Donaghey v Donaghey (Costs)
[2012] FamCA 231
•17 April 2012
FAMILY COURT OF AUSTRALIA
| DONAGHEY & DONAGHEY (COSTS) | [2012] FamCA 231 |
| FAMILY LAW – COSTS – where mother contravened parenting Orders by withholding the parties’ child and secreting their whereabouts – where the father subsequently sought, inter alia, recovery, location and information orders – where the father sought leave to issue various subpoenas to facilitate the location of the parties’ child – where the child was located several months later – where the father seeks an order that the mother pay his costs of the proceedings since the contravention, on an indemnity basis – where the mother resists the application, and instead seeks an order that the father pay her costs, or, alternatively, that the Court pay each of her and the father’s costs – consideration of the s 117(2A) factors – whether an order for costs should be made against the mother – where mother’s conduct necessitated the proceedings instituted by the father – where the mother should pay the father’s costs and expenses of the various applications filed by him – whether such order for costs ought to be on an indemnity basis – whether there are “exceptional circumstances” warranting indemnity costs – where the mother’s flagrant contravention of the parenting Orders and her secretion of her and the child’s whereabouts constitute “exceptional circumstances” – where mother ordered to pay father’s costs on an indemnity basis. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Latoudis v Casey (1990) 170 CLR 534 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Penfold v Penfold (1979 – 1980) 144 CLR 311 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Walton v McBride (1995) 36 NSWLR 440 Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029 |
| APPLICANT: | Mr Donaghey |
| RESPONDENT: | Ms Donaghey |
| FILE NUMBER: | LEC | 85 | of | 2007 |
| DATE DELIVERED: | 17 April 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 12 March 2012 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Orders
IT IS ORDERED THAT:
The mother’s Response filed 2 March 2012 is dismissed.
Paragraph 5 of the Application in a Case filed by the father on 15 February 2012 is dismissed.
The mother pay the father’s costs on an indemnity basis:
(a) Of and incidental to the Application in a Case filed 21 January 2011;
(b)Of and incidental to the Application in a Case filed 16 February 2011; and
(c) Of and incidental to the Application in a Case filed 1 April 2011.
The mother pay the father’s costs on an indemnity basis of and incidental to the Application in a Case filed by him on 15 February 2012. Such costs shall be confined to the preparation of the Application in a Case, written submissions and affidavit of the father, all of which were filed on 15 February 2012.
The mother pay, within 28 days the expenses invoiced by Telstra and Vodafone, and the expenses incurred with the private investigator hired by the father, in the amount of $10,248.46.
The father file and serve upon the mother within 14 days of these Orders, an affidavit deposing to the precise sums payable to his legal advisers in respect of each and all of the Applications set out in paragraph 2 above and the total of those sums and shall annex to that affidavit a copy of all such invoices and fee notes in respect of each such amount.
The mother pay, within 28 days of service of the said affidavit, the total sum deposed to therein.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Donaghey & Donaghey (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC85 of 2007
| Mr Donaghey |
Applicant
And
| Ms Donaghey |
Respondent
REASONS FOR JUDGMENT
The long, protracted history of this matter is set out in detail in the lengthy trial judgment delivered on 19 January 2011 (Donaghey & Donaghey (2011) 45 Fam LR 183). I particularly refer to paragraphs 254 and following of those Reasons. The ex tempore reasons provided in respect of Orders made by me on 6 April 2011 are also essential background for the instant application for costs which the father seeks in respect of some of those earlier proceedings.
It ought be noted that both parties represented themselves at the hearing before me in respect of costs.
On 15 February 2012, the father filed an Application in a Case seeking orders that the mother pay his “costs and expenses” associated with various events following the delivery of judgment on 19 January 2011. This was the fifth Application in a Case the father had filed since 19 January 2011 seeking, inter alia, a costs order against the mother but, as the father made clear, the most recent application subsumes those earlier applications. Those earlier applications were formally dismissed during that hearing.
