CUNNINGHAM & CUNNINGHAM

[2019] FamCA 6

FAMILY COURT OF AUSTRALIA

CUNNINGHAM & CUNNINGHAM [2019] FamCA 6

FAMILY LAW – COSTS – Where final parenting and property orders made in 2018 – Where mother seeks costs against father – Where father ordered to pay a contribution towards the mother’s costs in the sum of $93,917.34.

Family Law Act 1975 (Cth)
Family Law Rules 2004

Parke and the Estate of the Late A Parke (2016) FLC 93-748

APPLICANT: Mr Cunningham

RESPONDENT: Ms Cunningham

FILE NUMBER: BRC 10161 of 2015

DATE DELIVERED: 11 January 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE:

2 August 2018

Last Submissions received 21 September 2018

REPRESENTATION

THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Stewart Family Law

Orders

1. That the father, Mr Cunningham, shall pay to the mother, Ms Cunningham, by way of contribution towards her costs of these proceedings, the sum of $93,917.34.

2. That said sum shall be paid to the mother out of the father’s share of the proceeds of sale of the parties’ former matrimonial home (calculated in accordance with previous Orders of the Court) held in the trust account of the solicitors for the mother or, if the property is yet to sell, to be paid when such share of the proceeds is received into the trust account of the solicitors for the mother pursuant to previous Orders of the Court.

3. That the balance of the father’s share of the proceeds of sale of the parties’ former matrimonial home (calculated in accordance with previous Orders of the Court) shall be paid to the father or in accordance with his direction.

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 Cunningham & Cunningham 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: BRC 10161 of 2015

Mr Cunningham

Applicant

And

Ms Cunningham

Respondent

REASONS FOR JUDGMENT

1. On 8 June last year I made final Orders and published my Reasons for Judgment in this difficult parenting and financial dispute.  The trial of the matter had taken eighteen days after having originally been listed for ten days. It had been heard in three separate parts, necessitated by a couple of factors.

2. Initially, at the commencement of the fifth day of the trial, Senior Counsel who appeared for the Applicant father was given leave to withdraw after having conferred, at her request, with her client immediately following his lengthy cross-examination. No explanation was given to the Court by Senior Counsel who simply told the Court that, ethically, she could not inform the Court why she was seeking leave to withdraw but that she nevertheless felt bound to do so. In the circumstances, that was not questioned by the Court.

3. The solicitors who represented the applicant father then informed the Court that they did not know whether they could continue to act for the applicant father without first getting advice from other counsel after having obtained a transcript of the evidence that had been given to that point in time. They applied for the matter to be adjourned for that purpose. By necessity, that adjournment was granted. At the next mention of the matter, the applicant father appeared unrepresented, his former solicitors having ceased to act for him in the interim. The matter was listed for further hearing over another six days. There was no suggestion from any of the parties that the matter would not conclude in that allotted time. 

4. The applicant father represented himself at the further hearing. It did not conclude in those allocated six days. Accordingly, it was adjourned again for further hearing over another seven days, the number of days then calculated to be required to finish the trial.

5. Central to the determination of the parenting Orders that were ultimately made were my findings that at least the female child faced an unacceptable risk of sexual abuse if the children were to spend time in the father’s care and that both children faced an unacceptable risk of being exposed to emotional harm if they were to spend even supervised time with the father. The final Orders provided that the two children live with the mother and not spend time with the father. They also provided that the father could only communicate with the children by writing letters and/or cards to them.

6. The property adjustment Orders that were made provided for the parties’ real property to be sold and for the net sale proceeds, along with their superannuation interests and other net property interests to be divided as to 67.5 per cent to the respondent mother and 32.5 per cent to the applicant father.

7. The respondent mother then made an application for the applicant father to pay some of her costs. The applicant father resists the application. I made directions for the filing of affidavits and the delivery of written submissions. In the presentation of her case, the mother has carefully particularised the amount she asks the Court to order the father to pay. That amount totals $278,505.49. It is substantially less than the total costs she paid (just under $600,000), but is meticulously calculated and explained in the material filed by the mother.

