BEHRENDT & CADENET
[2020] FamCA 342
•15 May 2020
FAMILY COURT OF AUSTRALIA
| BEHRENDT & CADENET | [2020] FamCA 342 |
| FAMILY LAW – COSTS – where the father seeks costs against the mother in respect of costs incurred during interim proceedings – where the mother makes a counter application for costs – where the mother is likely in a stronger financial position than the father – where the mother made exaggerated allegations – where conduct of the mother wasted Court time – where neither party was wholly unsuccessful and each party enjoyed a degree of success and failure – where the circumstances warrant the award of costs in favour of the father – where costs were sought on an indemnity or party/party basis or of a specific amount – order for the mother to pay 50% of the father’s costs of and incidental to her application – where costs ordered to be paid as agreed or assessed, with assessment not to take place until conclusion of the proceedings, without leave. |
| Family Law Act 1975 (Cth) s 117 Evidence Act 1995 (Cth) s 138 Family Law Rules 2004 (Cth) rr 1.04, 1.06, 1.07, 1.08 |
| Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406 Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131 Kohan and Kohan (1993) FLC 92-340 Latoudis v Casey (1990) 170 CLR 534 NMFM Property Pty Ltd v Citibank Ltd(No 2) (2001) 109 FCR 77; [2001] FCA 480 Northern Territory v Sangare (2019) 265 CLR 164 |
| APPLICANT: | Mr Behrendt |
| RESPONDENT: | Ms Cadenet |
| FILE NUMBER: | SYC | 7807 | of | 2016 |
| DATE DELIVERED: | 15 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | In Chambers by way of written submissions |
| DATE OF LAST SUBMISSION: | 20 January 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| SOLICITOR FOR THE RESPONDENT: | Avondale Lawyers |
Orders
That the mother pay 50% of the father’s costs of and incidental to the mother’s Further Amended Application filed on 13 March 2019, incurred after 10 April 2019 and up to and including 27 November 2019, as agreed or assessed, and in the event of assessment, no assessment is to take place prior to the final determination of the proceedings, without leave of the Court.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Behrendt & Cadenet has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7807 of 2016
| Mr Behrendt |
Applicant
And
| Ms Cadenet |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the applicant father, Mr Behrendt, (“the father”) and the respondent mother, Ms Cadenet (“the mother”) in relation to the child of the relationship, X, born … 2011 (“the child”).
This judgment concerns an application for costs by the father related to the Further Amended Application in a Case filed by the mother on 13 March 2019 (“Further Amended Application”) (first filed on 27 June 2018), the interim hearings before me on 10 April 2019, 11 October 2019 and 29 October 2019 with respect to that application, the mother’s counter application for costs of the same application and the father’s Response to her application. The father filed a third Further Amended Response to the mother’s Further Amended Application on 4 October 2019, (“His Response”). The father sought an order for the Further Amended Application to be dismissed, for orders increasing the time he currently spends with the child and an order for costs in his favour.
These reasons for judgment should be read together with my judgments Cadenet & Behrendt (No. 2) [2019] FamCA 748 delivered 11 October 2019 and Cadenet & Behrendt (No. 3) [2019] FamCA 827 delivered 27 November 2019 which provide some relevant procedural history and background. I will not repeat what I have set out in those judgments unless necessary for this judgment.
The mother’s Further Amended Application had gone through a number of iterations before it was first listed before me on 10 April 2019. The version which was listed on 10 April 2019 was filed on 13 March 2019. In summary it sought orders for the appointment of an expert in IT pornography viewing patterns to conduct an analysis of the father’s electronic devices and the appointment of a psychiatrist expert in Paraphilia to express an opinion about alleged pornography viewed by the father. The mother also sought to reduce the father’s overnight time with the child, alterations to changeovers, and she sought permission to travel to the United States of America annually with the child during the June and July winter school holiday period.
The father filed an Amended Response on 8 April 2019, which sought orders for the child to spend more time with him overnight and half of school holidays as well as orders with respect to changeover, telephone contact and to travel. He also sought orders for the return of electronic data and computer devices allegedly illegally and improperly accessed by the mother and various restraints upon the mother and the Independent Children’s Lawyer providing computer data to Dr B and a restraint upon the Avondale Lawyers acting for the mother. He further sought that the mother pay his costs of and incidental to this application and for the mother’s Further Amended Application to be dismissed.