At the hearing of this application, the father made it clear that he wished to abandon any application for costs with respect to the trial in December 2010. In that respect, the father had filed a Notice of Discontinuance on 22 February 2012 in respect of an Application in a Case filed 16 February 2011; that application sought an order that the mother pay his costs of “the Parenting Proceedings”.
Thus clarified, the father’s application (and his oral clarification of his position) made plain that he was pursuing an order that the mother pay the costs and expenses he incurred as a result of the mother’s failure to deliver the parties’ child, J, in accordance with my Orders of 19 January 2011.
As will shortly emerge, the chronology of events subsequent to the trial in December 2010 reveals (on the mother’s own admission) extreme recalcitrance on her part.
The Current Application
The father’s current Application in a Case seeks orders:
1.That the Respondent Mother pay to the Applicant Father his costs of and incidental to the Applications filed with the Court on the following respective dates on a Solicitor own client or indemnity basis or as determined by the Court;
1.1Application filed 21 January 2011 and heard on 21 January 2011;
1.2That part of the Application filed on 3 February 2011 and heard on 4 February 2011(and as amended by way of Orders of 21 February 2011), and in particular Order 11;
1.3Application filed on 16 February 2011 and heard on 7 March 2011, and
1.4Application filed on 1 April 2011 and heard on 6 April 2011 and as adjourned to 11 July 2011 and again until 10 November 2011.
2.That the Respondent Mother pay the Applicant Father his costs of and incidental to the Subpoenas issued on 11 February 2011 returnable on 23 February 2011 and as enlarged to 2 March 2011;
3.That the Respondent Mother pay to the Applicant Father his expenses associated with the location of the child the subject of the proceedings.
4.That the Respondent Mother pay the Applicant Father’s costs of preparing this Cost Application and the supporting Affidavit, and Written Submissions.
5.That the Respondent Mother pay to the Applicant Father his contribution towards the Independent Children’s Lawyers [sic] fee as it falls due, or in the alternative pay that requisite amount directly to the Independent Children’s Lawyer.
6.That the Respondent Mother pay to the Applicant Father the costs associated with the representation of the Father by way of a Town Agent on the Return of Subpoenas issued by the Independent Children’s Lawyer to Interrelate Family Centre, … namely on 2 November 2011, and 15 February 2012.
In terms of the fee paid or payable to the Independent Children’s Lawyer, counsel for the Independent Children’s Lawyer clarified during the hearing that the father, along with the mother, made a single payment to Legal Aid Queensland prior to the trial in December 2010.
The father indicated that he would not be pursuing paragraph 5 of his Application in a Case. It will formally be dismissed.
The mother otherwise resists the father’s Application for costs.
The Respondent Mother’s Position
The mother’s position can be summarised from the following excerpts taken from her written submissions, filed 2 March 2012 :
1.Following the erroneous Family Court decision made by Murphy J and handed down 19 January 2011, for the safety and protection of my son, I chose not to hand [the child] over to the father 21 January 2011 pursuant to Orders.
2.Unfortunately, the Family Court had left me with little alternative, but to follow through with my intended actions, as stated both in the courtroom and to the Expert witness at her report interview in October 2010.
3.The decision by the Court to stop a six year old child from the care of his mother, who in those six years, had been apart approximately eight (8) nights, when there had been no evidence of lying, nor coaching by the mother or others, is the most extreme and unsatisfactory outcome for not only the child, but the mother, the extended family, the friends of all…
…
4.The mother should not be responsible for any costs and indeed should be reimbursed for her costs in following accepted child protection guidelines set down by Police and Child Protection Agencies.
Additionally, the mother and child should be reimbursed for the emotional suffering and torment exposed to them by the decision of the Court…
…
13.I submit that the Court will find that there are serious justifying circumstances not to support a costs order against the mother at all.
The mother did not raise the prospect of the father paying her costs in her written submissions. However, the Response filed by the mother on 2 March 2012 seeks the following orders:
1. …the Applicant father…pay to the Respondent Mother any reimbursement of her costs of and incidental to on [sic] those same respective dates, at an amount deemed appropriate by the court.
1.1Application filed and heard 21 January 2011.