8. The mother seeks the following amounts be paid:

   (i)$47,902.35 as the costs of and incidental to her application for interim spousal maintenance;

   (ii)$52,217 as the costs of, incidental and consequential to the adjournment of the trial at the father’s application on day five of the trial;

   (iii)$8,712 as the costs of and incidental to an interim application brought by the father on 26 July 2017;

   (iv)$539 as the costs of and incidental to the directions hearing that occurred on 10 March 2017 after the trial had been adjourned;

   (v)$10,791 as the costs of and incidental to an interim application heard by Senior Registrar Spink;

   (vi)$102,257.40 as the mother’s costs incurred for the third part of the trial that went for seven days;

   (vii)$4,743.80 as the mother’s costs of and incidental to the preparation of expert medical reports and evidence;

   (viii)$25,146.74 being the costs of transcript;

   (ix)$16,538.94 as the costs of this costs application; and

   (x)$9,657.26 as the costs of preparation of the former matrimonial home for sale.

9. For the mother, it was made clear that the above amounts are all calculated in accordance with the Client Costs Agreement that she had with her solicitors and are amounts calculated on an “indemnity” basis, being the actual amounts she was charged by her solicitor and counsel who represented her. Unsurprisingly, the amounts charged pursuant to that Client Costs Agreement were substantially more than the amounts provided for in the scale of costs included in Schedule 3 to the Family Law Rules 2004.

10. The mother’s application was presented in two further alternatives as well. The first of those is for the father to be ordered to pay her costs of and incidental to the proceedings, including the application for costs, as assessed by a Registrar on an indemnity basis. The second of those if for the father to be ordered to pay the mother her costs of retaining her solicitor on a party and party basis in accordance with the Family Court Scale but that her outlays, including for counsel’s fees, be assessed on an indemnity basis.

The Law 

1. Section 117 of the Family Law Act 1975 (“the Act”) sets out the general principle that each party to proceedings under the Act shall bear his or her own costs. That general principle may be departed from where the Court is of the opinion that there are circumstances that justify the making of an order for costs. In such circumstances, the Court can make such order for costs as it considers just. The matters to be considered by the Court in the process of determining whether the circumstances justify departure from the general principle are of a broad spectrum indeed. Those matters include specific matters listed in s 117(2A), such 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, and the terms of any offers in writing to settle the proceedings. They also include the broadly encompassing “such other matters as the court considers relevant”.

2. So, do the circumstances justify the making of an Order for costs in this matter?

The Outcome of the Proceedings

1. The father presented a case in the parenting proceedings that the mother was maliciously making up allegations of sexual abuse against him for financial gain. He sought orders that the children live with him and that their time with the mother be supervised. In contrast, the mother sought orders, that the children live with her and, consequent upon findings of sexual abuse having occurred or an assessment of the risk of sexual abuse in the father’s care as unacceptable, the children not spend time with the father.

2. I assessed the risk of sexual abuse of the youngest child in the father’s care as unacceptable and the risk of emotional harm to the children in spending supervised time with the father as also unacceptable. My Orders provided for the children to live with the mother and not to spend time with the father. In the context of the overall parenting proceedings, it is difficult, therefore, to conclude other than that the father was wholly unsuccessful.

3. On the other hand, I cannot conclude that the father was wholly unsuccessful in the property and spousal maintenance proceedings. In terms of the percentage division the property Orders ultimately provided for, neither party achieved equal to or better than what he or she had submitted would be a just and equitable outcome. The percentage division, though closer to what the mother argued for, fell between their competing positions. Further, my final Orders in respect of spousal maintenance discharged the interim spousal maintenance order for the payment of a periodic weekly amount to the mother from the date of settlement of the sale of the parties’ real property.

4. As I have observed, the mother’s primary position in this costs application is one in which she seeks payment of her costs incurred in particular parts of the proceedings, all carefully particularised. Accordingly, I consider that the determination of the mother’s costs application firstly requires careful focus on each of those parts. 

The Mother’s Interim Application for Spousal Maintenance

1. The father opposed the mother’s application for interim spousal maintenance, denying her need for spousal support from him and his capacity to contribute even if she had a need. 

2. The mother’s costs of $47,902.35 attributed to this part of the proceedings include $1,239.70 for her solicitor’s preparation and attendance and $7,800 for her counsel’s attendance at the first Magellan Directions hearing before me at which her interim application for spousal maintenance was never going to be heard. The Magellan directions hearing principally dealt with parenting issues. I respectfully do not consider that the circumstances justify a costs order that includes any amount for that day when it is sought to be justified in terms of the spousal maintenance application.