The most contentious area of debate raised by the Further Amended Application concerned the mother’s desire for the appointment of a further Single Expert. It is convenient to repeat here that Dr B was appointed as Single Expert in these proceedings on 15 November 2017. Dr B prepared a report dated 11 May 2018. The mother’s Further Amended Application was said, in part, to be generated by comments of Dr B at page 25 of his report. The relevant comments are set out at length in Cadenet & Behrendt (No. 3) at [9]. As described in detail there, those comments of Dr B were made in response to allegations of the mother, made to him during interviews for the purposes of his report of May 2018. Dr B interviewed the mother on 12 March 2018 and spoke with the mother by telephone on April 24th & May 4th 2018. The mother’s allegations were to the effect that she had in her possession a large volume of material in the nature of digital images and movies depicting “fetishistic pornography” some of which was downloaded from the internet and some of which reflects self-recorded role plays of similar themes by the father with a partner. The mother claimed this material was owned by the father and had been extracted by the mother from several computer devices, as explained in my earlier judgments.
The mother contended the images and movies demonstrated that the father suffers from an addiction to highly sexualised or pornographic images. She also alleged these images and movies had been viewed or downloaded by the father and that he may have viewed such images in public, while with the child and other children and parents, or at home where the child might see the offending images. Dr B expressed the preliminary view that a more comprehensive appraisal of the mother’s material should be undertaken. He suggested public viewing, if true, might rise to the level of paraphilia, subject to the volume of material and pattern of viewing.
The offending images and movies were extracted from three computer devices by D Company, an IT forensics firm, on instructions from the mother. The mother asserted that Dr B, at the time of preparing his report, did not have the full extent of the offending material, save for four images contained within Exhibit “[R]-1” to her Affidavit filed 25 May 2017. The mother contended that further expert opinion should be obtained in relation to the material.
When the competing applications first came before the Court on 10 April 2019, I delivered oral reasons permitting the mother to travel with the child to the United States of America in the June/July 2019 school holidays. Certain other orders were made by consent, which do not need to be commented upon here.
In respect of the question of obtaining further expert evidence, orders were made by consent for the preparation of a schedule (which became three schedules), the purpose of which was to identify the material proposed to be provided to an expert and the subject of debate, the source of the material and some limited commentary by each of the parties. Schedules were produced and ultimately ran to some hundreds of pages, and purported to identify thousands of items (Cadenet & Behrendt(No. 2) [4]). These schedules (“the original schedules”) suggested there may have been over 5,000 items which the mother says were stored on computer devices and which she downloaded (Cadenet & Behrendt (No.3) [18]).
All extant applications came before the Court on 14 August 2019 for mention. The applications were then adjourned to 11 October 2019 for interim hearing, limited to the husband’s application concerning the admissibility of the digitally stored material contained in the original schedules jointly prepared by the parties pursuant to orders of the Court made on 10 April 2019.
On 4 October 2019, the father filed a Third Further Amended Response, which in summary sought orders for the mother’s Further Amened Application to be dismissed, for more time with the child, the return of computer data, various restraints upon the mother, D Company (who were not a party) and the Independent Children’s Lawyer providing computer data to Dr B, and a restraint upon the Avondale Lawyers acting for the mother.
On 11 October 2019 the interim hearing was not concluded, after most of the day had been taken up inconsequentially. I gave the following reasons in Cadenet & Behrendt(No. 2) at [7] – [8]:
When the matter was called on 11 October 2019 and counsel for the parties were invited to make opening comments, two things became apparent. First, it was conceded by the mother that in the three schedules produced pursuant to the orders of 10 April 2019, there was both duplication and the inclusion of separate items, things called “slices”, both of which needed to be excluded from consideration because they, to put it bluntly, created considerable doubling up.
Secondly, it became apparent to the Court that it was not possible, using the existing schedules, to isolate the parameters of exactly what the mother proposed to rely upon in supporting her contentions that the father had an obsessive or compulsive need to view pornography, perhaps at inappropriate times, and whilst the child was in his care.
Accordingly, orders were made for the preparation of more refined schedules, removing duplicates and excluding any material derived from a Computer device. The reasons for the removal of this latter material are set out in Cadenet & Behrendt(No. 2). The applications were then adjourned to 29 October 2019, part-heard.
The parties produced three further schedules which became Exhibits “A”, “B” and “C” on 29 October 2019. These reduced the number of items in the original schedules to slightly in excess of 1,000 items. The material underwent a further culling as agreed between the parties, excluding images of the father’s current partner, Ms C. Consequently the remaining material amounted to approximately 400 digital images together with a number of digital movies, the precise number of which was unclear but exceeded 50]. A bundle containing a sample of the images from the remaining material, upon which the mother relied, was tendered by consent and became Exhibit “D” (Cadenet & Behrendt(No. 3) at [18] – [19]).
