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 | of | 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 make file and serve such application within twenty one (21) days and support it by evidence of an estimate of costs claimed including but not necessarily limited to, a calculation of such costs in accordance with the itemised scale of costs at schedule 3 to the Family Law Rules 2004 (Cth.)
(b)Any party who is served with an application for costs against him/her file and serve an affidavit setting out any dispute as to quantum of costs within fourteen (14) days of service upon him/her of the application.
(c)My Associate advise the parties of the listing of this matter for oral submissions as to liability for costs (estimated to take no longer than one hour).
NOTING THAT any costs so ordered may include the costs of making the application for costs.
On 7 November 2018 the mother filed an application in a case seeking the following orders:
(1)That the Respondent Father pay the entirety of the Applicant Mother’s costs from the commencement of the applicant mother’s engagement with Adelaide Family Law on 26 October 2012 to date totalling $122,417.88
(2)That leave be granted to the applicant to further quantify any costs of and incidental to this application at a later date.
(3)That pursuant to Rule 5.14 Family Law Rules 2004 (Cth.) this matter be heard in the absence of the Independent Children’s Lawyer.
The mother’s application for costs is opposed by the father.
In his Response filed on 31 January 2019 the father seeks an order that the mother’s costs application be dismissed.
In support of her application the applicant mother filed an affidavit affirmed 1 November 2018
In support of the order sought in the response the respondent father filed affidavits (affirmed on 31 January 2019 and 15 October 2019) and a financial statement that was also affirmed on 31 January 2019.
The application for costs was made returnable on 5 February 2019. In anticipation of the hearing the parties prepared written submissions that were of considerable assistance to me in identifying the ambit of the dispute. It became clear, however, that further material needed to be filed. Specifically the practitioners for the mother had firstly not particularised costs in accordance with the terms of my order which required their client’s costs in accordance with Schedule 3 to the Family Law Rules 2004. Secondly in circumstances where the applicant mother was seeking indemnity costs, her practitioners had failed to provide the documentation set out in Rule 22.53 (2) Family Law Rules 2004. Further the respondent father had not provided adequate information about his financial circumstances and in particular had not completed a relevant part of his financial statement.
Subsequent to the hearing of 5 February 2019 the parties filed further material upon which they sought to rely upon. This further material included an affidavit of the father affirmed 15 October 2019 and further written submissions from both parties in October and November 2019. I have read and considered all the additional material.
legal principles
Section 117 (1) of the Family Law Act 1975 (“the Act”) states, subject to the provisions of S. 117(2), that the general rule in proceedings in this court, is that each party to proceedings, shall bear his or her own costs.
Section 117(2) of the Act provides as follows:
If in proceedings under this act, the court is of the opinion that there are circumstances that justify it in doing so the court may subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise as the court considers just. (As discussed in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at [11]. This is the second step.
Section 117 (2A) of the Act provides, that in considering what order (if any) should be made for the payment of costs, the court should have regard to the following matters:
(a)The financial circumstances of each of the parties to the proceedings;
(b)Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)The conduct of the parties to the proceedings in relation to the proceedings including without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)Whether the proceedings were necessitated by the failure of a party to proceedings to comply with previous orders of the court;
(e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer and;
(g)Such other matters as the court considers relevant.
In the Marriage of I & I (No.2) (1995) 22 Fam LR 557, the Full Court stated that the relevant matters in S.117(2):
“must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.
I will therefore consider each of the relevant matters:
Is a costs order justified?
I have taken into consideration the father’s blatant failure to comply with the requirements of Family Law Rules which impose an obligation of full and frank disclosure. Failing to admit the truth of facts and allegations resulted in the mother incurring unnecessary costs. In particular, costs arising from being required to prove to the satisfaction of the court the truth of the allegations which she made.
The father misled the Court. He consistently denied the mother’s allegations of serious domestic violence including coercive controlling behaviour for six years and until the mother’s case was closed. During this time, there were further occasions of family violence against the mother.
The father conducted these proceedings by putting the mother to proof of her allegations in relation to violence by him father to herself and to others. He consistently denied the allegations of violence both on oath and in assessment interviews with the family report writer. It was not until the father went into the witness box that he admitted the mother’s allegations of violence to the mother and Ms O. Even after admitting violence generally, it was a feature of the father’s presentation in the witness box to deny or try to deflect specifics and only admit the specifics of the allegation when he was backed into a corner by cross examination by Ms Lewis. That was a forensic exercise which took time and extended the trial and increased the mother’s costs. Then his case became, that by virtue of the admission, he should have unrestricted time with B.
