Marston & Marston (No 2)
[2021] FedCFamC1F 318
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Marston & Marston (No 2) [2021] FedCFamC1F 318
File number(s): SYC 3204 of 2020 Judgment of: REES J Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – COSTS – Where the husband was wholly unsuccessful in defending the making of a divorce order – Indemnity costs ordered in favour of the wife. Legislation: Family Law Act 1975 (Cth) s 117(2A) Cases cited: Colgate-Palmolive Co v CussonsPty Ltd (1993) 46 FCR 225 Division: Division 1 First Instance Number of paragraphs: 16 Date of last submission/s: 7 December 2021 In Chambers: 17 December 2021 Place: Sydney Counsel for the Applicant: Ms Tabbernor Solicitor for the Applicant: Freedman & Gopalan Solicitors Respondent: Litigant in person ORDERS
SYC 3204 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MARSTON
Applicant
AND: MR MARSTON
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS:
1.That within three months of the date of these orders the husband pay to the wife the sum of $39,176 by way of costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marston & Marston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
On 23 November 2021, I delivered reasons and made orders in proceedings arising from an application for a divorce order filed by Ms Marston (“the wife”) in relation to her marriage to Mr Marston (“the husband”).
That application had been filed on 22 May 2020 and was granted on 15 September 2020.
The husband sought to review the granting of the order, unsuccessfully.
The wife now seeks costs of the review application. The husband, who represented himself in the proceedings, opposes the wife’s application and seeks a costs order in his favour.
Both the husband and the wife have filed written submissions.
This application falls to be determined according to the principles set out in s 117(2A) of the Family Law Act 1975 (Cth) which are set out below:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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 the 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.
Neither party has filed a Financial Statement. The wife works in her professional capacity. There is no evidence of her income. She is solely responsible for the financial support of the parties’ two children who are aged 16 years and 12 years.
The husband asserts that he has no income and is supported by his mother.
Neither party is in receipt of a grant of legal aid.
I was not referred to any conduct of the parties which exacerbated the costs.
The husband was wholly unsuccessful.
I was not referred to any offer of settlement.
Having regard to all of those matters, it is appropriate that the husband pay the wife’s costs of the proceedings.
The wife seeks the payment of costs of $39,176 on an indemnity basis.
When considering whether an order for indemnity or solicitor/client costs would be appropriate, it is instructive to revisit the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 257 where his Honour reviewed the authorities and said:
4. …The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo: “the categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 ay 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
The facts of this matter are recorded in the reasons for judgment delivered on
23 November 2021. Those reasons disclose that the husband has prosecuted these proceedings with wilful disregard of known facts and clearly established law and has unduly prolonged the proceedings by groundless contentions.
This is a matter in which it is appropriate to make an order for indemnity costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 17 December 2021
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