3. The matter was then listed for a hearing before the Principal Registrar on 17 December 2015. That day, consent orders were made in respect of interim parenting matters and the spousal maintenance application was adjourned for hearing on 24 February 2016, after attempts to negotiate a settlement failed. I accept the evidence that the father’s lawyers persuaded the Principal Registrar that the spousal maintenance application ought to be adjourned for hearing on another day, there not being sufficient time for it to be heard fully that day in December. The mother’s solicitor’s evidence is that she charged the mother $2,371.60 for her time in preparing for and appearing at that interim hearing. She includes that amount in the sum she seeks to have paid by order. Additionally, she seeks half of the amount that counsel charged for the appearance that day which she has listed as $2,887.50, apparently attributing that to issue of the spousal maintenance application.

4. In my judgment, if it is asserted that only half of counsel’s efforts that day related to the spousal maintenance application, it follows that half of the solicitor’s efforts should also be considered as being related to that application. That would equate to $1,185.80.

5. On 24 February 2016, the interim spousal maintenance hearing was listed before the visiting Acting Principal Registrar. Counsel was again briefed to appear for the mother. His fees for the day were $6,000. The solicitor’s fees for that day were $1,886.50. The mother’s solicitor’s evidence, which I accept, is that the father, through his representatives, resisted the making of an order that day and persuaded the Acting Principal Registrar not to make an order until the parties participated in a conciliation conference.  That conference was listed for 1 April 2016 and the parties’ costs were reserved.

6. The mother and her solicitor then conferred with counsel in preparation for the conciliation conference and counsel charged $825 for that conference.

7. At the conciliation conference, the financial matters (property and spousal maintenance) did not resolve. Accordingly, the spousal maintenance matter was set down for hearing again on 15 June 2016. A key aspect of the ongoing dispute was the father’s contention that the mother had a greater earning capacity than she was actually exploiting. Further, the father was also contending, as I have already observed, that he had no capacity to contribute to the mother’s support in any event.

8. Counsel was briefed again to appear at the interim hearing. Conferencing took place to prepare and to allow for drawing of affidavit material and related Court documents. Supporting affidavit evidence from treating medical specialists were obtained for the mother. A detailed affidavit of evidence in chief was prepared, settled by counsel and filed for the mother. That cost the mother an additional $1,650 in counsel’s fees and $1,480.05 in solicitor’s fees. Counsel also charged $2,750 for further work in this respect. The mother’s solicitor also charged the mother a further $1,994.30 for attending conferences with counsel around this time.

9. The interim hearing took place before Senior Registrar Spink on 15 June 2016. Counsel appeared for the mother. Senior Counsel appeared for the father. A contested hearing took place. It cost the mother $7,700 in counsel’s fees and $2,156 in solicitor’s fees.

10. A few weeks later, Senior Registrar Spink made an Order that the father commence to pay the mother $510 per week in spousal maintenance. The mother’s solicitor said that she charged the mother $161.70 for perusing the Senior Registrar’s Reasons for Judgment and that there was an additional $7,000 that she had charged the mother since the commencement of the interim application for spousal maintenance that related to that application particularly.

11. The father submitted that in respect of the spousal maintenance application he was not wholly unsuccessful. In support, he asserted that the mother sought weekly spousal maintenance of $984 for five years but only obtained an Order for $510 per week. Accordingly, he argued, it cannot be said that he was wholly unsuccessful.

12. In fact, a reading of Senior Registrar Spink’s Reasons for Judgment shows the mother’s application, at least at the time it was heard, was for a lump sum payment of $40,000 (to be sourced from a credit said by her to be held in the father’s Australian Taxation Office accounts) and for $800 per week pending final settlement.  The father’s position remained unchanged. He was observed to be seeking to have the mother’s application completely dismissed and for her to pay his costs.

13. Clearly then, whilst the mother did not obtain all that she sought, she obtained an order for periodic maintenance that was far closer to the amount she sought than it was to the complete dismissal that the father sought. The father, whilst not “wholly unsuccessful” was certainly nowhere near wholly successful. This lack of success came in circumstances where I accept that the key planks in his argued position were that the mother had unexploited earning capacity and could support herself whilst he did not have the capacity to contribute at all. The Senior Registrar rejected the argument that the mother had unexploited earning capacity and accepted that she had health issues that restricted her ability to work. The mother had gone to great lengths to prove this in the face of the father’s denial of same. The Senior Registrar then went on to reject the father’s case that he did not have the capacity to contribute and plainly found that he did to the extent of the mother’s need for contribution from him in the sum of $510 per week.