Counsel for the mother provided a proposed final form of order sought by her after lunch on 29 October 2019. This document was marked “MFI 1”, because counsel indicated some small proposed changes, after consulting counsel for the Independent Children’s Lawyer. The final form of the orders sought by the mother was submitted to chambers on 30 October 2019 and was marked Exhibit “E”. It is unnecessary to set out the terms of these orders for the purposes of this judgment. They are found at [22] of Cadenet & Behrendt(No. 3).
On 27 November 2019, I delivered reasons for judgment and pronounced the orders found in Cadenet & Behrendt(No. 3). In summary, I ordered that Dr B be provided with an agreed letter of instruction, a schedule of digital images and videos, being the remaining material, and a USB copy of that material.
The orders also provided for a timetable for the parties to file and serve submissions concerning costs.
Orders sought as to costs
The father filed his written submissions in respect of costs on 11 December 2019. He sought an order that the mother pay his costs of the Further Amended Application in a Case filed 13 March 2019 on an indemnity basis.
A precise quantification of his costs was set out in [61] and [62] of his submissions as follows:
Accordingly, costs on the indemnity basis is calculated to be:
47.1. Solicitor Costs - $91,178.38;
47.2. Costs of Senior Counsel - $36,575;
47.3. Cost of Junior Counsel - $26,840
$154,593.38
If the court is not minded to make an indemnity costs order, then it ought make a Costs Order:
46.1. in the specific sum of $100,000, pursuant to Rule 19.18(1); or
46.2. on a party to party basis in accordance with the scale.
The mother filed her written submissions on 6 January 2020. In her written submissions, the mother seeks an order that “the Father pay [her] costs of and incidental to [her] Further Amended Application in a Case filed 13 March 2019”. She quantified her costs at $82,228.36, including fees paid to D Company.
In his written submissions in reply filed on 20 January 2020, the father seeks the following orders:
1. That the Mother pay the Father’s costs of an [sic] incidental to the Mother’s Further Amended Application in [sic] Case filed 27 June 2018, 27 August 2018, 13 March 2019 and Orders sought in [sic] Mother’s Case Outline of 8 October 2019 on an indemnity basis.
2. That the Mother pay the Father’s costs to [sic] the Mother’s Further Amended Minute of Orders Sought filed 30 October 2019.
It can be seen that the father appears to have changed or expanded his claim for costs in his written submissions in reply. It is regrettable that the father chose to amend the order he seeks in a responding document. The mother did not have an opportunity to respond to this claim for costs. His quantification of costs remained the same.
For the reasons which follow I have determined that the mother should pay 50% of the father’s costs of and incidental to her Further Amended Application after 10 April 2019 and up to 27 November 2019, as agreed or assessed. I will further order that any assessment shall not take place until the final determination of these proceedings, without leave of the Court.
The parties filed extensive submissions, raking over many aspects of the proceedings since February 2017. I have considered those submissions carefully. Intending no disrespect I do not consider it necessary to canvass the submissions in detail. In Matani & Matani and Ors [2017] FamCAFC 65, Thackray J said at [20]: “it is not to be expected that a judge dealing with costs arguments will conduct a post-mortem of the entire litigation.” In Greedy & Greedy [1982] FamCA 41; (1982) FLC 91-250 and Luadaka & Luadaka [1998] FamCA 1520; (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters. In my view, the question of costs can be determined by reference to the salient matters discussed below in these reasons.
The Law
The relevant principles with respect to costs are well settled, and have been discussed by the Full Court in Parke & The Estate of the Late A Parke [2016] FamCAFC 248; (2016) FLC 93-748, recently followed in Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131. The Court has a wide discretion, which is to be exercised judicially.
In proceedings to which the Family Law Act 1975 (Cth) (“the Act”) applies the starting point is that each party shall bear his or her own costs: s 117(1) of the Act. If, however, the Court is of the opinion that there are justifying circumstances the Court may make such order as to costs or security for costs as the Court considers just: s 117(2) of the Act. It is not necessary to establish extraordinary or exceptional circumstances, however there must be circumstances which, at the absolute discretion of the Court, justify a costs order: Stoian & Fiening (Costs) [2014] FamCA 944 at [19], the High Court made clear in Penfold v Penfold (1980) 144 CLR 311 at pp 315-16 that s 117(2) requires a finding of justifying circumstances before any costs order can be made.
