Clayton and Bant

[2019] FamCA 891

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT [2019] FamCA 891

FAMILY LAW – COSTS – Where an appeal against parenting orders in this matter was upheld on limited grounds and set down for a re-trial – Where the father was also substantially unsuccessful after a re-trial of the matter – Where the father appealed against the orders made at the re-trial and the appeal has been determined – Where the father was not successful on that appeal – Where the mother seeks her costs of those parenting proceedings – Where the significant difference in financial circumstances of the parties, the father’s successful appeal in relation to the property proceedings and the father’s intentions behind the litigation justify a costs order in the mother’s favour.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Clayton

RESPONDENT: Mr Bant

FILE NUMBER: LEC 310 of 2013

DATE DELIVERED: 27 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Comerford

Parker & Kissane Solicitors

SOLICITOR FOR THE RESPONDENT:

Ms Ali

Watts McCray Lawyers

Orders

1. That within thirty (30) days, the Respondent father pay the costs of the Applicant mother of and incidental to the parenting proceedings before me from 3 November 2016, to the date of Judgment, being 18 October 2018, fixed in the sum of $160,665.12.

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 Clayton & Bant 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 BRISBANE

FILE NUMBER: LEC 310 of 2013

Ms Clayton

Applicant

And

Mr Bant

Respondent

REASONS FOR JUDGMENT

1. These are my reasons for judgment in the determination of an application by the Applicant mother for the Respondent father to pay her costs of the parenting orders proceedings heard and determined by me by orders made on 18 October 2018 for reasons published the same day.

2. Those parenting orders I made determined parenting proceedings between the mother and the father in respect of their only child, a daughter born in 2009. The proceedings had initially been commenced by the mother in 2013. On 19 November 2013, Kent J of this Court made final parenting orders between the parties. By his Honour’s Orders, the child was to live with the mother and to spend supervised time with the father only in Australia under fairly strict conditions.

3. The father appealed against Kent J’s Orders and was successful to a limited degree, with the Full Court setting aside some of his Honour’s Orders and remitting the proceedings for a re-hearing by a Judge other than Kent J in respect of the limited issue as to the terms and conditions of the time the child is to spend with the father in Australia. The father’s application to the High Court for special leave to appeal against Kent J’s decision was dismissed.

4. The matter came into my docket for the re-hearing and the trial on the limited issues took place over three days from 31 July 2017 to 2 August 2017. The mother had filed a Third Amended Initiating Application on 3 November 2016.

5. As I have observed, my reserved judgment was handed down on 18 October 2018. I made some changes to the terms and conditions upon which the child is to spend time with the father in Australia, but, most importantly, my Orders still required the time between child and father to be strictly supervised 24 hours per day that she is in his care on the basis of the unacceptability of the risk that the father might take the child out of the country thus putting her in the position of never seeing her mother again, at least not until her adulthood.

6. Shortly thereafter, the mother filed her application for costs. At around the same time, the father appealed against my Orders.

7. Whilst the father’s appeal was pending, on 10 December 2018, I made directions for the filing of any further evidence in respect of the costs application and told the parties that I would, after they had had the opportunity to file any further material upon which they relied, proceed to deliver judgment. Neither party told the Court that they expected to have the right to make any further submissions on the matter.

8. After that date, the mother filed some further affidavits and a Financial Statement. The parties, by correspondence, asked for an extension of the date by which the father could file any affidavit evidence he wished to relay upon in respect of the costs application because the parties were intending on attending a mediation. I granted that extension. Nevertheless, the father did not ever file any affidavit material.

9. As has eventuated, the appeal has been heard and determined. It was dismissed with the father ordered to pay the mother’s costs of and incidental to the appeal fixed in the amount of $3,000.

10. After that, I had my Associate write to the parties affording them one final opportunity to file any written submissions that they might wish to make in the matter and I gave them until 25 November 2019 to do that. The mother, now unrepresented, filed some written submissions and I have read those.

The determination

1. Pursuant to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”), each party to proceedings under the Act shall bear his or her own costs. That general principle is made subject to exceptions though. Relevantly, s 117(2) provides that where the Court is of the opinion that there are circumstances that justify it in doing so (my emphasis), the Court may make such an order as to costs as the Court considers just.