14. It had taken the mother just around seven months to have her interim spousal maintenance application heard and determined in the face of the father’s opposition. Despite the Senior Registrar determining that she was entitled to receive a contribution from the father towards her maintenance in the sum of $510 per week, she only started receiving that in July 2016 after having applied for interim spousal maintenance the year before. She did not receive the benefit of a retrospective order, and the periodic payments were ordered to start on the delivery of the Senior Registrar’s judgment.

15. Furthermore, the Senior Registrar’s judgment reflects that he dismissed the mother’s application for the lump sum payment of $40,000 from money she asserted the father had on credit with the ATO. He did so relying on some evidence from an adversarial accounting expert retained by the father to the effect that any such credit was likely to be subsumed by tax liability. By the time the trial commenced in this matter, the father actually conceded that he had received refunds of money the ATO held to his credit – a total of $46,586 in two payments in November 2016.  Clearly then, the position the father advanced to the Senior Registrar about that tax credit at the interim hearing in June that year does not appear to have been entirely accurate.

16. There was no evidence of any offer being made in writing by either party to settle the interim spousal maintenance dispute. Had the father produced evidence of an offer in writing having been made soon after the mother’s application was made, in which he offered to pay the mother in the order of $500 per week or more, it would be most probable that he would have been able to make a much stronger case for resisting a costs order in relation to the interim spousal maintenance application. However, he did not. He always sought that the application be dismissed, arguing he did not have the capacity to contribute. He also made it clear that he would expect the mother to pay his costs in the event that he was successful in having her application dismissed. He had to, therefore, be aware of the risk of a costs order being made against him if the circumstances were adjudged appropriate to such an order. He has to be understood to have made his decisions in respect of the proceedings with that in mind. The mother’s application was not dismissed and the father was adjudged to have capacity to contribute to the extent of her determined needs.

1. Though the mother’s ordered share of the parties’ property and superannuation interests is substantially larger than the father’s, his income is much greater than the mother’s and his future earning capacity remains substantially greater than hers. Having been represented throughout the entire proceedings, the mother paid substantially more in legal fees overall than the father did. The evidence, which I accept, is that she has incurred close to $600,000 in legal costs whilst the father incurred about half that amount.

2. I am satisfied that all of these circumstances justify departure from the general principle that the mother and the father each bear their own costs in relation to the interim spousal maintenance application.

3. Accordingly, the total of the amount the mother incurred in legal costs in respect of the interim spousal maintenance application that I consider as an appropriate starting point in the consideration of what Order would be a just one to make is the sum of $37,676.85 as particularised above.

What Order should be made?

1. The Court is given a wide power to determine an order for costs. Rule 19.18(1) of the Family Law Rules 2004 provides that the Court may order that a party is entitled to costs:

   (a)of a specific amount;

   (b)as assessed on a particular basis, whether that be party and party or indemnity;

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount, assessed in accordance with the schedule to the Rules.

2. Sub-rule 3 of Rule 19.18 permits the Court, in making a costs order, to consider the following:

   (a)The importance, complexity or difficulty of the issues;

   (b)The reasonableness of each party’s behaviour in the case;

   (c)The rates ordinarily payable to lawyer’s in comparable cases;

   (d)Whether a lawyer’s conduct has been improper or unreasonable;

   (e)The time properly spent on the case, or in complying with pre-action procedures; and

   (f)Expenses properly paid or payable.

3. The father was not “wholly unsuccessful” and, in respect of this part of the proceedings, I do not consider that the circumstances make it just to order that he pay the mother all of her relevant costs on an indemnity basis calculated in accordance with the Client Costs Agreement she had with her solicitors. However, that is not to say that I am persuaded that the best outcome in this case is to make an order that provides for assessment by a Registrar on a party and party basis. In all the circumstances, I do not consider it a “just” outcome to force the mother to incur even more legal expenses going through the assessment process.

4. As I consider I am entitled to do, I consider that an order for costs that is “just” in this matter within the meaning of s 117(2) of the Act is one which specifies the amount the father is to pay the mother as a contribution towards her costs.

