Hadlow and Davis (No. 2) - [2020] FamCA 925

FAMILY COURT OF AUSTRALIA

HADLOW & DAVIS (NO. 2)

[2020] FamCA 925

FAMILY LAW – COSTS – Circumstances justifying an order – Where the father seeks that the mother and the maternal grandparents pay his costs on an indemnity basis – Where the father is seeking costs in relation to various aspects of the proceedings including interim and final applications – Where the mother was wholly unsuccessful in relation to an application for a stay of orders and it is appropriate for the Court to consider the father’s costs - Where the father also contends he incurred costs as a direct result of the conduct of the mother and the maternal grandparents – Where the mother made allegations of sexual abuse and then withdrew the allegations – Where the mother’s assertions were egregious and support an award of indemnity costs – Orders.

FAMILY LAW – COSTS – Non-parties – Whether the maternal grandparents should be the subject of a costs order - Where the maternal grandparents are non-parties – Where the maternal grandparents provided some financial assistance to the mother throughout the proceedings - Where the maternal grandparents were not the instigators of the litigation nor did they have a vested interest in the outcome of the proceedings.

Anison & Anison (2019) FLC 93-908
Beckham & Quarrington (2019) FLC 93-913
Knight v F.P. Special Assets Limited (1992) 174 CLR 178
Kohan & Kohan (1993) FLC 92-340
Pagliarella & Pagliarella (No. 3) (1994) FLC 92-460
Penfold & Penfold (1980) FLC 90-800
Prantage & Prantage (2013) FLC 93-544
Re Wilcox; Ex parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151
Telfer & Telfer (1996) FLC 92-688

Family Law Act 1975 (Cth) ss 117(2A)
Family Law Rules 2004 (Cth) rr 19.08, 19.18, sch 3

APPLICANT:

Mr Hadlow

RESPONDENT:

Ms Davis

NON-PARTIES:

Ms T Davis and Mr U Davis

FILE NUMBER:

ADC

3076

2017

DATE DELIVERED:

4 November 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

30 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Janson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Roberts

SOLICITOR FOR THE RESPONDENT:

VP Lawyers

COUNSEL FOR THE NON-PARTIES:

Mr Hoffman QC

SOLICITOR FOR THE NON-PARTIES:

Clelands Lawyers Adelaide Pty Ltd

Orders

That on or before one hundred and eight two (182) days from the date of this order the mother do pay the father’s costs to the Trust Account of Janson Lawyers for and on behalf of the father the sum of EIGHTEEN THOUSAND THREE HUNDRED AND FIFTY DOLLARS AND SEVENTY EIGHT CENTS ($18,350.78).

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 Hadlow & Davis 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…

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 Hadlow and Davis (No. 2)

Details

AGLC: Hadlow and Davis (No. 2) [2020] FamCA 925
Case: [2020] FamCA 925
Decision Date: 4 November 2020

CaseChat Overview and Summary

In *Hadlow and Davis (No. 2)*, the father sought an order that the mother and maternal grandparents pay his costs on an indemnity basis. The dispute concerned various aspects of the proceedings, including interim and final applications, and the father contended that he incurred costs as a direct result of the conduct of the mother and the maternal grandparents. The proceedings before Berman J in the Family Court of Australia involved allegations of sexual abuse made by the mother, which were subsequently withdrawn.

The court was required to determine whether the mother and the maternal grandparents should be subject to a costs order, and specifically whether those costs should be awarded on an indemnity basis. A key issue was the mother's unsuccessful application for a stay of orders and the impact of her withdrawn allegations of sexual abuse on the assessment of costs. The court also considered the role of the maternal grandparents, who were non-parties to the proceedings but had provided financial assistance to the mother.

Berman J reasoned that the mother's assertions, particularly the egregious nature of the withdrawn sexual abuse allegations, supported an award of indemnity costs. While the maternal grandparents had provided financial assistance, they were not considered the instigators of the litigation nor did they possess a vested interest in its outcome, which influenced the decision regarding their liability for costs.

Ultimately, the court ordered that the mother pay the father's costs in the sum of $18,350.78, to be paid to the Trust Account of Janson Lawyers on behalf of the father within 182 days of the order.

Orders

Orders of the court

That on or before one hundred and eight two (182) days from the date of this order the mother do pay the father’s costs to the Trust Account of Janson Lawyers for and on behalf of the father the sum of EIGHTEEN THOUSAND THREE HUNDRED AND FIFTY DOLLARS AND SEVENTY EIGHT CENTS ($18,350.78).

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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