1.2Application filed 3 February, heard 4 February 2011.
1.3Application filed 16 February and heard 7 March 2011.
1.4Application filed 1 April, heard 6 April and then adjourned 11 July, then again 10 November.
…
7.…the Applicant father reimburse the Respondent Mother for all subsequent legal fees, health care, loss of her regular professional employment, and associated costs, including any associated extensive telephone charges, travel expenses as well as accommodation required for herself and son [J] since 21 January 2011, as may be determined by the Court.
8.In the event that the Court should find any affirmative legal reason for such extensive claims by the father, then the Family Court of Australia be solely responsible for costs accrued by the mother and father, since 21 January 2011 because of the sheer lack of common sense and reasoning in the decision handed down 19 January 2011 and most importantly, for the lack of compliance with the directives of the current Family Law Act.
As the following summary of post-trial events will reveal, the mother, in proposing these orders is, in effect, seeking to be reimbursed, either by the father or the Court, for the costs and expenses incurred as a result of her flagrant contravention of the Orders made by me on 19 January 2011.
There is no foundation for any such order and, for the Reasons which follow, her Response will be dismissed.
History of Proceedings Post-Trial
The Orders made by me on 19 January 2011 placed the child into his father’s care. To give effect to that order, I also ordered that the mother present the child to the manager of the Child Dispute Services at this Court on 21 January 2011. The mother did not deliver the child as ordered. On that date, the father filed an urgent Application seeking a recovery order for the child.
The child having not been recovered, the father filed an Application in a Case on 3 February 2011 seeking, inter alia, orders pursuant to s 67ZN of the Family Law Act 1975 (Cth) (“the Act”), a location order and a publication order. The father also sought orders requiring the mother’s sisters to give evidence of their knowledge of the mother’s whereabouts.
This Application was listed for hearing before Forrest J on 4 February 2011. His Honour subsequently made Orders as sought by the father, including that the mother’s sisters give evidence “before the Court to assist in the disclosure of whereabouts of [J] and the mother…”.
The Application came back before me on 7 March 2011, at which time the mother’s two sisters appeared, pursuant to subpoenas filed on behalf of the father on 14 February 2011. Both sisters insisted they knew nothing that would assist in the location of the child.
On 27 March 2011, (that is, about ten weeks post-Order) Queensland Police intercepted the mother’s vehicle and the child was subsequently collected by his father from the … Police Station.
On 1 April 2011 the father filed an Application in a Case seeking to amend the Orders made by me on 19 January 2011 in light of the mother’s flagrant contravention of those Orders.
That Application came before me on 6 April 2011 at which time the mother was represented by counsel and the father by his solicitor (via telephone). I should interpose that the Orders made by me on 19 January 2011 provided for an initial moratorium on time between the child and his mother, followed by a progressive schedule of supervised time, leading, ultimately, to unsupervised time each alternate weekend. However, as a result of the mother’s contravention of those Orders, by the time the child had entered into his father’s care, the contemplated moratorium period had passed and, pursuant to the original Orders, the mother was to spend supervised time with the child each alternate Saturday.
The effect of the orders sought by the father in his Application in a Case filed 1 April 2011, was an immediate suspension of the time between the child and the mother and no resumption of that time. I ultimately made Orders amending the 19 January 2011 Orders, with the effect that time between the child and his mother was suspended until 29 April 2011 and supervised time between the mother and the child was to occur for two hours each alternate Saturday, commencing 30 April 2011.
I also included in the 6 April 2011 Orders, a request that a report be prepared by Ms B, Family Consultant, in respect of, inter alia, the supervised time between the child and his mother. The matter was adjourned to 11 July 2011, to enable the child to spend supervised time with his mother, and to have a report prepared by the family consultant. The costs of that Application in a Case were reserved.
The matter came before me again on 11 July 2011, at which time the mother represented herself. For reasons which should be plain, I remained very concerned about the child and the impact of the events (and Orders) upon him. I made Orders to facilitate the preparation of an updated family report and adjourned the matter to 10 November 2011.
