought by him above and beyond the sum proffered by Mr Francis of $503.00 should be ordered in his favour.
Section 117(2A)(d) Proceedings necessitated by the failure of a party to comply with previous orders
The Court accepts that alleged Contravention 2 of the Contravention Application was based on the mother’s failure to comply with an order which her solicitor acknowledged had not been communicated to the mother due to his oversight. Given the withdrawal of the Contravention Application in terms of Contravention 1, the Court cannot make any findings relevant to that asserted contravention, in terms of the costs application before it. The Court accepts the mother’s solicitor’s submission that much of the communication between the parties’ legal representatives which went to this issue, was irrelevant to the current costs application.
Section 117(2A)(e) Whether any party wholly unsuccessful in the proceedings
The Court accepts that in circumstances where parties pursue unsuccessful issues, the Court is entitled to make an order for costs against them. See In the Marriage of Rouse (1981) FLC 91-073.
However, the Court also accepts that it is not the intention of the legislation to award costs against a party on each and every occasion that a party is wholly unsuccessful.
The Court is not in a position to determine whether either party would have been wholly successful or unsuccessful, given the orders made on 5 February 2020.
Section 117(2A)(f) Any offers in writing
A written offer of settlement is “highly relevant” to the question of costs. Such offers provide litigants with an incentive to settle and thereby avoid or reduce the costs of litigation (see Robinson & Higginbotham (1991) FLC 92-209).
As Justice Nygh stated in In the Marriage of Murray (1990) FLC 92-173, a party cannot reject or ignore a reasonable offer seriously made except at his or her peril as to costs:
“If one considers the issue as a matter of policy, that is, on the basis of what the Parliament's objective and purpose was in enacting the legislation, it is clear that the Parliament wished to encourage settlements thereby reducing the cost of litigation to the parties and to the community. That must mean that a party cannot reject or ignore a reasonable offer seriously made except at his or her peril as to costs. At the same time a party cannot sit tight and postpone a decision as to acceptance until a matter is at the door of the court. By that time an offer which might have been acceptable to the offeror because of savings in time and preparation costs, may have become unattractive. In this case the offer was left open for a reasonable period, was clear and capable of acceptance which would have saved the parties considerable costs....”
The Court accepts that it is important for it to give proper consideration to written offers of settlement which have been made. These offers enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to enable proper consideration to be given to it is something to which “very significant weight” ought normally be given. See Browne v Green (2002) FLC 93-115.
Given the unusual circumstances of this matter, namely that the solicitor for the mother acknowledged fault, significant weight should have been given to his offer to reasonably accommodate the father’s position in filing his Contravention Application and in terms of its withdrawal and dismissal.
Section 117(2A)(g) Such matters as the Court considers relevant
The parties submit and the Court accepts that this factor is not applicable.
Conclusion
Accordingly, the mother will be ordered to cause her solicitor, as proffered by him, to pay the father his legal costs, assessed in the sum of $503.00. The Court is of the view that this amount is appropriate, reasonable and just in all of the circumstances of this matter.
There has been no time limit sought for any payment of costs. The Court is of the view that it will allow the mother 30 days to arrange for the payment of costs, as assessed.
The Court accepts the further submission of Mr Francis (see paragraph 16(f), above) that, while his client has been successful in terms of the costs order sought, no further costs order should follow, namely that each party should, otherwise, bear his or her legal costs relating to the current costs application matter.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 3 June 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Appeal
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Procedural Fairness
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