In determining whether a costs order should be made and in what form, the Court has regard to the considerations set forth in s 117(2A), namely, 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.
It is well-settled that no one factor has priority under s 117(2A), nor must more than one factor to be satisfied; any one factor may be sufficient: Prantage & Prantage (Costs) [2014] FamCA 850 at [12]; PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 at [41]. There may be a dominant or outstanding feature that makes an order for costs appropriate: Brown and Brown (1998) FLC 92-822 per Kay J at [17]. Thus although any one factor may be sufficient, no one factor is essential.
The parties’ focussed their submissions on their financial circumstances and conduct in particular.
Financial Circumstances
Neither party claimed to be impecunious, although of itself this is not a bar to a costs order: Bhatt & Acharya (Costs) [2017] FamCAFC 71 at [20].
The father filed a financial statement on 11 December 2019. This showed living expenses of $2,389 per week. He submitted that he is unemployed, and receives an insignificant amount of interest from the balance of a partial property settlement received in October 2018. He received $1,100,000 at that time of which $660,450 remains invested (His Written Submissions filed 11 December 2019, [11]).
The mother is a General Manager of E Company. For the year ended 30 June 2018 the mother earned $386,357 gross. According to her Financial Statement filed 6 January 2020, the mother has weekly salary of $4,721. Her weekly income exceeds her weekly outgoings by $5,481 over $4,485. She owns an investment property in Suburb F with a value of at least $1,125,000. She lives in a property she owns in Suburb G with a value of at least $2,850,000. According to the mother, her assets exceed her liabilities by $4,022,301 over $2,020,429.
The mother claims the father used to earn $600,000 per annum when employed as a senior manager at H Company. There is no dispute he once held this position but he no longer does. In his financial statement filed 12 December 2019 he states he is unemployed and declares nil interest in any business
I am satisfied the mother’s financial position is stronger than that of the father.
Conduct
It is a basic principle that an order for costs is compensatory and not to be used to punish: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543, 562 – 563, 566 – 567; Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 410. In Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (“Oshlack”) at [1] Brennan CJ said “Costs are awarded to indemnify a successful party in litigation, not by way of punishment of an unsuccessful party”. In Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 at [33] the majority said “costs are awarded by way of indemnity; they are not awarded as compensation for lost earnings, much less as a reward for a litigant's success”. In Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) referred to costs in the conventional sense. This position has been followed in the Full Court: B v J [2006] FamCA 256; (2006) FLC 93-259 at 80,403-404. Thus, putting aside for the moment the question of indemnity costs, which is evaluated according to some different considerations, concepts of punishment or reward should be avoided in considering the factors in s 117(2A).
However, s 117(2A)(c) makes the conduct of the parties a necessary consideration, being conduct “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”.
On the role of conduct in the exercise a discretion to order costs, in Oshlack, McHugh J at [69] referred to “some sort of misconduct” which disentitles a party to the beneficial exercise of the discretion, citing the formulation of Devlin J in Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874. McHugh J explained:
“Misconduct” in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; … (footnotes omitted)
More recently in Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 (“Sangare”) at [25] the High Court referred to unreasonable delay or a want of the cooperation required of litigants to ensure the "just resolution of the real issues in civil proceedings with minimum delay and expense", citing Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 210 [90]; [2009] HCA 27 and Supreme Court Rules 1987 (NT), r 1.10.
The decisions in Oshlack and Sangare, while relevant, dealt with litigation in jurisdictions where generally “costs follow the event” (Oshlack at [67]; Sangare at [166]). However, it must be remembered that, when the conduct of the parties is being examined, the position regarding costs in this Court differs from those jurisdictions where costs follow the event. Recently in Paysen & Laukien [2020] FamCAFC 101 the Full Court cited Sangare with apparent approval but said at [41]:
It bears emphasis that in this jurisdiction, s 117(2A)(c) of the Act prescribes that conduct be considered against the background that s 117(1) directs the starting position that costs do not follow the event and usually each party to proceedings bears his or her own costs.
