Bondelmonte and Bondelmonte

[2018] FamCA 186

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE [2018] FamCA 186

FAMILY LAW – COSTS

APPLICANT: Ms LL Bondelmonte

RESPONDENT: Ms Bondelmonte

FILE NUMBER: SYC 4839 of 2011

DATE DELIVERED: 15 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 15 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Barnett

SOLICITOR FOR THE APPLICANT: Braddon Marx Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. I dismiss Ms LL Bondelmonte’s Application in a Case filed on 14 December 2017

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 Bondelmonte & Bondelmonte 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 4839  of 2011

Ms LL Bondelmonte

Applicant

And

Ms Bondelmonte

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms LL Bondelmonte has filed an Application in a Case on 14 December 2017.  In that application, she seeks an order that the first respondent wife pay her costs in respect of the Amended Application in a Case filed on 14 November 2016 as agreed or assessed which was the subject of a Judgment and Reasons for Judgment dated 15 November 2017, after a hearing on 27 October 2017.  The application for costs is supported by an affidavit of her solicitor filed on 14 December 2017. 

2. In the Amended Application in a Case, which was filed on 14 November 2017, Ms LL Bondelmonte sought a number of orders.  Her primary application together with her husband, was that an order that was made by me on 4 July 2016 be set aside so as to prevent the wife from inspecting all documents produced to this Court from the Federal Court.

3. In the alternative, Ms LL Bondelmonte along with her husband jointly sought to restrict the wife’s access to the following documents: 

   3.1.all affidavits

   3.2.all genuine steps statements

   3.3.all indexes to the parties’ tender books

   3.4.all objections to evidence

   3.5.all narratives, statements of facts and contentions and responses to narratives, statements of facts and contentions

   3.6.all notices to produce

   3.7.all subpoenas

   3.8.all written submissions and outlines of submissions

   3.9.all diagrams and notes. 

4. In the further alternative, Ms LL Bondelmonte jointly with her husband sought an order that the wife be refused access to 19 specific documents.

5. Ms LL Bondelmonte’s application for an order which would totally set aside the orders of 4 July 2016 was based on a number of arguments which included:

   5.1.failure to comply with the Family Law Rules

   5.2.lack of procedural fairness

   5.3.irrelevance and fishing

   5.4.Federal Court confidentiality orders in respect of certain documents

   5.5.breach of the Harman obligation

6. Ms LL Bondelmonte was partly successful in arguing that certain documents were the subject of a Federal Court confidentiality order and that five particular affidavits were irrelevant.  Apart from that, all other arguments made by Ms LL Bondelmonte were wholly unsuccessful, and her primary application was dismissed.  In relation to the affidavits that were subject to a successful challenge on the basis of relevance, my reasons of 15 November 2017 at paragraphs 38 to 40 set out the basis upon which Ms LL Bondelmonte was successful in relation to that part of her application.

7. For the sake of completeness, I record that by way of application in a case filed on 27 November 2017, Ms LL Bondelmonte sought that the limited order that I had made in her favour on 15 November 2017 be expanded pursuant to the slip rule.  Her application under the slip rule was wholly unsuccessful.  In those proceedings, Ms LL Bondelmonte was successful in having certain other documents excluded from inspection by the wife but only on the basis that Ms LL Bondelmonte had failed in the original hearing to inform the Court of the existence of an additional and different Federal Court suppression order to that referred to in my reasons of 15 November 2017. 

8. Section 117(1) of the Family Law Act (“the Act”) is in the following terms:

   Subject to subsection (2), …each party to proceedings under this Act shall bear his or her own costs.

9. In oral submissions, counsel for applicant abandoned her written submission that her client was not a party to these proceedings. I proceed in this application on the basis that Ms LL Bondelmonte is a party to the proceedings and that the provisions of s 117(1) of the Act apply in this case. Ms LL Bondelmonte seeks a costs order pursuant to the provisions of s 117(2) of the Act arguing that the costs order she seeks is one that is just and that there are circumstances justifying the Court making such an order. In considering what order, if any, should be made under subsection (2), the Court has to have regard to those circumstances that are set out in s 117(2A) of the Act.

