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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Field and Bowers (No. 2)

Details

AGLC: Field and Bowers (No. 2) [2012] FamCA 376
Case: [2012] FamCA 376
Decision Date

CaseChat Overview and Summary

This matter concerned an application for costs by the wife, Ms Field, against the husband, Mr Bowers, in proceedings before the Family Court of Australia. The wife sought costs totalling $53,711.50, plus out-of-pocket expenses of $259.85. The application was made by way of written submissions, with the husband failing to file a response.

The primary legal issue before the Court was whether an order for costs should be made against the husband, and if so, on what basis. Specifically, the Court considered the application of section 117AB of the *Family Law Act 1975* (Cth), which mandates costs orders where a party knowingly makes a false allegation or statement. The Court also considered whether special or unusual circumstances justified an order for indemnity costs, rather than the usual order that each party bear their own costs.

The Court found that the husband had knowingly made false statements, satisfying the criteria for a costs order under section 117AB. The Court reasoned that the husband had been untruthful in his evidence, and that this untruthfulness was known to him at the time. Furthermore, the Court determined that special circumstances justified departing from the general rule regarding costs. These circumstances included the husband's wholly unsuccessful position, his prolonged and unnecessary litigation, his failure to comply with previous court orders, and his wilful disregard of known facts and warnings from the Court and the Federal Magistrates Court. The Court noted that the husband had been warned on multiple occasions that his evidence did not support his allegations, yet he persisted.

Accordingly, the Court ordered that the husband pay the wife's costs in the sum of $53,711.50, together with her out-of-pocket expenses of $259.85.

Orders