5. I have regard to the fact that the mother’s application, as ultimately heard, was for $800 per week but that she obtained an Order for $510 per week. I have regard to the fact that pursuant to the Client Costs Agreement she had with her solicitors, the hourly rate she was being charged for her solicitor’s time was $539 inclusive of GST whereas pursuant to the Scale of Costs contained in Schedule 3 to the Family Law Rules the hourly rate allowed for a solicitor’s time is $159.69. Counsel’s fees, though rendered by a very experienced junior barrister, appeared to approximate $6,000 to $7,000 for an appearance for a day, whereas the Scale of Costs has junior counsel’s fees at approximately $2,000 to $3,000 per day.

6. Considering all of those matters, I will specify the amount of costs I determine the father is to pay the mother in respect to her interim spousal maintenance application in these proceedings at $15,000. I refer to paragraphs 129 to 131 (and authority cited therein) of Murphy J’s Reasons for Judgment in the Full Court’s decision in Parke and the Estate of the Late A Parke (2016) FLC 93-748 in which there are statements of principle applicable to the fixing “broadly” of a sum of costs to be paid having regard to the information before the Court. I am mindful of what was said therein. Though the majority of May and Ryan JJ in that judgment made costs orders that were different to those that Murphy J would have made applying those principles, their Honours said nothing that I respectfully consider detracts from the principles espoused by and referred to by Murphy J.

The Costs the Mother seeks as a consequence of the adjournment of the trial sought by the father on the morning of day five.

1. The mother’s solicitor charged the mother $1,617 for her attendance at Court on 13 January 2017, the day the trial was adjourned part-heard. Counsel’s fees for that day were $4,400. Counsel also charged the mother for two out of the five days for which he had been retained for the trial in the following week. That was another $8,800. They were all costs thrown away because of the adjournment sought by the father and his legal representatives. 

2. The evidence is that the mother’s counsel had done a lot of preparation for the trial, listed for ten days. He had charged the mother $37,400 for that preparation. For the mother, it was asserted that these preparation costs were all thrown away. Without more, I respectfully do not accept that. Counsel for the mother spent most of the first four days of the trial cross-examining the father. Preparation for that could not be said to have been thrown away, though I accept that some of the preparation would have been thrown away given the way the trial proceeded when it came back on and given the length of time that expired between the adjournment and the ultimate conclusion of the trial. I consider at least 25 per cent of counsel’s preparation would have been thrown away.

3. The mother’s solicitor charged the mother $539 for her appearance at the directions hearing necessitated by the adjournment. They were costs directly incurred because of the adjournment.

4. The trial proceeded for six further days in July 2017. If it was to conclude within ten days as originally expected, those six days should have been sufficient to finish it. However, the father, who was by then unrepresented, filed further affidavits, including from witnesses who had sworn affidavits already filed. He also sought to agitate some fresh issues at the commencement of the second part of the trial, such as the valuation of the parties’ real property, although an agreed single expert’s report had already been obtained. He also raised a further interim application that he wanted to have heard in the parenting case and he produced evidence for the first time in the form of a recording of a conversation with the mother and a transcript of that conversation, the conversation having occurred two years before.

5. I am quite satisfied that time was lost in the second part of the trial that would not have been lost but for the adjournment of the trial on the original fifth day of trial and that substantial additional costs were incurred by the mother given the fresh matters and evidence that her solicitor and counsel were required to deal with that would not have been incurred but for the adjournment. These were all costs thrown away because of the adjournment.

6. Without any evidence ever being offered by the father as to the circumstances pertaining to why the Senior Counsel he retained felt ethically bound to withdraw from the trial at the conclusion of the father’s cross-examination and as to why his solicitors then also felt bound to withdraw, I consider a costs order in favour of the mother in respect of costs that were wasted due to the adjournment that brought about entirely justified. 

7. When the evidence began again on the first day of the second part of the trial, it was with the father being required to go back into the witness box to be cross-examined again on matters arising from the fresh evidentiary material he had filed and produced since the trial had been adjourned. The entire first day of the second part of the trial was taken up with this. I consider that this would not have been necessary had the trial not been adjourned part-heard in January 2017. I accept that day would have cost the mother another $1,617 in solicitor’s fees and $4,400 in counsel’s fees. 

8. The rest of the additional six days, save for the afternoon of the last of them, was spent hearing further cross-examination of witnesses. Three and a half days was taken up with the father cross-examining the mother.