Nonetheless, Sangare makes clear that not only delay and expense but the relevant Court rules should be examined by the Court, when exercising its discretion on costs, against the general circumstances of the case. In this Court, Rule 1.04 of the Family Law Rules 2004 (Cth) (“the Rules”) specifies a “main purpose” of the Rules, which is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. The Court is to apply the Rules to promote and achieve the main purpose: Rules 1.06 and 1.07. Rule 1.08 of the Rules imposes an obligation on, amongst others, the parties to promote and achieve the main purpose of the Rules, including readiness for court events, assisting the just, timely and cost effective disposal of cases, and being satisfied there is a reasonable basis for alleging, denying or not admitting a fact.
The submissions of each party concentrated extensively on the conduct of the other. I am satisfied that it is only necessary to refer to the following aspects of conduct.
As explained above, the genesis of the mother’s application concerning expert evidence lay in her allegation, made to Dr B prior to his report of May 2018, that she has copied a large volume of material indicating that over a period of time extending back to Mr Behrendt’s first marriage, he was watching a range of fetishistic pornography (S&M bondage, fisting etc.)
In Cadenet & Behrendt(No. 3) at [38] – [39] I made the following findings:
I accept the father’s submission that the mother has not demonstrated, at an interlocutory stage, that any images of the type identified by Dr B as fetishistic pornography were ever viewed in public places by the father whilst the child was in the father’s care. I am satisfied that the mother has been unable to point to evidence which would have justified her assertions to Dr B in May 2018 that she could correlate the viewing of fetishistic pornography by the father at times when he was in public and supervising the child, nor at any date thereafter. Moreover, the concerns said to underlie her present Application sit in some tension with her agreement in February 2017 for the child to spend unsupervised time with the father.
I am satisfied the mother’s approach to presentation of the evidence upon which she relied for her allegations, first made to Dr B and as presented in the first schedules, involved considerable exaggeration and some indifference to the accuracy of what she alleged, particularly since she now agrees images of Ms C are irrelevant. Significant Court time was wasted before the mother truncated the amount of material said to be of concern, and the remaining material represents a marked reduction in the volume of images the mother initially relied upon.
Thus the mother had made serious allegations to Dr B about the father and pornography before May 2018, without demonstrating an adequate foundation at that time. After that time, in my view she bore the onus of showing the allegations had substance by reference to clearly identified evidence, at least in support of her Further Amended Application. As became clear, she did not take adequate steps to identify such evidence clearly until 29 October 2019, because of duplications and irrelevancies.
The mother submitted that she attempted through her lawyers to add a “Description” column to the April schedules (Her Written Submissions filed 6 January 2020, [26]). Because the father did not consent, the mother contends that delay in producing schedules in the form ultimately helpful to the Court, she argues delay was occasioned “wholly and solely by the father”. I do not accept this argument. The additional “Description” column she proposed for the original schedules would have done little to address the significant problem of duplication and irrelevant material.
In my view, taking account of the extensive correspondence relied upon by both parties, between 10 April 2019 and 11 October 2019 no, or inadequate, attention, was directed by the mother to a sensible categorisation of the material so as to make clear to the other parties and the Court exactly what material she relied upon. I do not accept that the father, after 10 April 2019, was under some obligation to help identify and refine the evidence upon which the mother based her serious allegations against him, already made by May 2018, about a year earlier. Although not obliged to do so, the father did provide sworn evidence undertaking the task of identifying and characterising the images and digital movies which he said were potentially relevant or not relevant. This, according to his submissions, which I accept, was a time consuming and costly exercise. The mother should have been the one to undertake such a task in the first instance, to assist the Court and the father to understand the basis of her contentions.
The father made submissions about the volume of material relied upon by the mother in support of her application and its eventual reduction by about 90% (His Written Submissions filed on 11 December 2019, [21]. I accept these submissions are broadly correct.
The mother included in her original tally of impugned images a number which she acknowledged were stored on a Computer device which had been locked in storage, and not accessed, since 2009. In Cadenet & Behrendt (No. 2), I held the images derived from that device should be excluded from consideration as irrelevant. The mother conceded on 11 October 2019, that none of the material downloaded from the computer device could fall within the concern of Dr B as possibly being viewed in public places when the child was in the care of the father. On her own evidence, the material was not accessed by the mother until some two months after she had spoken to Dr B. It thus could not have formed the basis of anything she alleged to Dr B or his views expressed in his report of May 2018.
The exclusion of the material reduced the number of impugned images and movies from 5,096 to 603, a reduction of 4,493 or 88%, according to the father (His Written Submissions filed 11 December 2019, [35]). The mother did not dispute these figures.
On 29 October 2019, during the hearing the mother accepted that images of the father’s fiancé were also irrelevant, reducing the remaining images from 603 to 561.