On 10 November 2011, following a hearing at which the mother represented herself, and the father was represented by his solicitor, I made Orders varying the 6 April 2011 Orders, so as to enable the mother to spend not less than 2 hours of supervised time with the child each alternate Saturday. I also made Orders for the father to file and serve any Applications for final and/or interim parenting orders he might seek by 17 February 2012. The mother was to file a Response by 2 March 2012.
Neither party has filed any application for parenting orders and no application/s are on foot.
The father’s Application for costs filed 16 February 2011 was adjourned to 12 March 2012 and Orders were made for the parties to file their material with respect to that Application.
Costs and the Family Law Act 1975 (Cth)
Section 117(1) of the Act:
…expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117(2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
(Penfold v Penfold (1979 – 1980) 144 CLR 311 at 315).
It is important, in my view, to note that the plurality in Penfold held (at 315 - 316):
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs, there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised. … Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs. [Citations omitted]
The Court is given the power to award costs upon a finding that “there are circumstances that justify it in doing so” (s 117(2)). The matters that might justify a central finding are at large (s 117(2A)(g)) but must include regard being had to a number of specified matters (s 117(2A)(a)-(f)).
It is plain that s 117(2A) does not prescribe that more than one factor must be present or that any one factor has more or less weight than any other. The statutory factors are each and all matters which inform the overall discretion inherent within the section (PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.)
Of particular relevance here is the fact that modest, or even poor, financial circumstances, is not determinative of the issue. Were it otherwise, the discretion inherent in the section would be curtailed and one of the enumerated factors would preclude appropriate consideration being give to all factors relevant to the discretion.
Section 117(2A) factors
Section 117(2A)(a) – Financial circumstances of the parties
The mother contends that she is financially unable to meet an order for costs in favour of the father. The mother deposes, in an affidavit filed 2 March 2012, to being unable to “work in what was my [health services] practice” as a result of the “emotional pain of [the] enforced separation [from [the child]] and erroneous Court verdict.”
The mother also asserts that she has “expended my entire life savings and capital resources” on, inter alia, “protecting my son” and “defending my legal stance and actions in the course of protecting my son.” The mother refers in her written submissions to having had to sell “horses used in her longstanding sporting interest” as a result of “her inability to work in the successful [health services] practice the mother held for over 25 years”. The mother indicated at the hearing that she continues to draw an income from a health services business run from her home.
The father also highlights the financial impact the proceedings have had on him in his affidavit filed 15 February 2012. He also deposes to being solely responsible financially for the child since he was placed in his sole care in March 2011. Additionally, the father states that he has a significant debt of almost $60,000 to his previous solicitors.
The father does not provide an invoice from his solicitors, nor any other evidence from them to support the figure contended for. Even absent a finding as to the specific quantum, I accept that the father has incurred significant costs; he has been represented by a solicitor at all bar two of the numerous hearings between 21 January 2011 and 12 March 2012 and material has been prepared on his behalf. By way of contrast the mother has represented herself (at those hearings which she has attended) on all bar one occasion.
Section 117(2A)(c) – the conduct of the parties in relation to the proceedings
The father submits that:
…the Court can find that the Mother has conducted herself with complete disregard to the Court proceedings and even upon [the child’s] return to his Father the Mother has failed to facilitate various events as ordered by the Court including the failure by her to attend Report Interviews on 9 June 2011.
With regard to the interview on 9 June 2011, I refer to a memorandum prepared by Family Consultant, Ms B (and provided to each of the parties), in which she states:
On 9 June 2011, [the father], his friend [Ms I] and [the child] attended, but [the mother] did not. Attempts were made to contact the mother on her known home and mobile number, but to no avail.
The mother failed to deliver the child on 21 January 2011. This was no passive resistance. On her own admission she actively took steps to secrete her and the child’s whereabouts. Obviously (as it seems to me) flagrant disregard of court orders and the taking of active steps to subvert court orders is highly relevant.
It is, in my view, perfectly understandable that parties involved in parenting proceedings in this Court would view an Order that is contrary to their views and entrenched beliefs as wrong, in some cases, even positively harmful to their child/ren. This is all the more so when allegations as serious as those made in this case against the father are involved.