I am satisfied that there are circumstances pursuant to (2A) (c) which justify the Court departing from the general rule. Not only was the father unsuccessful in his application to spend time with B, the manner in which the father’s case was conducted vastly increased the legal costs and disbursements incurred by the mother in the conduct of her case.
Section 117(2A)(a) the financial circumstances of each of the parties
There was a considerable amount of material filed by the parties in respect to their own financial circumstances and the asserted financial circumstances of the other. The material indicates that the parties are living in extremely modest circumstances. The mother in her affidavit affirmed 1 November 2018 deposes that she is a student and that she has been unable to find work. The father in his affidavit affirmed on 15 October 2019 sets out that his income had dropped from $2,998.79 per week at the time he affirmed his financial statement on 31 January 2019 to the current level of $2,600.00 per month being a monthly payment he receives from “EE Super Fund” as an entitlement that is paid pursuant to the terms of an income protection component of his superannuation policy that has arisen as a consequence of an injury he has sustained which makes him unfit for work. The father also deposes that his monthly payment may cease in 2021 and that from thereon he may be totally reliant upon Centrelink for support if his medical condition does not improve.
The material filed by the parties also indicates that they have minimal assets. The father deposes that he is not in a relationship with any person and that he has family responsibilities that place a financial burden upon him above and beyond his legal obligation to pay child support for his two children. The father also deposes that the mother’s father is a financial resource to her. He describes the mother’s father in his affidavit affirmed on 31 January 2019 as a “rich man” who has been making a significant contribution to the payment of the applicant’s legal costs. The mother deposes in paragraph 7 of her affidavit filed 7 November 2018 that she has “had to borrow money from my father” but that he is “no longer able to assist me financially in these proceedings” and in paragraph 20 thereof she deposes that “I still owe my father approximately $51,887.01 for legal fees and other funds I have borrowed from time to time”. I accept that the mother is indebted to her father. Both gave evidence at the trial and impressed me as financially prudent, careful folk. If the monies advanced to the mother are not payable forthwith, which is likely to be the case given her financial situation, the indebtedness will be adjusted subsequently. At the time of the last filed evidence and submissions the father was travelling out of South Australia to care for his father who was ill. The mother asserts that the father is likely to receive an inheritance arising from the “imminent” death his father. However, there is no evidence before the court as to the likely quantum of this asserted inheritance or the medical prognosis of the said person.
I find that the financial circumstances of both parties are strained and there is doubt about the capacity of either party to meet an order for costs from their respective resources. It is not disputed however, in all the material filed, that the applicant has spent more on legal fees from her resources than the father has from his resources.
I do not consider that the strained financial circumstances of the parties precludes a costs order being made although it is a factor to be taken into account. I concur with paragraph 2.5.2 of the written submissions filed on behalf of the mother on 16 October 2019 where it is said: “The fact that a party is comparatively impecunious is not a bar to the making of an order for costs if there is another fact that would justify the making of an order (per In the Marriage of Schwarz (1985) 10 Fam LR.
Section 117 (2A) (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party.
Both parties have at various stages of these proceedings been in receipt of a grant of legal aid.
In paragraph 16 of her affidavit deposed on 1 November 2018 the mother states: “I received a grant of legal assistance on 6 December 2017 in relation to counsel fees associated with the resumption of the 5 day trial commencing 20 November 2017.” In paragraph 56 of the Outline of Response dated 4 February 2019 prepared on behalf of the father it is stated that the documentation evidencing the grant of legal assistance provides in addition to the coverage for counsel a fee for an instructing solicitor as well. I accept the submission that the grant of legal assistance to the mother did include a fee for an instructing solicitor. The reality is however that for the overwhelming period of the duration of this litigation the mother was privately funded. I will direct that the mother notify the Legal Aid Commission of South Australia of her entitlement pursuant to this Order. It is not for the father to be absolved from a liability to pay the mother’s costs because the mother’s costs were at first instance paid by Legal Aid. The mother has incurred a liability to legal aid for assistance. The mother can abide any direction given pursuant to s 20(2) of the Legal Services Commission Act 1977 (Sth Aust) if, or when, she recovers funds from the father.