I am satisfied that the material and the images of the father’s fiancé should never have been put forward by the mother in support of her application. I am also satisfied that Court time was wasted on 11 October 2019 and 29 October 2019, by the inclusion of such a large volume of irrelevant material.
None of the mother’s submissions persuade me that she took a sufficiently responsible and careful approach to marshalling the evidence to support her contentions that a vast body of material existed showing the father had an addiction to pornographic images, fetishistic or otherwise. Furthermore, I found she at no point established the father viewed inappropriate images when he was in public and supervising the child.
In my view the mother’s exaggeration to Dr B, her indifference to the accuracy of her allegations and her initial reliance on an unjustifiable volume of material, resulted in a waste of court time.
I am satisfied the conduct of the mother referred in [43] to [55] did not promote the main purpose of the rules, caused some delay and unnecessary expense. It justifies an order for costs in favour of the father.
Whether a party has been wholly unsuccessful
Both parties devoted considerable time in their submissions to establishing the extent to which they had succeeded and the other party had failed. I do not consider it necessary to rehearse these arguments. They simply demonstrate at great length that neither party was “wholly” unsuccessful, and each party enjoyed a degree of success and failure. This is self-evident from the judgment in Cadenet & Behrendt(No. 3). However, two further points should be made.
The father seemed to argue that the mother had been wholly unsuccessful in her application. I reject this argument. The result of the somewhat tortuous path of the mother’s application about the alleged pornographic material to finality was that the father was unable to convince me that the material, remaining after the exclusion of duplications and irrelevancies, was irrelevant. Orders were made which were consistent with the orders sought by the mother, in that the remaining material was ordered to be submitted to Dr B. To this extent the father’s argument made under s 138 of the Evidence Act 1995 (Cth) were unsuccessful.
It is relevant to note here that Dr B’s issued a second, interim, report on 5 February 2020, based upon the remaining material submitted to him in accordance with the orders made in Cadenet & Behrendt(No. 3). He recommended 2 further reports be obtained and also further orders made on 1 April 2020 appointing a further expert.
The mother made the surprising submission, which I reject, that I dismissed the father’s application for additional time with the child (Her Written Submissions filed 6 January 2020, [10]). This is plainly incorrect. In Cadenet & Behrendt(No. 3) at [8] I said “These reasons for judgment do not deal with that part of the father’s response seeking orders for the child to spend more time with him.” This application of the father, contained in his Response, remains to be determined.
This factor does not justify an order for costs
Indemnity Costs
The award of indemnity costs in this Court has regularly been called a significant departure from the normal standard. In Harris & Dewell and Anor(No.2) [2018] FamCAFC 180; (2018) FLC 93-863 the Full Court said at [23] – [26]:
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.
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”.
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.”
Of course, in proceedings under the Act, an overriding “usual rule” is prescribed by s 117(1), namely that each party bears their own costs. The degree of departure between that “usual rule” and a result where one party bears the totality of the other party’s costs can be seen to be all the greater. [original emphasis and footnotes omitted]
In Prantage & Prantage [2013] FamCAFC 105; (2013) FLC 93-544 at [152] Murphy J pointed out that reference to “a great departure” is not a fetter on this Court’s discretion to award costs or indemnity costs if justice so requires it, citing Oshlack at [134], “Rather it recognises that an order for indemnity costs, has a particular context in this jurisdiction”.
While I am satisfied there has been conduct of the mother justifying an order for costs in the father’s favour, I am not persuaded her conduct justifies a great departure from the normal standard so as to support an order for indemnity costs, particularly since both parties had some success and failure.
Conclusion
In light of the above discussion I find that a costs order should be made against the mother. Her stronger financial position and conduct described above at [43] – [57] satisfy me this is appropriate. In light of the fact both parties have had some success and failure in the applications with which this judgment is concerned, in my discretion, I do not consider it appropriate to award any immediate lump sum in favour of the father. Nor do I think it is in the interests of the parties or their children for any process of assessment to be undertaken at this stage of the proceedings. Experience of this litigation so far suggests such a process will be costly, time consuming and will distract the parties from a proper focus on progressing the proceedings to finality. I will order the mother to pay 50% of the father’s costs of and incidental to the mother’s Further Amended Application after 10 April 2019 and up to 27 November 2019, as agreed or assessed, and in the event of assessment, no assessment is to take place prior to the final determination of the proceedings, without leave of the Court.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 15 May 2020
Associate:
Date: 15 May 2020
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