Field and Bowers (No. 2)
[2012] FamCA 376
FAMILY COURT OF AUSTRALIA
| FIELD & BOWERS (NO. 2) | [2012] FamCA 376 |
| FAMILY LAW – COSTS – Husband was wholly unsuccessful – Costs awarded to wife |
| Family Law Act 1975 (Cth) |
| Charles and Charles [2007] FamCA 276 Colgate-Palmolive v Cussons Pty Ltd [1993] 46 FCR 225 Hackshaw and Hackshaw [2011] FamCA 570 Munday v Bowman (1997) FLC 92-784 |
| APPLICANT: | Ms Field |
| RESPONDENT: | Mr Bowers |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | TVC | 939 | of | 2009 |
| DATE DELIVERED: | 24 May 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | By way of written submissions |
SUBMISSIONS RECEIVED FROM
| SOLICITOR FOR THE APPLICANT: | Lee Turnbull & Co |
Orders
That the husband pay the wife’s costs of $53,711.50 and her out of pocket expenses of $259.85.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Field & Bowers (No. 2) 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 MELBOURNE |
FILE NUMBER: TVC 939 of 2009
| Ms Field |
Applicant
And
| Mr Bowers |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 2 April 2012, I made an order relating to parenting matters paragraph 10 of which provided that if anybody was going to make an application for costs, the application had to be filed and served by 4 May 2012 and any response thereto by 18 May 2012.
An application by way of written submission along with a request for costs was made and filed in the Townsville Registry of the Court on 4 May 2012 by the wife.
The submission shows that it was served by email upon the husband and an attempt was made by normal post but the letter was returned unclaimed. It is asserted and I have no reason to doubt, previous correspondence involving the solicitor for the wife and the husband was conducted by email. The husband has not filed any Notice of Change of Address for Service and no doubt would have been aware of the existence of the order. I am satisfied that he has been aware of the application for costs.
As at the close of business on 18 May 2012, no response has been filed by the husband.
There is no reason why the wife’s application cannot proceed.
The application seeks costs of $53,711.50 and out of pocket expenses of $259.85. It is not clear how those were calculated but the submission sought indemnity costs. A copy of the wife’s cost agreement (if any) was not filed with the application.
As a preliminary issue, it was submitted by the wife that the provision of s 117AB of the Family Law Act 1975 (Cth) (“the Act”) applied. Section 117AB provides that in proceedings under the Act before a court, if the court is satisfied that a party to the proceedings knowingly made a false allegation or statement, the court must make an order that that party pay some or all of the costs of the other party. The Independent Children’s Lawyer in this case who is a party, did not seek costs.
In Hackshaw and Hackshaw [2011] FamCA 570 Murphy J observed that if the terms of s 117AB(1) are met, then the general principle that each party shall bear their own costs no longer applies. His Honour went on to say that a costs order of some type must be made. With respect, I agree.
At paragraph 52 of the reasons for judgment, I observed that the husband was not a truthful witness. In Charles and Charles [2007] FamCA 276 I observed that this untruthfulness to satisfy s 117AB had to be knowingly done. I am satisfied on what I said in the reasons for judgment that the husband knew that what he was saying was not true. Accordingly, an order for costs must be made.
Section 117(2A) provides relevant criteria for consideration about what order should be made.
The wife submitted that this was a case which was special or unusual in the terms set out by Sheppard J in Colgate-Palmolive v Cussons Pty Ltd [1993] 46 FCR 225 and as such, it justified an order for indemnity costs. The submission went on to refer to Munday v Bowman (1997) FLC 92-784 in which Holden CJ considered the exercise of discretion for an order for costs on an indemnity basis where the party who commenced the proceedings or continued them, should have known that they had no chance of success. His Honour said that the action must be presumed to have been commenced or continued for some ulterior motive or because of the wilful disregard of known facts.
It was submitted that the husband was not legally represented at the trial but he did have the benefit of legal advice earlier in the proceedings. In addition, this case was conducted through the Federal Magistrates Court and prior to being transferred to this Court, a judgment was given by Coker FM in which his Honour made clear that the evidence that the husband was relying upon did not support the allegation that he was making to found the order that he was seeking. Other witnesses such as the family consultant had also observed the same evidence and made the same observation. At the outset of the proceedings, I made clear that I was not prepared to simply watch a video because the husband wanted me to unless he could show that it was of some probative value. He asserted that he would prove that it had probative value but clearly failed to do so. This is a case where that evidence should never have been called and much time was wasted both in this Court and in the Federal Magistrates Court.
Additionally, the husband was involved in a number of applications before the Federal Magistrates Court including one to remove the Independent Children’s Lawyer. He failed to comply with orders necessitating the wife returning upon an overholding. His approach prolonged the proceedings. It was submitted by the wife that an order for costs had been made against the husband and he had not complied by paying it.
It goes without saying that in the circumstances which ultimately culminated in the orders I made, the husband was wholly unsuccessful.
Counsel for the wife in his written submission referred to the fact that the husband was in full-time employment at the time of trial whereas the wife was unemployed as well as an undischarged bankrupt arising out of a business venture which on the evidence, had involved both husband and wife.
Leaving aside the mandatory nature of s 117AB, this is a case where the principle that each party should pay their own costs should be departed from because of the justifiable circumstances to which I have just referred.
The husband stubbornly argued what was unnecessary litigation. He was ill-prepared because his focus was on a discrete issue about which he had been warned a number of times. This is a case where there are special circumstances that justify an order for indemnity costs.
Accordingly I make an order that the husband pay the wife’s costs of $53,711.50 and her out of pocket expenses of $259.85.
I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 May 2012.
Associate:
Date: 24 May 2012
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