In paragraph 55 of the Outline of Response dated 4 February 2019 prepared on behalf of the father it is stated that: “The father has at various times been legally aided. All legal aid for the father ended at the conclusion of Day 11 of the trial. Since then he has been privately funding and has paid up to the date of judgment (but not since). Even prior to the termination of legal aid he was at times suspended from aid (at which times he was either privately funding or self- representing). When in receipt of legal aid he was required to pay (and did pay) a client contribution”.
I have concluded that while the grants of legal assistance to the mother and father must be taken into account the fact that the parties received grants of legal assistance does not preclude the making of a costs order in this matter. I have also concluded that the grant of legal assistance to the father was more extensive than the grant of legal assistance to the mother, an ironic situation given the results of the litigation.
Section 117 (2A) (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters
The material filed on behalf of the applicant asserts that the conduct of the father in falsely denying the allegations of his abusive behaviour towards the mother until the fourth day of the trial significantly increased the length and complexity of the proceedings and the costs incurred. I accept that submission entirely.
The manner in which the father conducted these proceedings significantly increased the costs incurred by the mother. If the father had been frank in the giving of his evidence and acknowledged the truth of the mother’s extensive allegations of family violence before the trial commenced, the trial could have been avoided all together or at least reduced it to whatever hearing days were necessary to assess the efficacy of the steps taken by the father to address his violent nature. Indeed, if the father told the truth from the outset, most of the proceedings may have been avoided, he could have obtained necessary treatment earlier and the mother could have been spared substantial legal costs and corresponding emotional costs. c
It is to be remembered that the father maintained his false denials through proceedings before Judge Cole and then Justice Dawe. Not only did he fail to be truthful to exculpate himself, his denials were accepted by the family report writer who was, in turn, critical of the mother for not being agreeable to time between the child and the father. Counsel for the mother was required to cross examine the family report writer at length to unpick her flawed expert opinion about the value to the child of a meaningful relationship with the father, that opinion of the family report writer having been based on her acceptance of the father’s false denials and her disregard of violence described by the mother and subsequently admitted by the father.
I accept the mother’s submission to the effect that, had the father been truthful about the mother’s allegations of physical and emotional violence against herself and the other women, the trial before me could have commenced with evidence from the father’s psychiatrist and clinical psychologist from whom he belatedly sought therapy directed to his long standing violent behaviour towards women. Furthermore, the father could have been significantly more advanced in therapy than he was on the recommencement of our trial in spite of a long intervening period.
I am satisfied that the father conducted these proceedings with an insouciant attitude to the level of costs his behaviour caused the mother to incur. This factor weighs heavily in favour of the mother’s application for costs.
S 117 (2A) (d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
These were no enforcement proceedings. However, a significant part of the mother’s case was correctly directed to and concentrated on proving the father’s long standing and persistent family violence and refuting his denials of that violence.
S 117 (2A) (e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
In Davida & Davida [2011] FCAFC 61 Finn J., who presided on the Full Court and with whom O’Ryan and Ainslie-Wallace JJ agreed, said:
14. […] True it is that the relevant paragraph in section 117(2A) refers to a party being “wholly unsuccessful” but I think it fair to say that the practice has been to look at what might have been the relative merits of success or lack of success between the parties, even if necessary doing that under the last matter mentioned in section 117(2A), being any “other” matter.
A significant plank of the mother’s case against the father, for him to have minimal involvement in their daughter’s life, was an allegation that he had assaulted their daughter. The mother was not successful in making out the allegation of physical abuse by the father of their daughter but, in the result, obtained parenting orders which are wholly restrictive of the father’s involvement. I take into account that the mother’s allegation of violence to B was an issue which consumed an amount of court time and it was an issue which the mother failed to prove.
The distinction between the mother’s case and the father’s case is that the father perpetuated a series of lies and false denials whereas, I was satisfied, the mother genuinely believed her case. The court time spent on the violence allegations concerning B were confined to the first tranche of the hearing and was much less than the time spent on the father’s violent treatment of the adult women and how he could change his entrenched behaviour in that regard.