2. In considering what order, if any, should be made pursuant to the exception provided for in s 117(2), the Court is to have regard to the matters that are set out in s 117(2A) of the Act. That is a non-exhaustive list of matters, including such things as the financial circumstances of each of the parties, the conduct of the parties in relation to the proceedings, whether any party has been wholly unsuccessful in the proceedings, whether either party has made an offer in writing to the other party to settle the proceedings and the terms of any such offer and the very broad “such other matters as the court considers relevant”.

3. In this case, although it cannot be said that the father was wholly unsuccessful in the proceedings that I determined as I did make some orders that were slightly different from those made originally by Kent J (expanding the area within which the father could spend his supervised time with the child from the Town B area to include the AA Town), he certainly did not succeed in obtaining the unsupervised time that he sought. As that is principally what he was seeking, I consider that he was substantially or principally unsuccessful if not wholly unsuccessful and I consider that still significantly relevant to the question of whether a costs order is justified.

4. I consider as significant also, the disparity in the financial positions of the parties. The father is a business person of significant wealth. He and his extended family have interests in a corporate group with various commercial interests. He has property in the UAE, Europe and South East Asia. The group has at least one building which alone houses some 700 employees. By contrast, the mother does not have anything like the same means. She has interests in real property in Australia, particularly a number of properties purchased by the parties during their marriage with a view to securing a future for them and their daughter here in this country which were registered in her sole name. They are of substantial value, but have been caveated by the father and are the subject of equitable proceedings in the Supreme Court of New South Wales in which I understand he is claiming significant equitable interests based on the source of the funds used to purchase those properties.

5. The wife’s ownership of these Australian properties is now to be seen in the context of the father’s successful appeal against Orders of Hogan J in this Court that dismissed the father’s application to permanently stay the mother’s proceedings for property adjustment orders pursuant to s 79 of the Act. The Full Court recently upheld his appeal against Hogan J’s decision and permanently stayed the mother’s property adjustment proceedings in this Court. Accordingly, the mother can expect no property adjustment that would have her receiving any more than the property interests she has in Australia. Indeed, she could lose some, if not most of those interests in the proceedings the father is running against her in the Supreme Court of New South Wales.

6. I also consider as relevant the fact that the father has acted on an expressed intent to make the mother “pay” for her decision to separate from him whilst in Australia and never to return herself or the child to the United Arab Emirates. His demonstrated committed determination to continue the litigation against the mother until the full extent of his appeal rights are exhausted, I am satisfied is indicative of his commitment to that outcome.

7. For these reasons, I am satisfied that an order for costs in favour of the mother is justified.

8. The mother initially sought indemnity costs, but, more recently, in her written submissions, sought an order that her costs as calculated in accordance with the Scale of Costs set out in the Family Law Rules 2004 (Cth) be paid. Though the mother incurred costs in excess of those permitted in the Scale of Costs because she had entered into a Costs Agreement with her solicitors, those solicitors nevertheless calculated her costs pursuant to the Scale of Costs for the relevant period (3 November 2016 – 18 October 2018) at a total of $162,632.17.

9. Included in the work so costed was work for which the mother already received the benefit of a costs order from me fixed in the sum of $1,967.05. Those costs were to be paid by 1 November 2018, but have not been paid yet by the father.

10. In any event, the mother appropriately accepts that the sum of $1,967.05 should not be included in any amount the father is now ordered to pay. It will not be.

11. Pursuant to r 19.18, the Court may order, inter alia, that a party is entitled to costs of a specific amount. I consider that the most appropriate order to make in this case. Ordering that the father pay costs as agreed or as assessed would, I am satisfied, simply put the mother to more expense, dispute and a contested assessment process. That would be further facilitating the father in his endeavours to make the mother “pay”. Accordingly, I will order that the father pay the mother’s costs in a specific amount. I will deduct the sum of $1,967.05 from the total of the costs calculated pursuant to the Scale of Costs and order the father to pay the mother her costs fixed in the sum of $160,665.12. I will order that he pay her that sum within 30 days.

12. I consider it just to make that costs order so that the mother’s costs of and incidental to the remitted proceedings calculated pursuant to the Scale of Costs are paid by the father.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 November 2019.

Associate: 

Date:  27 November 2019