Bento and Bento (No. 2)

[2007] FamCA 1694

FAMILY COURT OF AUSTRALIA

BENTO & BENTO (NO. 2) [2007] FamCA 1694

FAMILY LAW – COSTS – Wife’s application for costs – Lengthy proceedings between the parties over five years – Consideration of factors under s117(2A) of the Family Law Act 1975 – s117(2A)(c) particularly relevant – Matter was complex only because of the manner in which the husband conducted the case – Trial proceedings exceeded proper length by some seven days – ORDER: the husband pay an amount representing seven-thirteenths of the wife’s total costs

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Ms Bento

RESPONDENT: Mr Bento

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 3452 of 2002

DATE DELIVERED: 27 July 2007

PLACE DELIVERED: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 27 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Clelands

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Winter

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Orders

1. That the husband pay 54 % of the wife's costs (including the wife's costs incurred in the pursuit of interlocutory proceedings from 27 October 2005) fixed in the sum of TWENTY ONE THOUSAND TWO HUNDRED AND FIFTY DOLLARS ($21,250) and that such costs be paid from the husband’s share of the net proceeds of sale of the former matrimonial home property at …, C.

2. By consent, sub-paragraph 3.2 of the Orders made herein on 30 May 2007 be amended to substitute the years 2007-2008 for the years 2008-2009.

IT IS NOTED that publication of this judgment under the pseudonym Bento & Bento is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3452 of 2002

MS BENTO

Applicant

And

MR BENTO

Respondent

REASONS FOR JUDGMENT

1. I have before me today the wife's Form 2 application for costs, filed on 25 June 2007.  That application is supported by an affidavit of her solicitor filed on the same day which annexes material relevant to my determination on this issue.

2. The application for costs stems from my Judgment in these proceedings, delivered on 30 May 2007.  That Judgment followed lengthy proceedings between the parties in this Court.  The proceedings were first commenced five years ago, on 1 August 2002.  Those initial proceedings did result in Orders being made on 7 February 2003 but they were then reactivated again. Thus there is a long and painful history between the parties in these proceedings.  The culmination was a trial before me, which lasted some 13 days spread over three separate periods of time; in June 2006, December 2006 and for final submissions on 9 March 2007.

3. In making any determination as to whether or not there ought to be an order for costs, I need to have regard to the provisions of section 117 of the Act, particularly subparagraph (2A).

4. The first of the subsections requires me to consider the financial circumstances of each of the parties to the proceedings.  I have relatively intimate knowledge of the parties' respective financial circumstances, as my Judgment was as to matters of property settlement as well as on children's issues.  The parties can expect very modest returns by way of final outcome, particularly in respect of the wife after she has accommodated the substantial costs incurred by her in the conduct of these proceedings, totalling some $140,000 approximately.

5. The husband's financial situation will also be particularly modest given the proportion of property entitlement that in my Judgment he is due to receive.  At the date of the trial proceedings he was unemployed and I am informed from the bar table today that he now has only casual employment as a storeman.  Thus clearly he does not enjoy a healthy income.  He has retained his SAPOL superannuation benefits pursuant to my Judgment and largely untouched, but of course it will be a few years yet before he has an entitlement to receive same.  Thus, in my view, the parties’ respective financial circumstances do not lead me to a clear conclusion on the application for costs.

6. Subparagraph (b) is not relevant, in that neither party was in receipt of Legal Aid, but I note that each of them has agreed to pay $5,000 towards the costs of the Independent Children's Lawyer who is funded by the Legal Services Commission.  Those amounts are to be paid from their respective shares of the property sale.

7. Subparagraph (c) is particularly relevant and it requires me to consider 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, productions of documents and similar matters.  This is the area in which the husband encounters the greater difficulty on this application for costs.

8. Annexure BSF3 to the wife's solicitor's affidavit filed on 25 June 2006 details a history of attendances before the Court and the costs that were incurred as a result.  Many of those hearings prior to the commencement of the trial related to a number of preliminary matters raised by the husband.  As a consequence of the husband's identification of a possible 20 witnesses he intended to call during the trial, the trial was designated as complex and needing to be Judge managed.  He also issued a number of subpoenas.  Not only did that require the wife and her advisers to deal with those subpoena matters on a number of interlocutory occasions, it also required my attention at the commencement of and during the trial.  The ultimate consequence was that the husband had some regard to some of the subpoenaed materials during the trial and in particular in his cross‑examination of the wife, but in large part he placed no reliance upon the materials that he had subpoenaed.

