Bondelmonte & Bondelmonte (Costs)

[2016] FamCAFC 113

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE (COSTS) [2016] FamCAFC 113

FAMILY LAW – COSTS – Where the appellant father was wholly unsuccessful on appeal – Where the proceedings were necessitated by the failure of the father to comply with previous orders – Where stance adopted by the father in the appeal can properly be seen as wilful disregard of clearly established law – Where it is appropriate that the father pay the mother’s costs of the appeal on an indemnity basis

Family Law Rules 2004 (Cth): r 19.08(3)

Bondelmonte & Bondelmonte [2016] FamCAFC 48
Kohan and Kohan (1993) FLC 92-340
Prantage & Prantage (2013) FLC 93-544

APPELLANT: Mr Bondelmonte

RESPONDENT: Ms Bondelmonte

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 4839 of 2011

APPEAL NUMBER: EA 28 of 2016

DATE DELIVERED: 30 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan, Aldridge & Le Poer Trench JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 March 2016

LOWER COURT MNC: [2016] FamCA 138

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Richardson SC

SOLICITOR FOR THE APPELLANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Harper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That the appellant pay the respondent’s costs of and in relation to the appeal in the amount of $14,425 within twenty eight (28) days of the making of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bondelmonte & Bondelmonte (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 28 of 2016
File Number: SYC 4839 of 2011

Mr Bondelmonte

Appellant

And

Ms Bondelmonte

Respondent

REASONS FOR JUDGMENT

Ryan and Aldridge JJ

1. On 8 April 2016 the Full Court made orders dismissing the father’s appeal (Bondelmonte & Bondelmonte [2016] FamCAFC 48) against orders made by Watts J on 8 March 2016 which require him to return the parties’ two sons to Australia and a number of other orders which address the consequences of that order.

2. At the conclusion of the appeal and so as to obviate the necessity for a further appearance with all its associated costs, we invited the parties to address us in relation to the costs of the appeal. 

3. The mother, who successfully resisted the appeal, sought in these circumstances that the father pay her costs on an indemnity basis and failing that, calculated on a party/party basis.

4. We determined that an order that the father pay the mother’s costs is appropriate [149]. However, as we did not have evidence as to the quantum of costs sought, nor the terms of her costs agreements as is required by r 19.08(3) of the Family Law Rules 2004 (Cth) (“the rules”), provision was made in the orders for compliance with that rule and further submissions. Those orders are set out below:

   (4) That within 14 days the mother file and serve an affidavit addressed to rule 19.08(3) of the Family Law Rules 2004 (Cth), together with written submissions (if any) arising therefrom.

   (5)That within 14 days of service of the affidavit referred to in the above order, the father file and serve written submissions in reply (if any).

5. In accordance with those orders, we received:

   ·an affidavit sworn by the mother’s solicitor and filed on 22 April 2016; and

   ·written submissions under the hand of counsel for the mother filed on 22 April 2016.

6. There were no submissions received on behalf of the father in reply.

7. However, for an abundance of caution, on 27 June 2016, the Appeals Registrar wrote to the solicitor for the father by way of confirmation that the Court had not received submissions in reply to those made on behalf of the mother and that the Full Court would now determine the outstanding costs issue.

8. Turning then to whether or not an order for costs should be made on an indemnity basis, it is useful to repeat what we said at [147]-[150] of our substantive reasons:

   147.First, his Honour’s finding that the father is a person of significant means is undisturbed and we are satisfied he has the financial capacity to meet an order for costs.  Although we know comparatively little of the mother’s financial circumstances, there is nothing which suggests her financial circumstances are equivalent to those of the father.  However, even if they were, there are other matters of greater significance which justify an order for costs in her favour.

   148.Section 117(2A)(d) is particularly significant.  These proceedings were necessitated by the failure of the father to comply with previous orders.  Allied to this, is his position that the Court should dismiss the mother’s application and tolerate what would be his ongoing failure to comply with those orders.  For, as we said earlier, even if error had been established and these interim proceedings were remitted for re-hearing and the father was successful, he would remain obligated to return the boys to Australia. 

   149.There are no other matters relevant to the question of whether or not an order for the payment of the mother’s costs should be made.  It follows, we are satisfied that an order that the father pay the mother’s costs is appropriate. 

   150.However, the question which needs to be answered is whether the mother should be awarded indemnity costs.  It needs to be understood that an order for indemnity costs involves a very great departure from the normal standard and, in this jurisdiction, are rarely ordered (Kohan and Kohan (1993) FLC 92-340; Prantage & Prantage (2013) FLC 93-544). The matters to which reference has just been made bring this case into that small band of cases in which an order for indemnity costs may be appropriate…

9. So that it is abundantly clear, the father and the mother have equal shared parental responsibility for the children, which order the father did not seek to disturb on appeal.  Had the father been successful at trial, and on appeal, that and other parenting orders would have been undisturbed and the father nonetheless obligated to return the boys to Australia.  In other words, and as we explained at [148], the outcome he sought was that this Court tolerate his ongoing failure to comply with important orders in relation to the welfare of children.  His stance was extraordinary and can properly be seen as wilful disregard of clearly established law.

10. The effect of the evidence contained in the affidavit of the mother’s solicitor is that the total solicitor costs in relation to the appeal (including the application for expedition) amounts to $4,690 and $9,735 for counsel.  Although these costs are somewhat higher than they would be if calculated on a party/party basis, the amount is not unreasonable, particularly when regard is had to the subject matter of the proceedings and, for example, the fact that the father himself was represented by senior counsel. 

11. In our view, this is an appropriate matter for indemnity costs.

Le poer trench J

1. I have the benefit of reading the joint reasons for judgment of Ryan and Aldridge JJ in draft.  They are agreed on the conclusion reached and the order which should be made.

2. In my reasons for judgment delivered on 8 April 2016, I took a different view to their Honours and would have allowed the appeal.

3. In those circumstances I conclude it should fall to the majority to determine the question of costs.  I have nothing further to add.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Le Poer Trench JJ) delivered on 30 June 2016.

Associate:

Date:  30 June 2016