But, the integrity of this system depends on compliance with the Orders made by the Court. This is no more or less true for parenting proceedings than it is for property proceedings, or in general litigation. The rule of law central to the healthy functioning of a democracy has no less application in this Court or in family law more generally.
The mother’s flagrant disregard for the Orders made by this Court and the subsequent chronology of events is central to the father’s application for costs. It is also relevant that the mother in fact did what she always threatened to do during the trial, that is, not comply with any Orders that would see the child spend unsupervised time with his father.
Section 117(2A)(d) – Proceedings necessitated by failure to comply
The father submits that “[t]he proceedings before the Court since 19 January 2011 have been necessitated by the Mother’s failure to comply with the Court Orders of 19 January 2011.” So much is plain from the earlier summary of events post-trial.
The mother herself has admitted, on numerous occasions, and to numerous people, that she consciously breached the Orders of 19 January 2011. Indeed, at the hearing before me on 10 November 2011, the mother declared “[t]hree times I’ve breached court orders, your Honour, three times…And you still haven’t gaoled me.” It was not entirely clear what the mother was seeking to suggest. What was not said, at the time, but which should be clear to rational minds, is that the child’s best interests are not served by having a mother in jail nor are the interests of justice necessarily served by complying with a litigant’s apparent desire to become a martyr.
As the father submits, the mother, during the trial in December 2010, “made it clear that she would not comply with the Court’s Orders.” As I said in my trial judgment:
242.I am worried about the prospect of the mother “holding over” both initially and subsequently, when time is ordered for [the child] to spend time with her. I consider that to be very likely; the depth and intensity of the mother’s beliefs and feelings point strongly to that conclusion…
That the mother had previously indicated she would breach any Order requiring her to deliver the child into the father’s care should not minimise the effect of the conduct for the purposes of s 117(2A). Nor should such “warnings” detract from the fact that the mother’s flagrant contravention of the Orders made by me on 19 January 2011 was the catalyst for subsequent proceedings in this Court. That those proceedings were essential is self evident.
I am satisfied that the proceedings from 21 January 2011 to 12 March 2012 were necessitated by the failure of the mother to comply with the Orders made by me on 19 January 2011. More specifically, I accept that the mother’s contravention necessitated the:
·Application in a Case filed by the father on 21 January 2012;
·Hearing before me on 21 January 2012;
·Issuing of subpoenas to Telstra and Vodafone, each of which have invoiced the father;
·Application in a Case filed by the father on 16 February 2011;
·Hearing before me on 7 March 2011;
·Application in a Case filed by the father on 1 April 2011;
·Hearing before me on 6 April 2011;
·Hearing before me on 11 July 2011;
·Hearing before me on 10 November 2011;
·Application in a Case filed by the father on 15 February 2012; and
·Hearing before me on 12 March 2012.
I have excluded from this list the Application in a Case filed by the father on 3 February 2011 and the hearing of that Application before Forrest J on 4 February 2012; his Honour made an Order on 4 February 2012 that the mother pay the father’s costs of and incidental to that Application.
In addition, the father seeks an order that the mother pay the expenses of a private investigator hired by him to help locate the child.
Section 117(2A)(e) - Whether one party has been wholly unsuccessful
The father submits that the mother has been “wholly ‘unsuccessful’ in relation to the Applications before the Court on 21 January 2011 … and the Father submits that the outcome of the proceedings of 7 March 2011 could arguably have been said to have been ‘successful’ for the Father.”
The Father further submits that the Orders made by me on 6 April 2011 were in accordance with his position at that hearing.
I accept this submission in respect of the hearings on 21 January 2011 and 7 March 2011; a consideration of the Orders made on those dates plainly reveals that the father was wholly successful in obtaining the orders sought by him at each of those hearings. In respect of the hearing on 6 April 2011 however, the father was unsuccessful in seeking that time between the mother and the child did not recommence at all.
What costs are payable?
