Fortnum & Fortnum

[2007] FamCA 59

FAMILY COURT OF AUSTRALIA

FORTNUM & FORTNUM [2007] FamCA 59

FAMILY LAW - COSTS

APPLICANT: Mrs Fortnum

RESPONDENT: Mr Fortnum

INDEPENDENT CHILDREN’S LAWYER: ROBERTSONS SOLICITORS

FILE NUMBER: SYF 631 of 2002

DATE DELIVERED: 22 January 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 22 January 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr BAIRD of DGB LAWYERS

RESPONDENT: IN PERSON

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER

Mr ANDERSON

ROBERTSONS SOLICITORS

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 631  of 2002

Mrs Fortnum

Applicant

And

Mr Fortnum

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. In these proceedings both the wife and the separate representative have sought costs.  The hearing of children's issues relating to the parties' 9 year old son, L.  The husband had previously been married.  His daughter from his prior marriage gave evidence in the proceedings.  She said, and I accepted, that the husband had raped her and committed other indecencies and atrocities upon her on numerous occasions and had encouraged or acted in concert with a friend who had done the same.

2. I further held that the husband, if he had not already started, was likely to start, if given the opportunity, to treat L in much the same way as he had treated his daughter.  I further held that a son from his first marriage had been raped by the husband at least twice.  These were not findings relating to undue risk to a child; my findings were of fact.  In making those findings, I applied the test of Briginshaw, and therefore, had a high degree of satisfaction about the facts which I found to be true in this respect. 

3. In those circumstances, on the wife bringing an application relating to children's orders, the husband should not have defended them.  He should not have sought orders for what was, in effect, shared care, equally shared care or nearly equally shared care, and telephone and other contact with L.  He should have known that his application would be bound to fail because of what he had done or should fail because of what he had done. 

4. During the hearing, he was unrepresented so he suffered no costs.  Both the wife and the child's representative were represented and incurred costs, substantial cost because the trial took a great deal of time.  Most of that time at the trial was taken up with the determination of the facts that I have already referred to relating to abuse of the husband's daughter and son from his first marriage as well as by evidence of the potential he has to harm L if given any contact with him. 

5. During that lengthy period when the husband cross-examined his daughter, he appeared to gain great satisfaction out of it.  In fact, he was more inclined to try to justify his theory that his daughter’s mother did not really care for her, than in trying to test her in relation to the truth of her allegations; the inference being that in some way or other she must have deserved what happened to her because she was not lovable.

6. I have told the husband that my tentative view in these circumstances has been to order indemnity costs against him, notwithstanding the fact that neither party asked me for those costs. They simply sought orders for costs. The husband put nothing of substance before me that would make me alter my mind in his address. However, he has filed a response to the application for costs and a financial statement.  The response really raises matters which should be dealt with on appeal, and I note that he has appealed, although that fact bears no relationship to my decision in these proceedings. 

7. His financial statement is highly relevant.  It shows that he is a pensioner who does not have any form of income apart from his pension; that his total average weekly income is $311 per week; that he has property of only $400; and debts of $7000.  His rent is $140 a week.  One might feel that an application for costs in those circumstances, particularly considering his age, has been in vain and that I should not make a costs order against him.  However, I think that there are other considerations which I shall come to.

8. I am required by s.117 of the Family Law Act to order that each party bear his or own costs unless I am opinion that there are circumstances which justify doing otherwise. In such case, I can make an order for costs which I consider just. In coming to decide what order to make; that is, in considering what order should be made, I must have regard to the matters listed in s.117(2A). I shall do so.

9. In relation to the financial circumstances of each of the parties, I have already mentioned the husband's financial circumstances.  The wife has not put any financial statement before the Court.  She sought an adjournment to do so.  That adjournment was refused on the ground that further costs would be incurred because of it, incurred to both to the wife and possibly to the separate representative. If I would have come to the view that her circumstances are relevant, I might have, at a later stage in the proceedings, allowed an adjournment so she could put this statement of financial circumstances before the Court. It is my view that her circumstances are not irrelevant, but that it does not matter how substantial they are, the order against the husband should be the same.  I would make the order that I have borne in mind that I might make even if the wife could easily afford the costs that she incurred. 

10. There are no other relevant matters which are contrary to the husband's interests and are mentioned in either s.177(2A) (b), (c) or (d) as well as in (f).  However, I think it is perfectly fair to conclude that the husband has been wholly unsuccessful in the proceedings.  He was restrained from having any contact of any description with L and, as I have already suggested, there is one other matter which I consider to be relevant in relation to an order for costs. It is the husband's conduct, not in relation to the conduct of the proceedings so much, but his conduct in actually defending the proceedings knowing the circumstances, and the conduct which amounts to those circumstances which I have already referred to. 

11. I should say that in relation to s.117(2A)(c), that could be regarded as referring to conduct of the parties to the proceedings in relation to the proceedings. So (c) does have some relevance.

12. I think that, even if it would be the case that the wife suffers no financial hardship, that there should be an order for indemnity costs against the husband despite his real impoverishment and the unlikelihood that he will be able to meet those costs in full and a higher level of likelihood, that, if he does pay some of the costs that are ordered against him, he will suffer quite considerable hardship in having to do so, there is a need for the Court to take a stance. There is a need to make the public understand that the Court is interested, and will act to do everything it can, to protect the welfare of children.  In my view, in this case, there is a general public interest in the making of an indemnity costs against the husband in view of the findings that I made to discourage others from pursuing a similar course to that of the husband, and I shall do so.

13. I note that another reason, of course, is that the husband suffered no costs or no substantial costs because he was not represented through the long hearing.  I note that in making this order the costs of the children's representative are $21,445.90 and that the costs of the wife are about $102,000. I note that of that $21,000 the wife has paid $1500, but in any event, I propose that costs be taxed. 

14. So I shall order that the husband pay both the wife's costs and the separate representative’s (now the Independent Children’s Lawyer) costs on an indemnity basis as agreed or taxed within one month.  And those costs shall include the costs of today's hearing.

IT IS ORDERED:

1. That the husband pay both the wife’s costs and the children’s representative’s costs, who is now the independent children’s lawyer, on an indemnity basis as agreed or taxed within one (1) month such costs shall include the costs of today’s hearing.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FORTNUM & FORTNUM