“Wholly unsuccessful” was discussed in Davida’s case as describing a case for which there was no justifiable basis for the position adopted, having regard to the outcome of the proceedings. The outcome is very important because it is the outcome, as opposed to the arguments and submissions advanced by the parties, against which a party’s success (or lack of success) in the proceedings is to be measured.
It is submitted on behalf of the father that he has not been wholly unsuccessful because, firstly, he successfully defended the allegations by the wife of physical mistreatment of B. Secondly, he is only restrained for a limited period from instituting further parenting proceedings. It was also submitted that the extant order provides ‘roadmap’ for the father to follow which, with successful treatment, may result in him obtaining orders for time with B in 2021. Having regard to the fact that parenting orders are rarely, if ever, final having regard to the many and varied changes of circumstance in a family which can justify the court revisiting parenting arrangements, the father’s position can, I am satisfied, be fairly characterised as “wholly unsuccessful”. He has not had face to face time with B since 23 February 2017 and the fact that he became entitled in October 2020 to make an application to seek orders which may (or may not) result in an order that he have some face to face time with the parties’ daughter and/or other involvement in her life, could not be reasonably described as a “measure of success”. On the other hand the mother advocated for no order to be made for face to face time or communication between B and the father and she obtained an order which provides for no time or communication and a qualifying period before the father can make an application for a parenting order. It is correct that the mother failed to make out a case against the father vis a vis alleged direct physical abuse by the father of the child (as opposed to the child having witnessed family violence perpetrated by the father). However I am satisfied that the outcome of the proceedings could be reasonably described as a “wholly successful” outcome for the mother, having regard to the fact that in the ordinary course parenting proceedings can be instituted on the basis of a change in circumstances.
I am satisfied that the father was wholly unsuccessful in securing time with B. He merely has a right to apply subsequently for specified time or other parenting orders.
S 117 (2A) (f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;
I do not understand that either party made formal offers.
S 117 (2A) (g) such other matters as the court considers relevant.
Notwithstanding the matters set out in the written material submitted by the parties in this matter I do not consider that there are any other significant matters to be taken into account in the exercise of my discretion.
What order is “just” having regard to S 117 (2A)
I have considered and taken into account all of the relevant matters in s. 117(2A) of the Act and the submissions of both parties and I am satisfied that there are justifying circumstances to depart from the general rule that each party shall bear his or her costs and that the father should be ordered to make a contribution to the costs incurred by the mother
The question therefore arises as to firstly the manner in which the amount of costs that the father should pay to the mother should be calculated and secondly the period of the mother’s instructions to her legal representatives that should be covered by any costs order.
As a general rule costs are calculated on a party to party basis according to Schedule 3 of the Family Law Rules 2004. The mother has however sought to have the amount of costs calculated on an indemnity basis. The principles on which indemnity cost should be ordered is set out by the Full Court in Worth & Worth (No. 2) [2019] FamCAFC 126 as follows: “The authorities are clear, that for the usual basis to be departed from, exceptional circumstances need to be demonstrated (see eg Limousin & Limousin (Costs) (2007) 38 FamLR 478). The categories of such circumstances are not closed (Yunghams & Yunghams (2000) FLC 93-029), but some examples are provided in the oft-quoted decision of Shepherd J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate-Palmolive Co”) and usefully Holden CJ in Munday V Bowman (1997) FLC 92-784 at 84,660 drew from his Honour’s decision the following:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.
(c)Evidence of particular misconduct causing loss of time to the court and to the parties.
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
(e)An imprudent refusal of an offer of compromise.
Relying on the principles stated in the Colgate-Palmolive Co the mother submits an order for indemnity costs is appropriate because the unsatisfactory conduct of the father referred to herein has caused her to incur additional legal costs.
While there is merit in this submission I have determined after carefully considering all the relevant factors that it would not be appropriate to make an order for indemnity costs.
The Court’s discretion when making an order for costs however is very broad. As was stated by the Full Court in Sfakianakis & Sfakianakis (2019) 59 Fam LR at paragraph 40 “the Court is not bound only to make an order on a party and party basis or an indemnity basis. It may take an intermediate course if that is the order that is just in all of the circumstances. A special costs order may be assessed by reference to a particular period of time or set of events. Alternatively the Court may fix a sum for costs that exceeds party and party costs but falls short of an indemnity”. It is apparent to me that a so called “special costs order” is aptly suited to the particular circumstances of this case.