9. Although half a day at the end of the second part of the trial was lost to the hearing of the father’s unsuccessful interim parenting application, I am satisfied, after having concluded the trial with another seven days in January 2018, that the trial would not have finished within the first ten days allocated for the trial even if it had not been adjourned. The third part of the trial was taken up with the cross-examination of witnesses, all of whom were always going to be witnesses who were required to be cross-examined. Whilst some of the cross-examination of witnesses, such as Ms Z, was no doubt longer than it might have been if it had taken place during the first part of the trial because of things that had transpired in the period between the first part of the trial and the third part of the trial, I still do not consider that the trial would have finished within the first allocated ten day period if it had not been adjourned. I do not accept that it only went the extra seven days because the father’s legal representatives withdrew and the father chose to appear and to conduct the balance of the trial himself, without legal representation. Clearly, I am satisfied that the legal representatives of each of the parties had miscalculated when they originally estimated that the trial would conclude in ten days. Such miscalculations sometimes happen.

10. The mother seeks her costs incurred for each of those extra seven days at $4,400 per day for counsel’s fees, as well as various amounts of between $4,000 to $5,000 per day for her solicitor’s preparation and attendance each day. In addition, she seeks the costs counsel charged for preparation for that part of the trial, being the sum of $39,600 that is said to have included counsel’s review of the transcript and preparation of final submissions.

11. Part of one of the days was taken up cross-examining the father in respect of further evidence he adduced for the final part of the trial going to the issue of employment he had taken up at an overseas university that would require him to travel to a European country and stay there for several weeks a year. That evidence would not have been adduced had the trial finished earlier in 2017 which I am satisfied it would have, but for the adjournment. I consider some relative small part of counsel’s preparation for the third part of the trial would have been attributable to his preparation for this cross-examination of the father and for the longer cross-examination of Ms Z that would not have been required but for the adjournment.  I consider it reasonable to conclude that 10 per cent of counsel’s preparation for the third part of the trial would have been consequential upon the original adjournment. I also consider that probably  half a day of the additional seven days is fairly attributable to these matters, and accept that legal fees paid to the mother’s solicitor and counsel for that half day would not have been occurred but for the original adjournment.

12. Otherwise, I consider that counsel’s preparation for the third part of the trial, including reading transcript, would have necessarily been substantially incurred even if the trial had not been adjourned on day five and had continued for ten straight days to then be adjourned for around six months before finishing over another seven days, as I expect would have happened.

13. If that extra half day is considered and added to the half day of the last day of the second part of the trial that was spent hearing and determining the father’s wholly unsuccessful interim parenting application, it is appropriate, in my judgment, to consider another whole day of costs was indeed incurred by the mother consequential on the first adjournment sought and obtained by the father and his legal representatives.

14. Accordingly, I calculate a total of $43,983 in fees incurred by the mother as being incurred consequential upon the adjournment the father brought about on day five of the trial, $35,210 of which was counsel’s fees.

15. Given the difference between counsel’s actual charges and the top end of the amount allowed for junior counsel in the Scale of Costs set out in Schedule 3 of the Rules (and I accept that counsel for the mother would clearly command top end of scale allowed for junior counsel), I consider three quarters of that amount not an unreasonable amount to determine the father to pay. That is $26,407.50 for counsel’s fees.

16. Given the difference between the amount charged by the mother’s solicitor pursuant to their costs agreement and the amount provided for in Schedule 3, I consider 30 per cent of the balance to also be a reasonable amount to determine the father to pay. That is $2,631.90. Together those amount to $29,039.40.

The Mother’s costs of and incidental to the interim application of the father heard by Senior Registrar Spink

1. Between the first and second parts of the trial, the father brought an interim application seeking parenting orders and orders in the property proceedings. The father had them listed for hearing before the Senior Registrar although the matter was part-heard before me. Unsurprisingly, the Senior Registrar, I accept, gave the father certain assistance in respect of what the Senior Registrar considered were the prospects of the application and dismissed some parts of it. The father insisted that other parts be adjourned to be heard by me at the trial. The mother sought her costs in respect of the parts of the application that had failed and the Senior Registrar reserved the parties’ costs to the trial judge.

2. The mother incurred $1,269.40 in costs with her solicitor for the preparation of a Response to the application and an affidavit supporting that response and in filing and serving those. She also incurred $2,371.60 in costs for her solicitor’s attendance at Court before the Senior Registrar instructing counsel and $7,150 in counsel’s fees, which must have included some amount for preparation.