9. Further, he ended up calling only one witness of his originally indicated 20 or so and thus a good deal of the pre-trial time occupied was not demonstrated as having been necessary to achieve a final resolution of the trial proceedings.  In short, it was a waste of time and effort and hence cost.

10. Subsection (c) though is also relevant to the manner in which the husband conducted the trial proceedings.  I am acutely aware of how difficult it is for a litigant in person to conduct proceedings in this Court.  It is a craft that takes even lawyers some time to learn and thus it is understandable in a lay sense why it is that he was a little at sea at times and a little uncertain as to the manner in which he should conduct his case.

11. This morning from the bar table the husband admitted that he was lost in the process and during the course of the trial proceedings was literally finding his way.  That though is not the fault of the wife and is not a cost that she should bear.  This particular section makes it particularly plain that the represented party who conducts their affairs in an efficient and timely fashion should not bear the financial consequences of an inexperienced, lengthy, frequently irrelevant and often clumsy presentation of the case by the litigant in person, and in this case the husband.  Thus, in my view, it is a particularly relevant factor when I make my final determination on costs.

12. Subsection (d) in my view is not relevant. 

13. Subsection (e) though does require my consideration.  Pursuant to that subsection, I need to consider whether any party to the proceedings has been wholly unsuccessful in the proceedings.  Ms Lewis, for the wife, pointed out that the wife had abided the recommendations of Ms Hewett throughout the proceedings, including the period prior to the commencement of the trial proceedings.  She compared that with the husband's position which started from a position of an absolute - namely, that the children should live with him and spend some limited time with the mother - to a position of considerable fluidity by the conclusion of the trial proceedings, where his greatest concession was a week and week about arrangement; but, nonetheless, in his final proposals to me he indicated that the children should spend the predominance of their time with him.  He was also concerned as to the need for supervision of the wife's time with the children and in fact again raised that very issue before me this morning.

14. However, it cannot be said that either party in my view was wholly unsuccessful in the child-related proceedings.  There is a distribution of the children's time between each of their parents.

15. I have read the matters that the husband has put forward in his affidavit of 25 July 2007 and had regard to those matters in framing my final determination on this costs application.  In my view the husband attained some considerable success in his conduct of the children's issues in these proceedings.  It is rather more the manner in which he conducted the trial that is the issue in arriving at my conclusion.

16. The issue of property though is another matter.  On what I believe is a reasonable estimate, about five days of the 13 days of the trial were concentrated on property issues.  Some three days of that trial though were devoted to the husband's relentless cross‑examination of the wife about her abuse of poker machines and the wastage of marital funds on those machines.  Whilst he makes it quite clear this morning that this is still a burning issue for him, he was unable during the trial of the proceedings to elicit any evidence that supported his contention, save as to a relatively minor amount in the order of about $1,200 to $1,500 and thus it could be said that some three days of the trial were wasted on a fruitless exercise.

17. Whilst the husband was not wholly unsuccessful in relation to the issue of the property matters before the Court, he was largely unsuccessful in the pursuit of issues that he perceived to be relevant but which, in the ultimate conclusion, did not prove to be so.

18. Subsection (f) is not relevant and nor are there any additional matters that I believe require my consideration pursuant to subsection (g).

19. There ought to be an order for costs against the husband.  The issue is the quantum of that order.

20. In my considerable experience now in the jurisdiction, including over nine years as a Judge, this matter need not have been as complex as the husband made it.  It was a matter which in my professional experience, ought to have been resolved in something like five or six days.  It was complex only because of the manner in which the husband conducted the case.  As I said, I do not blame him for it.  It is a very difficult exercise to conduct proceedings in any Court.

21. However, the consequences of his lack of experience and his inability to focus on relevant and pertinent issues are not matters that should be sheeted home to the wife in terms of cost.  She should not have to pay for the case preparation that he undertook on the run and the frequently unguided fishing expeditions and cross‑examination undertaken by him.

22. It is, therefore, my view that the trial of the proceedings exceeded the proper length by some seven days, and it is therefore my order that the husband pay an amount representing seven‑thirteenths of the wife’s total costs.

23. The husband has agreed to accept the wife’s solicitor’s calculations of her costs annexed to his affidavit filed 25 June 2007 rather than go to taxation.  Thus his liability is as to seven-thirteenths (or 54%) of $39,352.00, being a figure of $21,250.  All are agreed that payment of those costs is to come from the husband’s share of the net proceeds of sale of the property at C.

I certify that the preceding twenty-three [23] paragraphs are a true copy of the Ex tempore Reasons of the Honourable Justice Burr

Associate

Date:  27 July 2007