The issue of what is comprehended by the word “costs” was considered by the High Court in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184. Hayne J said at [91]:
On its face, then, the reference in s117 to “costs” is a reference to “costs” as that word is ordinarily understood in the law: the amount which the person to whom the order is directed must pay to some party to the litigation as partial indemnity for the professional legal fees and expenses incurred by the party in the course of the litigation.
Similarly, Gaudron J observed (at [2]):
The power conferred by s 117(2) of the Family Law Act 1975 (Cth) (the Act) is a power to “make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just”. That power is not simply a power to make an order for costs. Were it so, it would only authorise orders to indemnify for “costs actually incurred in the conduct of litigation”. However, a power to make an “order as to costs” is a broader power.
[Footnotes omitted. Italics in original]
Kirby P (as his Honour then was), observed in Walton v McBride (1995) 36 NSWLR 440 at 474 “[i]n my view ‘costs’ is not to be restricted to ‘legal costs and disbursements’”.
At the time the father hired the private investigator, proceedings for recovery of the child were well underway. At that stage, Orders had not proved successful in locating the child. I am satisfied that the expenses associated with the private investigator constituted “expenses incurred by [the father] in the course of the litigation” and that an order can be made that the mother pay the costs of the private investigator (Re JTT at [91]).
I am similarly satisfied that the expenses incurred by the father as a result of subpoenae issued to Telstra and Vodafone, both of which were issued as part of the recovery and location proceedings, constitute “expenses incurred by [the father] in the course of the litigation.”
For the same Reasons as those advanced above, I am of the view that the mother should pay the father’s costs of the application for costs filed by him on 15 February 2012. At the hearing of that application, the father represented himself. He did, however, indicate that his previous solicitors had prepared the Application in a Case, written submissions and supporting affidavit for him. So much is plain from the documents themselves and is consistent with the fact that the father’s solicitors filed a notice of ceasing to act after those documents were filed. I am satisfied that the mother ought to pay the father’s costs of and incidental to the Application in a Case filed by him on 15 February 2012, however, such costs ought to be confined to the preparation of that application and the supporting material and the attendance thereto.
The father also seeks an order at paragraph 6 of his application for costs, that:
6.That the Respondent Mother pay to the Applicant Father the costs associated with the representation of the Father by way of a Town Agent on the Return of Subpoenas issued by the Independent Children’s Lawyer to Interrelate Family Centre, … namely on 2 November 2011, and 15 February 2012.
As the father himself identifies, those subpoenae were issued by the Independent Children’s Lawyer. The precise purpose for the issuing of those subpoenae is not immediately apparent and it seems to me that the mother should not be responsible for the father’s costs associated with the issue of those subpoenae by the Independent Children’s Lawyer.
The mother’s application for costs
As earlier mentioned, the mother seeks an order that the father pay her costs of and incidental to the father’s various Applications in a Case. Alternatively, the mother proposes “[i]n the event that the Court should find any affirmative legal reason for such extensive claims by the father, then the Family Court of Australia be solely responsible for costs accrued by the mother and father, since 21 January 2011…”.
The mother provides no basis for the costs orders she proposes be made against either the Court or the father.
It is not apparent what legal costs (or other expenses) the mother has incurred. Second, any legal costs incurred by the mother after 21 January 2011 have arisen as a result of her contravention of the Orders of 19 January 2011. Finally, the mother provides no reasons, referable to any of the factors enumerated in s 117(2A), as to why the father should bear the mother’s costs (if any) of legal proceedings that have arisen as a result of her own conduct.
The mother’s claim that she and the child ought be “reimbursed” for the “emotional suffering and torment exposed to them by the decision of the Court,” has no foundation in law.
So too, in respect of the mother’s claim that the Court ought to bear the costs she and the father have incurred, I am unable to make such an order. There is no provision in any legislation that I am aware of providing for a litigant to be reimbursed his or her legal costs by this Court.
