McCarthy and Kaminski and Anor (No 2)

[2013] FamCA 661

FAMILY COURT OF AUSTRALIA

MCCARTHY & KAMINSKI AND ANOR (NO 2) [2013] FamCA 661

FAMILY LAW – COSTS – Intervener to pay percentage of costs

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Knight v FP Special Assets Ltd (1992) 174 CLR 178
Prantage & Prantage [2013] FamCAFC 105
Re JJT and others; ex parte Victoria Legal Aid (1998) FLC 92-812
Williams v Spautz (1992) 174 CLR 509

APPLICANT: Mr McCarthy

RESPONDENT: Ms Kaminski

INTERVENER: Dr D Kaminski

INDEPENDENT CHILDREN’S LAWYER: Ms Franklin-Bell

FILE NUMBER: SYC 6500 of 2010

DATE DELIVERED: 5 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 31 May 2013; written submissions filed on 14 June 2013, 11 July 2013 and 19 July 2013.

REPRESENTATION

SOLICITOR FOR THE APPLICANT: DC Legal Pty Ltd

FOR THE RESPONDENT:	No appearance
SOLICITOR FOR THE INTERVENER:	Prime Lawyers

FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

Orders

It is ordered

(1)  That within sixty (60) days the Intervener pay the Applicant:

(a)Three-fifths (3/5ths) of the Applicant’s costs of and incidental to the trial incurred on and from 6 February 2012;

(b)Subject to (c) below, three-fifths (3/5ths) of the Applicant’s further costs of and incidental to the proceedings including the costs of the hearing on 27 March 2012 (but not the earlier adjourned hearing on 15 March 2012);

(c)One half of the Applicant’s costs of and incidental to the Application in a Case filed 3 May 2013

all such costs to be agreed or, failing agreement, to be assessed on the party and party basis pursuant to the Family Law Rules 2004.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCarthy & Kamisnki has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 6500 of 2010

Mr McCarthy

Applicant

And

Ms Kaminski

Respondent

And

Ms D Kaminski

Intervener

REASONS FOR JUDGMENT

1. On 5 April 2013 I made final parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) and delivered reasons for judgment for those orders (“the trial reasons”).

2. An issue in the parenting proceedings was whether the Father posed an unaccepted risk of sexual abuse to his daughter, the eldest of the children the subject of those proceedings (“the abuse issue”).

3. The trial reasons, particularly at paragraphs 99 to 148, address the abuse issue and record relevant findings I made as to the maternal grandmother who became a party as Intervener in the proceedings at the outset of the trial, as to her lack of credibility and false statements and allegations she made in the proceedings concerning the abuse issue.

4. As is recorded in the trial reasons, the Mother only abandoned the allegations of sexual abuse against the Father well into her own cross-examination. The Mother was the respondent in the proceedings so that the Father’s case as applicant and the oral evidence of the Father and his witnesses proceeded on the footing that the Mother, as well as the Intervener, were then maintaining the allegations.  

5. As the trial reasons record, the Intervener maintained the allegations of alleged sexual abuse notwithstanding the Mother’s abandonment of those allegations during the trial.

6. By an Application in a Case filed on 3 May 2013[1] the Father sought various orders against the Intervener. No orders were sought against the Mother in this Application and therefore she did not participate. Curiously, what are nominated in the Application as “interim orders” were orders for the Intervener to pay the Father’s expenses of $23,320.91 “plus interest” in respect of outlays identified in the Application; and “final orders” for the Intervener to pay the Father’s “costs on an indemnity basis” of and incidental to the five applications the Father filed in the then Federal Magistrates Court and this Court concerning the parenting proceedings.

   [1] Rule 19.08(2) of the Family Law Rules 2004 provides for an application for costs to be made within 28 days after the final order is made.

7. Also curiously, in paragraph 5 of the Application for final orders the Father sought to be paid “legal professional fees on an indemnity basis” with respect to each of those applications relating to his own performance of “services” being those services which are adumbrated in the Application.

8. Notably for reasons which will be discussed, paragraph 6 of the Father’s proposed orders would have obliged the Father to file and serve upon the Intervener an affidavit “deposing to the precise sums payable to himself and his legal advisors” in respect of the subject applications and “when the sums were incurred and the total of those sums” and obliged the annexure to that affidavit of invoices and fee notes in respect of each amount.