10. I know nothing about the financial circumstances of either Ms LL Bondelmonte or the wife in the context of this application apart from the fact that the wife is not currently expending money on having lawyers appear for her in my courtroom. 

11. I proceed on the basis, because I haven’t been told otherwise, that neither party is in receipt of the assistance of any legal aid.

12. I have already referred to how Ms LL Bondelmonte conducted these proceedings by making applications in the alternative. But nothing turns on that.

13. There is no suggestion by either party that either of the parties has incurred costs which were necessitated by a failure of a party to comply with previous orders of the Court.

14. As I have already said, the wife has not been wholly unsuccessful against Ms LL Bondelmonte or anywhere near it.

15. When considering any offer that has been made in writing by one party to another party, I turn to annexure C of Ms LL Bondelmonte’s solicitor’s affidavit which was filed in support of this costs application.  That’s a letter dated 22 May 2017 written on behalf of Ms LL Bondelmonte and her husband to the wife in person.  At page 2 of that letter, the following assertions appear:

    You and your former solicitors have been aware that our client’s submission that the Family Court does not have jurisdiction or the power to release an undertaking (actual or implied) given to the Federal Court of Australia since at least 19 December ’16 when we served our client’s written submissions;  nevertheless, you continue to oppose the application by our clients to set aside the 4 July orders.

    On 25 January ’17, we provided your former solicitors with a list of authorities that support our proposition at 3 above regarding the Court’s inability to release a Federal Court undertaking, yet you continue to oppose our client’s application.

16. A little later in the letter, Ms LL Bondelmonte, through her solicitors, writes to the wife:

    Whilst our clients are confident that they will succeed on their application to set aside the 4 July orders and that an order for costs in their favour will follow, they are prepared to resolve their application on the following terms:  (1) by consent, the 4 July orders are set aside and the application is otherwise dismissed;  (2) each party pay their own costs of the application and;  (3) a consent order in the form attached is filed with the court. 

17. A copy of that proposed consent order is attached to the affidavit and it provides that paragraphs 4 and 7 of the 4 July 2016 orders be set aside and further, that the documents that had been delivered by the Federal Court to the Family Court be returned. 

18. That letter of offer makes plainly clear what Ms LL Bondelmonte’s primary application was, and she pursued that application unsuccessfully at the hearing before me on 27 October 2017.

19. Finally, as mentioned in submissions, I am able to take into account such other matters as the court considers relevant.  Counsel for Ms LL Bondelmonte relies upon two cases. Firstly, the Full Court decision of Grefield & Grefield and Anor (costs) [2016] FamCAFC 30, where at paragraph 29, the Full Court record that the trial judge took into account as a consideration in making a costs order in the favour of a sibling of one of the parties that she had been wholly successful in the proceedings and that she was a third party brought into the proceedings on the application of the wife and, as such, was in the position of a litigant in the civil courts who will ordinarily have had her costs.

20. Secondly, counsel for Ms LL Bondelmonte also relies upon the Full Court decision of Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131. In that case, although the wife was successful on appeal and had the matter remitted for hearing, the Full Court made a costs order against the wife in favour of the second to sixth respondents. In doing so, at paragraph 50, they said:

    A consequence of our orders in the property appeal is that the second to sixth respondents are third parties who can be seen as strangers to the matrimonial litigation between the parties.  The wife has been wholly unsuccessful against the third parties.  In our view, the wife’s lack of success against them, particularly as her arguments in respect of the “alter-ego” issues were not raised in the trial and emerged for the first time in the appeal, justifies an order for costs in their favour.

21. I accept that it is a relevant consideration that Ms LL Bondelmonte is not a party to the wife’s primary application under section 79A of the Act to which these interlocutory proceedings relate. However, in both the cases upon which counsel for Ms LL Bondelmonte relies, it is not just that those parties, who succeeded in obtaining a costs order, were “third parties” but also that the party to the marriage had been wholly unsuccessful against them. That is not the case in the facts of this matter.

22. After having considered all the matters that I have referred to pursuant to s 117(2A) of the Act, I find it is not just to make a costs order in favour of Ms LL Bondelmonte in these proceedings and accordingly, I dismiss Ms LL Bondelmonte’s application for costs filed on 14 December 2017.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 15 March 2018.

Associate: 

Date:  27.3.18