3. As it turned out those parts of the application adjourned to be heard by me were completely dismissed as unmeritorious. As the application was completely unmeritorious, and the father was wholly unsuccessful, I am entirely satisfied that he ought to pay the mother’s costs of answering that application that should not have been brought. Again, for the same reasons as previously observed, I determine that 75 per cent of counsel’s fees and 30 per cent of the solicitor’s fees should be paid by the father. Those total $6,454.80.

The Mother’s costs of the further interim hearing on 26 July 2017 on the last day of the Second Part of the Trial

1. As has already been observed, the last afternoon of the second part of the trial was lost to the hearing of the father’s application for interim orders that the Senior Registrar had adjourned to be heard at the continuation of the trial. As was submitted for the mother, even in the face of guidance from the Court, the father pressed for the hearing and determination of his application. It was dismissed and costs were reserved.

2. I have already taken the half day of counsel’s time and the solicitor’s time and added it to a half day of the last part of the trial and allowed for it in the determination that the father pay an amount of $29,039.40 towards the mother’s costs thrown away by the original adjournment. To allow any amount for that lost day again would, in my judgement, be doubling up. Nevertheless, though not set out with particularity in the mother’s material, I consider an amount of $1,000 for costs incurred by the mother to her solicitor and counsel in preparing for and dealing with this application on the last day of the second part of the trial to be an appropriate amount to order the father to pay. 

The Mother’s costs of transcript

1. The mother obtained transcript from various parts of the trial for the use by her solicitor and counsel in their preparation. That cost her $25,146.74.

2. The mother seeks that the father pay those costs. It was submitted that transcript was necessary to obtain because of the adjournment during the first part of the trial and the expiration of substantial periods of time between the three parts of the trial. It was also submitted that obtaining transcript was also made more necessitous for the mother due to the fact that the father “often made statements contrary to the evidence and even contrary to previous statements he made to the Court.” It was asserted that the Court had to “regularly have recourse to the transcript of the proceedings.”

3. I accept that there is merit in those submissions made for the mother. I consider it entirely reasonable and, more importantly, just to include an amount of $15,000 for that part of the transcript that the father should contribute towards by payment of a costs order. Clearly, by that, I do not consider that he should meet all of the mother’s costs of obtaining it.

The Mother’s costs of obtaining medical advice in respect of her back injury.

1. The mother paid $4,743.80 in obtaining medical reports from doctors that were adduced into evidence in support of her case that she still suffered from her back injury. She seeks an order that the father pay those costs.

2. For the mother, it is submitted that not only did the father deny the mother’s case about her back and its affect upon her earning capacity in the interim spousal maintenance proceedings which he was unsuccessful in, but also in the subsequent property adjustment proceedings. For the mother, it was pointed out, and I accept, that the father’s position on this was maintained despite the fact that the parties were married when the mother suffered her serious back injury; he was aware of the impact the injury had on the mother from that time on; he had attended medical appointments with the mother from time to time where her back injury was the subject and he was acutely aware of the civil litigation the mother ran as a consequence of the injury and the large damages settlement that she obtained in that litigation. Knowing all this, I am satisfied the father’s position in the litigation was unnecessarily belligerent and obstructionist.

3. In order to prove her case, the mother was required to obtain evidence from a neurosurgeon, a physiotherapist, an orthopaedic spinal surgeon and an occupational therapist.

4. I consider it appropriate, in the circumstances to order the father pay an amount towards the mother’s costs of obtaining this evidence. As the evidence is that this amount is a total of the costs of communicating with the professionals, drawing filing and serving affidavits, again for reasons already given, I consider an amount representing 30 per cent of that amount is an appropriate amount to order the father to pay. That is $1,423.14.

The Mother’s costs of the third part of the trial

1. The mother asks the Court to order the father to pay her costs incurred in respect of the third part of the trial. They were particularised by her at $102,257.40 being counsel’s costs for preparation and his daily fees for appearing on the seven days as well as the solicitor’s daily fees for preparation and appearing. I have already dealt with this in the context of costs I have determined should be paid by the father as costs thrown away by the adjournment of the trial on day five that was sought and obtained by him and his legal representatives. I will not make an order that makes the father pay twice for the same costs.

