Bradbury and Lander (No. 3)
[2019] FamCA 152
•20 March 2019
FAMILY COURT OF AUSTRALIA
| BRADBURY & LANDER (NO. 3) | [2019] FamCA 152 |
| FAMILY LAW – COSTS |
| Family Law Act 1975 (Cth) - ss 70NEB & 70NEC |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536 Firth & Hale-Forbes (No. 2) [2013] FamCA 814 Graft & McCormick (Costs) [2018] FamCAFC 82 Grant & Russell [2014] FamCA 589 |
| APPLICANT: | Mr Bradbury |
| RESPONDENT: | Ms Lander |
| INDEPENDENT CHILDREN’S LAWYER: | Yeend & Associates |
| FILE NUMBER: | CAC | 239 | of | 2017 |
| DATE DELIVERED: | 20 March 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 14 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J Haddock |
| SOLICITOR FOR THE APPLICANT: | Infinity Legal |
| SOLICITOR FOR THE RESPONDENT: | Self-Represented |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms M Burgess |
Orders
It is ordered that the Respondent pay to the Applicant his costs of the proceedings on the basis set out below, as agreed or as assessed:
(a) Half of his costs:
(i)Relating to the commencement of the contravention proceedings;
(ii)From the commencement of the contravention proceedings until delivery of judgment on 24 January 2019.
(b) His costs:
(i)From the delivery of judgment in relation to the contraventions on 24 January 2019 until the delivery of judgment in relation to the imposition of a Bond upon the Respondent on 14 March 2019.
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
The Father seeks the costs of his contravention proceedings. He sought that the Mother be dealt with for eight contraventions, of which four were found. These were dealt with as less serious contraventions pursuant to s 70NEB of the Family Law Act 1975 and disposed of by way of Bond per s 70NEC.
The Father now seeks indemnity costs or in the alternative his costs. The Mother asked that her expenses for missed work in order to prepare for the case be met as her costs.
The Father relies upon a number of matters to justify his claim. He relies upon the Mother's conduct the proceedings. By way of example, he identifies that in the lead up to the last part of the proceedings that dealt with the imposition of the Bond the Mother, contrary to the directions for filing, late filed an affidavit of 70 pages along with an adjournment application with a further supporting affidavit of 27 pages. Much of what was contained in her affidavit was either submission or irrelevant to the proceedings.
He also alleges a failure on the part of the Mother to concede until late in the proceedings. By way of example, he identifies her late concession (later withdrawn) that one particular description she made of the Father was denigrating.
The Father relies upon the proceedings been necessitated by the Mother's failure to comply with Orders and that that failure to comply occurred in a context of the Father's attempt to avoid the litigation by having his solicitor write to the Mother to warn that she was in breach of the Orders and if she continued she risked litigation. In the face of that the Mother did continue and was frank in her assertion in saying to the Court that she pays no heed to correspondence coming from the Father's lawyer.
The Father also relied upon personal attacks made on himself and his solicitor through the proceedings.
The Father relied on the financial circumstance that prior to the last day of the hearing on which the Bond was imposed he had already incurred approximately $31,000 in fees in relation, he says, to the proven counts.
The Father relied on the authority of Graft & McCormick (Costs) [2018] FamCAFC 82 in which an order was made for the grant of indemnity costs. There Murphy J emphasised the exceptional nature of the case which was made out in that particular case by conduct. It may be observed that the conduct seen by Murphy J in that case was a far more extreme example than what is seen here.
The Mother pointed to the Father only being successful in four out of the eight contraventions that he pressed. It may also be observed that the eight matters that were pressed themselves formed a subset of those alleged in the Father’s contravention application.
The Mother says of her financial circumstances that she has been unable to work because of the proceedings. She also alleges that she meets the bulk of their daughter’s costs despite the daughter living with the Father.
The Mother alleges that the cost claim is not simply for the successful counts and also that the Father's lawyer is unduly expensive.
The Mother alleges misconduct on the Father's part in that she says that he has perjured himself. This is not been established.
The Mother also categorises the Father's litigation as being a "petty whinge”.
The Mother relied upon the case of Grant & Russell [2014] FamCA 589 on the basis that that case, like this, related to a contravention of a non-denigration clause, but without an order for costs being made. The Mother was, however, wrong in her characterisation of Grant & Russell as being a case in which costs were not awarded. They were awarded. Of course it must be observed that each case will turn on its own facts in respect of costs, but that does not mean that cases with similar facts are not of assistance. There are some parallels to this case in that it related to the breach of non-denigration clause and also in circumstances where the Applicant had not been wholly successful.
The Mother also relied on Firth & Hale-Forbes (No. 2) [2013] FamCA 814. In that case it was noted by Rees J that it was possible for a misrepresentation to be a relevant matter to be considered for costs. I would note that such a misrepresentation has not been proven here in any event. Justice Rees also noted the exceptional nature of an award of indemnity costs.
Should there be an order for costs
The starting point is that each party will bear their own costs unless there are circumstances such as to justify departure from that point.
In relation to the financial circumstances it may be seen that the Mother is struggling financially. However, Murphy J in Graft noted that this does not constitute a bar to making a costs order (although of course it is a relevant consideration).
Neither party is in receipt of Legal Aid.
On the question of conduct the Mother late filed voluminous and irrelevant affidavit material. This attracts some, but minor, weight in this case.
The proceedings were necessitated by the failure of the Mother to comply with Orders. The contraventions show this to be the case. While the Mother says that it was a “petty whinge” on the part of the Father it constituted an immediate and continuing breach of Orders in the face of correspondence seeking that she desist.
No party has been wholly unsuccessful.
No offer has been made in writing.
On balance, the fact that these proceedings were necessitated by non-compliance moves this case from the default position that each party bears their own costs, as it did for Benjamin J in Grant & Russell. What gives particular weight to that circumstance is that the contravention continued in the face of a warning from the Father’s solicitor. In this case the starting position should not determine the outcome in this case.
However the case does not meet the extraordinary level of circumstances needed to justify indemnity costs as described in Graft by Murphy J in applying Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536.
The costs award should reflect that the Father was not wholly successful in those matters that he pressed, and that the pressed matters were less than what he initially pursued. Noting that in preparing a case there is necessarily some preparation that is common to those which were successful and those which were not, the Father should only receive half of his costs from the commencement of the proceedings until the commencement of the sanction phase, from which point he should receive his full costs, reckoned in the usual manner.
While it is preferable to make a lump sum order to end the matter I am unable to do so on the material before me.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 March 2019.
Associate:
Date: 20 March 2019
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