Bondelmonte and Bondelmonte (No 2)

[2017] FamCA 925

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE (NO 2) [2017] FamCA 925

FAMILY LAW – COSTS – Where the respondent is the brother of the husband in the proceedings and uncle of the parties’ three children and filed an application that he be appointed case guardian for the two elder children – Where the respondent was wholly unsuccessful in that application – Where the wife seeks an order that the respondent pay her costs of and incidental to that application on an indemnity basis or in the alternative on a party/party basis – Where the respondent opposes any costs order being made – Where the respondent concedes that his financial position is such that he would be able to pay an indemnity costs order in the sum sought by the wife – Where the wife is entitled to a costs order – Where indemnity costs are not awarded notwithstanding the exceptional nature of the respondent’s application, the disparity of the parties’ financial positions and the unmeritorious nature of the respondent’s application – Where the parties agree that where a costs order is to be made but it is not an order for indemnity costs the order should be for party/party costs as agreed or assessed – Where the respondent is to pay the wife’s costs of this costs application

Family Law Act 1975 (Cth)

Bant & Clayton (Costs) (2016) 56 Fam LR 31
D & D (Costs) (No. 2) (2010) FLC 93-435

APPLICANT: Ms Bondelmonte

RESPONDENT: Mr DD Bondelmonte

FILE NUMBER: SYC 4839 of 2011

DATE DELIVERED: 15 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 6 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Apelbaume

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. Mr DD Bondelmonte pay the wife costs in relation to the application originally filed by him on 27 October 2016 on a party/party basis as agreed or assessed.

2. Mr DD Bondelmonte pay the wife the costs of this application on a party/party basis as agreed or assessed.

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 (No 2) 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

FILE NUMBER: SYC 4839  of 2011

Ms Bondelmonte

Applicant

And

Mr DD Bondelmonte

Respondent

REASONS FOR JUDGMENT

1. Mr DD Bondelmonte, the brother of the husband in these proceedings and the paternal uncle of the parties’ three children, by way of Application originally filed 27 October 2016, and subsequently amended by Amended Application in a Case filed on 19 December 2016 applied for an order that he be appointed as case guardian for the two elder children. In the event that he was successful, he applied for an order that the two elder children intervene in their own right in the proceedings. Mr DD Bondelmonte also foreshadowed an application for the discharge of the order appointing the Independent Children's Lawyer and an application for a views report only in relation to the elder children.

2. The matter was heard on 19 December 2016. On 22 December 2016 Mr DD Bondelmonte’s application was dismissed for reasons given on that day.

3. On 18 January 2017 the wife filed an Application seeking an order that Mr DD Bondelmonte pay her costs of and incidental to Mr DD Bondelmonte’s application assessed on an indemnity basis in the sum of $7,463.50 or in the alternative on a party/party basis as agreed or failing agreement, as assessed. In relation to the fees for the costs hearing, counsel for the wife only seeks 50 per cent of his appearance on 6 September as counsel also appeared on a direct brief in the parenting proceedings. The wife also sought costs in respect of this application. The wife relied upon an affidavit filed 18 January 2017.

4. Mr DD Bondelmonte seeks the following orders (Exhibit 31):

   1.    That the Application in a Case filed by the Wife on 18 January 2017 be dismissed.

   2.    That in the event the relief sought at Order 1 is declined, and only in such event, that the First Respondent pay the Wife’s costs of and incidental to his Application in a Case filed 27 October 2016 (as amended on 19 December 2016) on a party/party basis as assessed or agreed.

   3.    That in the event the relief sought at Orders 1 and 2 is declined, and only in such event, that the quantum of costs, whether on a party/party basis or on an indemnity basis, be as agreed or as assessed.

   4.    That any order for payment of costs by the First Respondent to the Wife be stayed until the determination of the First Respondent’s appeal filed 19 January 2017 in proceedings EA 17 of 2017.

   5.    That in the event that the appeal is upheld, any order for payment of costs by the First Respondent to the Wife is discharged.

5. Mr DD Bondelmonte apparently filed a Notice of Appeal against the decision of 22 December 2016 on 19 January 2017. Order 4 sought that any cost order be stayed pending the outcome of his appeal.

6. Mr DD Bondelmonte did not in the costs hearing tender the Notice of Appeal. It is not clear as to whether he also sought leave to appeal. Mr DD Bondelmonte has not demonstrated why it might be thought he would have reasonable prospects of success in the appeal. I have been informed the appeal has now been withdrawn.

7. Section 117(1) Family Law Act 1975 (Cth) (“the Act”) provides that each party to proceedings under this Act shall bear his or her own costs. Section 117(2) provides that if the court is of the opinion that there are circumstances that justify doing so, the court may make such order as to costs as the court considers just.

8. In considering what order (if any) should be made, the court is required to have regard to those considerations set out in s 117(2A) of the Act.

9. In relation to the financial circumstances of each of the parties, the lawyer for Mr DD Bondelmonte submitted that given there is no evidence before the court of the financial circumstances of either party, then it did not favour either party. I do not accept that submission.