1. However, what I have not done to this point in time is actually consider whether there should be any costs consequences, despite the general principle, as a result of the way in which the father ran his case overall. In my final determination, I set out my findings and reasons, based on those findings, for making the Orders that I did. I clearly preferred the evidence of the mother where there was dispute about the facts. I ultimately found that the father had not told the truth about many important factual issues. I even found, as the mother’s submissions remind me, that the father had edited a recording of a conversation that he and the mother had soon after their separation, a recording the mother did not even know he was making at the time, and which he only produced after the trial was adjourned part-heard in January 2017.

2. I accept submissions made for the mother that the father’s position lacked honesty and integrity. I accept that the father did not act with integrity, honesty and frankness in respect of his income and his taxation position throughout the proceedings and that this necessitated substantially more work to be done by the mother’s legal representatives than they would otherwise have had to do. Indeed, the father also levelled numerous serious allegations of malice, avarice, professional fraud, dishonesty and negligence, mental health disorders, alcoholism and emotional child abuse against the mother as part of what I consider was his attempt to divert attention from that which was the determinative issue, namely the question of alleged sexual abuse of the parties’ female child.

3. These allegations not only caused the mother much anxiety and distress, but inevitably caused her to have to expend significant legal costs to defend herself from them. Given that I ultimately decided all of those issues raised by the allegations of the father against him, I consider a further costs order to be justified. Consistent with my determination to save the mother any further costs, I will specify a sum that I consider provides justice on this particular issue. My order will include an amount of $20,000 as contribution by the father to the mother’s costs of meeting all of those allegations that went nowhere.

The Mother’s costs of this costs application

1. For the mother, it is asserted that she has incurred costs in bringing this costs application. Those costs included $8,800 for counsel for his appearing, settling of material and drawing written submissions. They included $4,331.14 for the solicitor’s preparation of documents, $808.50 for attending a directions hearing and $2,599.30 for conferencing, drawing, filing and serving documents.

2. As the mother has been partly successful in her application, I am satisfied the father should make some contribution to her costs of the application. I will fix that amount at $6,000.

The Mother’s costs of preparing the real property for sale

1. In the property adjustment Orders I made, I ordered the sale of the parties’ real property. It was clear, I considered, that the property had to be sold. Though the mother did not seek an order that it be sold, in my view it could not be considered not to have been a potential outcome. Indeed, the mother conceded in evidence that the property would have to be sold. I referred to that concession in my Reasons for Judgment.

2. No evidence was given in respect of matters that would have to be attended to in order to present the property for sale. No orders were asked for providing for any such costs to be met equitably by the parties in the event that the property was to be sold and such costs incurred.

3. The evidence is that the mother subsequently spent a total of $9,657.26 on preparing the property for sale. That amount included amounts spent on a house wash, building repairs, pest spray, gardening repairs and building, pest and pool fencing reports. Respectfully, I am not satisfied that any of those expenses were other than discretionary in the circumstances and that the mother, who had the most to gain from maximising the amount for which the property sold, has not benefited from her expenditure.

4. I do not consider the question of these expenses to be a matter appropriately falling within the discretionary realm of a costs order in respect of the mother’s legal costs and outlays in running her case. I will not make an order that includes any amount for this expenditure.

The Total and the Orders I will make

1. The total of the amounts that I have specified above is $93,917.34. I will order that the father pay that sum to the wife as contribution towards her costs of the proceedings.

2. I have previously made Orders pending the determination of this application for costs that the father’s share of the proceeds of any sale of the parties’ real property were to be retained in the mother’s solicitor’s trust account pending the determination of this costs application.

3. Whilst I am not aware of what has happened, I expect that the property would have been sold by now and that the father’s share of the proceeds sits in the mother’s solicitor’s trust account. I have no reason to consider that the father’s share of the proceeds of sale of the property would not exceed the sum of $93,917.34. The real property was worth at least $1,075,000 and the debt to the bank was around $448,000. If the property sold for an amount at least equal to that valuation (and the father believed that it would sell for considerably more than that) then his share of the proceeds, calculated in accordance with the formula set out in the final Orders, would most definitely cover a costs order for $93,917.34.

4. Accordingly, I will make an Order that the sum of $93,917.34 be paid by the father to the mother as a contribution towards her costs, that it be paid out of his share of the proceeds of sale of the property as may be held in the trust account of the mother’s solicitors or as may yet come into that trust account in the event that the property is yet to sell, and that any balance of the father’s share be paid to him or at his direction.

5. I order as set out at the commencement of these written reasons.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 11 January 2019.

Associate:

Date:  11 January 2019