Costs on an indemnity basis
The father seeks that costs be awarded “on a Solicitor own client or indemnity basis or as determined by the Court.” In written submissions filed on 15 February 2012, the father asserts that “the Costs Order should be for indemnity costs…”. His affidavit exhibits the costs agreement between him and his previous solicitors (see r 19.08(3), Family Law Rules 2004 (“the Rules”)).
Various expressions have been used to describe generically the types of circumstances that might be seen as justifying an order for indemnity costs. Epithets such as “exceptional” or “out of the ordinary” have been used.
In outlining a number of examples where a Court might properly consider an award of indemnity costs, Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 gave as an example “the making of allegations which ought never to have been made or the undue prolongation of the case by groundless contentions” [citation omitted].
It is important to note, however, that the categories of cases giving rise to an indemnity costs order are not closed (see Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029 at 87,471 where the Court said:
All that is required is that the Court asked to exercise the discretion be satisfied that some ‘particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis’) [citing Sheppard J].
I am acutely aware that costs (including, in particular, indemnity costs) are not awarded as a punishment (Latoudis v Casey (1990) 170 CLR 534 at 543). Equally, however, conduct that might otherwise give rise to a punishment can be, and here plainly is, directly relevant to a consideration of indemnity costs.
I am of the view that the mother’s flagrant contravention of the Orders of 19 January 2011, and her subsequent secreting of her and the child’s whereabouts, and the considerable difficulties encountered and expense incurred as a result of (properly) pursuing legal remedies in respect of that conduct constitutes “exceptional circumstances” so as to warrant any order for costs being made on an indemnity basis.
Quantum
The long and tortuous process of litigation in which the father has been involved, including, plainly enough, the expenditure of very significant sums in legal fees, has seen the father represent himself at the hearing before me on 7 March 2012 and the hearing before me on 12 March 2012. The father was represented at all other hearings.
Although I am firmly of the view that the wife should pay indemnity costs, she should only do so in respect of reasonable costs properly incurred by the father.
The father provides precise sums, evidenced by invoices issued to the father by each, for the subpoenae issued to Telstra ($1500) and Vodafone ($795.46) and for the work completed by the private investigator ($7953). It is not suggested that any of those sums are, in respect of their quantum, unreasonable. No other evidence suggests they are. I will accordingly make orders that the mother reimburse the father $10,248.46 in respect of those sums.
As to legal costs, however, despite helpful written submissions the Court does not have evidence before it of the precise sums incurred by the father in respect of his legal fees. Accordingly, it is not possible to make an order for a specific amount of money (see r 19.18(1)(a), the Rules).
I propose to order that, within 14 days of these Orders the father file and serve an affidavit deposing to the precise sums payable to his legal advisers in respect of each and all of the applications to which these Orders pertain and to annex to that affidavit a copy of all fee notes or invoices pertaining to those costs and disbursements.
The affidavit will total those amounts and the mother will pay that total amount together with the expenses earlier referred to.
Conclusion
Having regard to all of the relevant factors to which I have made reference, I consider that the mother should pay the father’s costs on an indemnity basis:
a)Of and incidental to the Application in a Case filed 21 January 2011;
b)Of and incidental to the Application in a Case filed 16 February 2011; and
c)Of and incidental to the Application in a Case filed 1 April 2011.
The mother shall also pay the father’s costs on an indemnity basis of and incidental to the Application in a Case filed by him on 15 February 2012. However, such costs shall be confined to the preparation of the Application in a Case, written submissions and affidavit of the father, all of which were filed on 15 February 2012.
The mother shall also pay the father’s expenses invoiced by Telstra and Vodafone, and the expenses incurred with the private investigator hired by the father (a total of $10,248.46).
I will order that the father file and serve upon the mother within 14 days of these Orders, an affidavit deposing to the precise sums payable to his legal advisers in respect of each and all of the Applications to which these Orders pertain and the total of those sums and to annex to that affidavit a copy of all fee notes or invoices directly relevant to those costs and disbursements.
I will order that the mother pay, within 28 days of service of the said affidavit, the total sum deposed to therein.
I will dismiss the mother’s Response filed 2 March 2012.
I order accordingly.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 17 April 2012.
Associate:
Date: 17 April 2012.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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