It was in the context of the broad discretion available to me that at the hearing on 5 February 2019 that I invited the parties to make a submission as to whether or not I should allow a percentage of the applicant’s costs. It was also why I requested the applicant prepare a detailed memorandum of costs calculated on scale together with the documentation required by Rule 22.53 (2) which is a pre requisite for an application for an indemnity costs order and also just as relevant for a so called special costs order.
Rule 22.53 (3) provides that a party applying for an order for costs on an indemnity basis must inform the Court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement. As was said by the Full Court in paragraph 36 of the judgment in Sfakianakis: “The purpose of the rule is obvious. It is to inform the Court and the party against whom the costs order is sought as to how the costs the subject of the proposed order are calculated. It permits the Court and the other party to assess the reasonableness or otherwise of the proposed costs order and whether it is proportionate to the nature of the proceedings. An indemnity costs order is not a blank cheque permitting the successful party to pay his or her lawyers the amount they, or the lawyers, see fit.”
At the hearing on 5 February 2019 the applicant was unable to tender this documentation. The documentation was rather belatedly provided by the mother subsequent to the hearing and it is material to which the father responded.
In the document set out as “Supplementary submissions of the respondent father to the application for costs made by the applicant mother” dated 8 February 2019, the father succinctly sets out the various schedules of costs that have been prepared on behalf of the mother. As is set out in that document the “final version” of the schedule of costs prepared on behalf of the mother calculates costs firstly on an indemnity basis in the sum of $134,013.43 and secondly on party to party or scale basis in the sum of $95,604.81.
These sums represent the totality of the legal costs asserted to have been incurred by the mother since proceedings were first commenced in November 2012. The legal proceedings commenced on 15 November 2012 were concluded by way of a consent order made 24 April 2013. The current proceedings were commenced on 2 December 2014 by the applicant. In between these applications there was also a Notice of Appeal filed by the mother.
I do not propose to make a costs order that covers the totality of the litigation between the parties. The primary reason for the costs order is the conduct of the father at trial and therefore the scope of the costs order will cover the work performed on behalf of the mother of and incidental to the trial together with the work performed in making the application for costs.
The costs incurred by the mother in respect to the professional services rendered on her behalf of and incidental to the trial have been itemised in a schedule. Pursuant to the schedule professional fees are calculated on an indemnity basis (inclusive of Legal Aid) in the sum of $22,280.50, counsel fees are calculated (inclusive of Legal Aid) in the sum of $56,927.20 and other disbursements are calculated at $576.71 making a grand total (including Legal Aid) of $79,784.41. In accordance with the Family Court Scale professional fees are calculated (inclusive of Legal Aid) in the sum of $16,368.25, counsel fees (inclusive of Legal Aid) are calculated at $45,629.66 and other disbursements are calculated at $535.15 making a grand total (including Legal Aid) of $62,533.06.
In respect to this application for costs the mother sets out in the schedule that the costs incurred by her of and incidental to the application calculated on an indemnity basis total a sum of $4,833.40 and if calculated pursuant to Scale total the sum of $3,531.09.
A perusal of the schedule would indicate that it is doubtful that all costs claimed would be recoverable in an assessment of costs. For example a counsel fee is claimed for 19 February 2017 for “preparation” being a day that falls in the middle of 9 sitting days. Further there are a number of “conversational attendances” upon counsel that are charged for and charges for attendances upon the client that would be the subject of objection at an assessment. Overall however I find that the schedule sets out a reasonable and accurate description of the professional services rendered.
I would make an assessment of the applicant’s overall costs during the relevant period as being in or about the sum of $78,000.00 when calculated on an indemnity basis and as being in or about the sum of $59,000.00 when calculated on Scale. I make an allowance for the part of the trial attributable to the mother’s failed case in relation to the father having allegedly assaulted the parties’ daughter. I do not accept the father’s assertion that court time was wasted on scrutinising the status of the mother’s de facto relationship and make no allowance in that regard.
I therefore make a special costs order that the respondent pay to the applicant the sum of $45,000.00.
A stay of 30 days is allowed.
I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 6 May 2021.
Associate:
Date: 6 May 2021
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