10. The wife describes herself in her affidavit as performing “home duties” from which I infer she is not in paid employment. Otherwise I do not have any detail about her financial circumstances.

11. At [19] of my reasons of 22 December 2016 I inferred that Mr DD Bondelmonte was a person of some means. He did not provide his residential address in Australia in the material that he filed but he provided an address at EE Street Sydney as his business address. Exhibit 20 indicated that it was likely he was currently living in a house at Suburb G. Mr DD Bondelmonte said in late September 2016 he had travelled to the UK for business and on the way he spent a couple of days in the US with the husband and the elder children.

12. Mr DD Bondelmonte conceded there was evidence in his affidavit that he had sent his children to a private school in the Eastern suburbs.

13. The lawyer for Mr DD Bondelmonte conceded that his financial position was such that he would be able to pay an indemnity costs order in the sum sought by the wife if the court found that that was a just order.

14. Neither party is assisted by a grant of legal aid.

15. There was no merit in Mr DD Bondelmonte’s foreshadowed application that the order that had appointed the Independent Children's Lawyer in this case be discharged or that a standalone wishes report be prepared for the elder children.

16. At [21] of my Reasons of 22 December 2016, I comment on the fact that the applicant failed to provide evidence about relevant matters which were within his knowledge. At [28] and [29] of the Reasons, I detail information that was not disclosed by the applicant in his case, including the business relationship between he and the husband and the fact that counsel for the applicant appearing at the hearing had previously appeared for the husband in the High Court.

17. Mr DD Bondelmonte complained about the conduct of the Independent Children's Lawyer. I found at [36] there was no basis on the evidence to found an assertion that the Independent Children's Lawyer had not attempted to ensure that the elder children’s views were fully put before the court.

18. Most significantly, Mr DD Bondelmonte was wholly unsuccessful in establishing fundamental requirements under the rules which are pre-conditions for the appointment of a case guardian for a child. Mr DD Bondelmonte did not establish that either of the children needed a case guardian.

19. No other s 117(2A) consideration is relevant.

20. The wife is entitled to a costs order.

Indemnity costs?

1. In D & D (Costs) (No. 2) (2010) FLC 93-435 the Full Court says:

   27. The Court in Limousin (supra) also referred to the judgment of Shephard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 upon which learned Counsel for the Wife relies in support of the present application. Shephard J said in Colgate-Palmolive (supra) (at 256):

   “2. The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis …

   …

   28. Reference was made to the later decision of the Full Court of Yunghanns v Yunghanns (2000) FLC 93‑029 in which is was said (at 87,471, par 31):

   “It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought.”

   29. As was the case in Limousin (supra), the following passage from the Judgment of Shephard J in Colgate-Palmolive (supra) is instructive (at 257):

   “… it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records).”

   (Emphasis added)

2. In Bant & Clayton (Costs) (2016) 56 Fam LR 31 the Full Court referred to these passages and concluded that to depart from the ordinary rule of calculating costs on a party/party basis, exceptional circumstances needed to be demonstrated and even the existence of exceptional circumstances did not oblige a court to make an order for indemnity costs.

3. The lawyer for Mr DD Bondelmonte acknowledged that it was an exceptional case where a third party made an application on behalf of children including to discharge their court appointed Independent Children's Lawyer so that that third party could directly represent their interests.

4. Notwithstanding the exceptional nature of the application, the disparity in the financial position of the parties and the unmeritorious nature of the application in respect of which the applicant has been wholly unsuccessful, this is not a case in which I would award indemnity costs.

Party/Party Costs

1. It seems that in circumstances where a costs order is to be made but it is not an order for indemnity costs, both parties agree that the order should be for party/party costs as agreed or assessed.

Costs of this Application

1. Mr DD Bondelmonte’s primary position was that no costs order be made against him and in that regard he has been wholly unsuccessful.

2. Mr DD Bondelmonte has been successful in opposing an indemnity costs order.

3. Exhibit 32 is a letter dated 22 August 2017 from Mr DD Bondelmonte’s lawyers to the wife’s lawyers making an offer of settlement of this application in the following terms: 

   We refer to your Costs Application listed before the Court on 7 September 2017.

   We are instructed that our client is prepared to resolve the matter on a final basis as follows:

   1.    That our client pay to you the sum of $4,000 by way of costs, with such payment to be deferred pending determination of the Appeal.

   2.    That your Application filed on 18 January 2017 be dismissed.

   We confirm that our client’s offer set out above shall remain open to you for acceptance for a period of 14 days.

4. It can be seen that the offer, which was not made until 22 August 2017 was conditional upon payment being deferred pending determination of the appeal. As indicated above, the appeal has subsequently been withdrawn. Accordingly I place little weight on this conditional written offer.

5. The wife is entitled to a costs order in relation to her successful alternate application for party/party costs which was opposed by Mr DD Bondelmonte. That order will be in an amount that is agreed or assessed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 November 2017.

Associate: 

Date:  15 November 2017