Bradbury and Lander (No 2)

[2020] FamCA 720

FAMILY COURT OF AUSTRALIA

BRADBURY & LANDER (NO. 2) [2020] FamCA 720

FAMILY LAW – COSTS – where the Wife was wholly unsuccessful – where it is appropriate to make a costs order at the specific amount sought by the Husband

Family Law Act 1975 (Cth) – s 117
Family Law Rules 2004 (Cth) – Itemised Scale of Costs, r 19.18(1)

Atkinson & Atkinson (No2) [2019] FamCA 437

APPLICANT: Mr Bradbury

RESPONDENT: Ms Lander

FILE NUMBER: CAC 239 of 2017

DATE DELIVERED: 1 September 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE:  27 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. Ms Lander is to pay to Mr Bradbury, in accordance with a written direction provided by his solicitor, costs in the sum of $3 117.06 within 28 days of these orders;

2. That the Husband’s Application in a Case filed on 20 July 2020 is otherwise dismissed.

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 Bradbury & Lander 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 CANBERRA

FILE NUMBER: CAC 239 of 2017

Mr Bradbury

Applicant

And

Ms Lander

Respondent

REASONS FOR JUDGMENT

1. This matter concerns competing costs applications in relation to a contested divorce application made by the Husband.  The Husband was, despite the opposition of the Wife, successful in obtaining the divorce order in July 2020.

2. Costs are governed by s 117 of the Family Law Act 1975 (Cth), which provides a scheme whereby the starting point is that each party shall bear his or her own costs unless, taking into account the matters contained at s 117(2A), that position should be departed from.

3. In seeking to depart from that position, the Husband relied firstly on the conduct of the Wife in relation to his divorce application.  In short, he pointed to it having been plain that there was no proper basis in law for the Wife to have opposed the divorce application, causing it to proceed to a contested hearing.

4. Although the Wife is unrepresented, the solicitor for the Husband took the step of writing to the Wife to set out the legal principles that govern the divorce application. 

5. The Wife then sought to resist the application on the basis that, despite the parties having lived separately and apart for a continuous period of 12 months immediately prior to the filing to the application for divorce, there was a reasonable likelihood that cohabitation would be resumed.  This was not established by the Wife.

6. The Wife also asserted that the Husband was not mentally competent and so his application ought to have failed.  She did not demonstrate such a lack of competence.

7. It should have been apparent to the Wife that her resistance to the divorce lacked legal merit.

8. The second ground raised by the Husband related to the failure of the Wife to accept an offer to settle.  In advance of the contested hearing, the Husband’s solicitor wrote to the Wife in terms that, should the Wife withdraw her opposition to the divorce, that no costs would be sought against her.  She did not and unsuccessfully opposed the divorce order.

9. The Wife, in pressing for costs in her favour, emphasised that she too had made offers to settle, and that the Husband had not accepted these, nor her pressing for mediation or settlement negotiations. 

10. The Wife complained that she thought that the Husband’s lawyer had not passed on settlement offers.

11. The Wife had sought from the Husband, in order for her to consent to a “secular” divorce, that he also give her what she described as a “religious” divorce, by conceding particular factual matters to her that she said would leave her then free to remarry in accordance with her religious beliefs.

12. It may be observed that the Wife’s settlement offers all involved conditions over and above her consent to the divorce, and were thereby less favourable than the result obtained by the Husband.

13. The third matter raised by the Husband was that the Wife was wholly unsuccessful in her resistance of the divorce order.

14. Against this, the Wife claimed that she had been denied a lawyer by virtue of the Husband’s conduct in relation to the property of the marriage, his conduct constituting family violence.  She asserted that, had she had access to a lawyer, she would have been successful in her resistance of the divorce order.

15. The Wife further asserted that she anticipated that her work contract would soon come to an end.

Conclusion

1. The refusal by the Wife to accept the offer to agree to the divorce, without any order for costs, the pursuit of a case without prospects of success in the face of correspondence indicating as much, and being wholly unsuccessful means that the Wife should pay the Husband’s costs of the contested divorce.

2. The issue that remains is as to quantum. The Husband seeks a sum of $3 117.06, or otherwise as agreed or as taxed. The basis of the sum that the Husband seeks is set out in the itemised lists at Annexure J of his affidavit, with the items calculated in accordance with Part 1 of Schedule 3 of the Family Law Rules 2004 – Itemised Scale of Costs.

3. The reasons for making a sum certain order were helpfully set out by Foster J in Atkinson & Atkinson (No2)[1] where, after referring to the support that r 19.18(1) gives for such an approach, he said:

   It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.

   In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.

   Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748 at [130]:

   If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…

   [1]Atkinson & Atkinson (No2) [2019] FamCA 437

4. Such an approach is appropriate here, to avoid the parties becoming potentially embroiled in a taxation process and where an itemised list has been provided in order to sustain an assessment as to the appropriate quantum of the costs.

5. This itemised list forms the appropriate basis to establish quantum on the basis of the relevant scale.  Each item listed appears proper to the necessary conduct of the case, as might accord with a party – party assessment.  The items there recorded reflect appropriate charging at scale of interactions with the Husband and the Wife, along with the exercise of appropriate skill in relation to preparation for and attendance at court events.

6. Costs will be awarded at the specific amount sought by the Husband, rather than put the parties to the added step of assessment of the costs.

I certify that the preceding 21 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 1 September 2020.

Associate:

Date: 1 September 2020