GARROD & DAVENORT - [2021] FamCA 276

FAMILY COURT OF AUSTRALIA

GARROD & DAVENORT

[2021] FamCA 276

FAMILY LAW – COSTS – parenting proceedings – where father continued to deny allegation of physical and emotional abuse of the mother and other adult women until after mother’s case was closed and then made admissions contrary to earlier denials – where father’s conduct of the trial in this matter greatly increased the mother’s costs

FAMILY LAW – COSTS – where mother failed to make out her case in relation to the father having assaulted the parties’ daughter

FAMILY LAW – COSTS – where court satisfied that circumstances justify an order for costs – where relevant factors considered – where father was wholly unsuccessful in obtaining time with the parties’ daughter

FAMILY LAW – COSTS – costs awarded in the sum of $45,000.

APPLICANT:

Ms Garrod

RESPONDENT:

Mr Davenort

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

4343

2012

DATE DELIVERED:

6 May 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

5 February 2019 and Written Submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Adelaide Family Law

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Dixon Gallasch Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Excused from appearing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That the respondent father pay the applicant mother’s costs fixed in the sum of $45,000.00 (forty five thousand dollars).
Stay of 30 days.
The applicant mother provide a copy of this Order and my reasons for judgment to the Proper Officer of the Legal Services Commission of South Australia.
Otherwise the application of the mother for costs and the response of the father thereto be and is hereby dismissed.

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 Garrod & Davenort 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 MELBOURNE

FILE NUMBER: ADC 4343 of 2012

Ms Garrod

Applicant

And

Mr Davenort

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

On 12 October 2018 I made final parenting orders in relation to B who was 8 years old following 15 days of hearing in two tranches between 13 February and 24 November 2017.
Pursuant to the parenting orders the father has no face to face time or communication with B and could not apply for leave to make a further parenting application until October 2020.
Paragraph (14) of these orders provided that in respect of costs:
(a)Any party wishing to make an application for costs…

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 GARROD & DAVENORT

Details

AGLC: GARROD & DAVENORT [2021] FamCA 276
Case: [2021] FamCA 276
Decision Date

CaseChat Overview and Summary

In *Garrod & Davenort* [2021] FamCA 276, the Family Court of Australia considered an application for costs following final parenting orders. The applicant mother sought costs against the respondent father, who opposed the application. The court was required to determine whether circumstances justified departing from the general rule that each party bears their own costs, and if so, to what extent.

The court's determination of the legal issues involved an assessment of various factors under section 117(2A) of the *Family Law Act 1975* (Cth). These factors included the financial circumstances of both parties, their conduct in relation to the proceedings, whether either party had been wholly unsuccessful, and any offers of settlement. The court also considered the impact of legal aid received by both parties.

Justice Bennett found that the father's conduct throughout the proceedings significantly increased the mother's costs. Specifically, the father consistently denied allegations of physical and emotional abuse against the mother and other adult women for six years, only admitting to them late in the trial. This prolonged denial necessitated the mother proving these allegations, thereby extending the hearing and increasing legal expenses. While the mother was unsuccessful in proving an allegation that the father had assaulted their daughter, the court found that the father was wholly unsuccessful in obtaining time with the child. Despite the strained financial circumstances of both parties and the fact that both had received legal aid at various stages, the court was satisfied that the father's conduct and lack of success justified an order for costs in favour of the mother.

Consequently, the court ordered the respondent father to pay the applicant mother's costs fixed in the sum of $45,000. The mother was also directed to provide a copy of the order and reasons to the Proper Officer of the Legal Services Commission of South Australia.

Orders