9. On the first return date of the Application on 31 May 2013 I confirmed with the respective legal representatives for the Father and the Intervener that there would be no interim hearing and then a final hearing of the Application for costs, rather the matter would proceed in the usual way that there would be only one hearing and determination of the Application. Both respective legal representatives acknowledged that course and agreed that the Application and the Intervener’s Response to it would proceed by way of written submissions and neither party required any further oral hearing. Given the requirement under s 117(2A)(a) of the Act for the Court to have regard to the financial circumstances of each of the parties, in the course of the hearing on 31 May 2013 the respective legal representatives were able to agree upon a timetable for the furnishing of the respective written submissions together with the filing of affidavits setting out each parties’ respective financial circumstances.

Material relied upon

Father

1. Aside from his Application in a Case filed on 3 May 2013 as already referred to the Father filed an affidavit in support of that Application also on 3 May 2013.

2. On 3 June 2013 the Father filed an affidavit attaching his Financial Statement as filed on 12 February 2013 and deposed in that affidavit that his financial position remained unchanged.

3. On 14 June 2013 the Father’s primary submissions were filed and on 19 July 2013 the Father filed submissions said to be in reply to the submissions of the Intervener.

4. No affidavit of the kind described in paragraph 6 of the Application in a Case as earlier referred to was filed by the Father or at least was read or relied upon for the purpose of the Application.

Intervener

1. On 11 July 2013 the Intervener filed her Response seeking orders that the Father’s Application filed 3 May 2013 be dismissed and that the Father pay the Intervener’s costs of the cost application.

2. Likewise on 11 July 2013 the Intervener filed a Financial Statement together with the Intervener’s written submissions in relation to the costs application.

3. The Intervener’s written submissions oppose the making of any costs order against the Intervener and contain the alternative contention that if a costs order is made any costs should be ordered only on a party and party basis and then only in respect of a proportion, rather than the whole of, the Father’s costs of the proceedings, focusing in particular on the feature that the Intervener only became a party as at the first day of trial.

Objections to evidence

1. The Intervener’s written submissions include a schedule of objections taken to the Father’s affidavit filed 3 May 2013.

2. Adopting the paragraph numbering of the Father’s affidavit identified in that schedule I make the following rulings in respect of the objections:

   Paragraphs 4 to 10

   I agree that these are not relevant on this Application and uphold those objections. I note that the Father’s submissions in reply do not attempt to maintain these paragraphs.

   Paragraphs 11 and 12

   Whilst I agree that the trial reasons speak for themselves, and prolixity would have been avoided by simply referring to relevant paragraphs of the trial reasons rather than regurgitating them, the trial reasons are relevant to the present Application and I overrule this objection.

   Paragraph 15

   I agree this paragraph expresses a conclusion rather than the facts relied upon to support a conclusion or submission and I uphold this objection.

   Paragraphs 24 to 25

   These paragraphs record statements by the Intervener relevant to her financial circumstances. I overrule these objections.

   Paragraphs 26 to 30

   I agree that paragraphs 26 to 30 are irrelevant and I uphold the objection to these paragraphs.

   Paragraphs 31 and 32

   These paragraphs are of some relevance to the Intervener’s financial circumstances and I therefore overrule the objections to these paragraphs.

   Paragraphs 33 to 39

   I uphold the objection to these paragraphs on the ground of relevance.

   Paragraphs 40 to 43

   I overrule the objections to these paragraphs. These provide the factual basis for the claim advanced by the Father in relation to the work he performed himself.

   Paragraphs 45 to 47

   I overrule the objections taken to these paragraphs on the basis that I find the grounds for objections are not made out.  

The Father’s application for costs

1. There is a degree of dissonance between the orders sought in the Father’s Application in a Case and the orders contended for in the Father’s written submissions.

2. First is the feature that whilst both the Application and the Father’s written submissions contend for payment of the Father’s costs on an indemnity basis, the Application contends for such an order in general terms whilst the written submissions contend for an order to be made in the fixed amount of $300,000.

3. Second, whilst the Application includes an order for the Father to himself be paid “legal professional fees on an indemnity basis” for identified “services” he is said to have performed, the written submissions contain the contention that the fixed sum sought of $300,000 “does not include the professional time of the Father”. It is there asserted that the claim for the fixed amount of $300,000 is conservative in part because it does not include that component.

4. Third, whilst the “interim orders” identified in the Application include a claim for interest on outlays paid there is no claim for interest in respect of any of the “final orders” there identified. The written submissions, in support of the fixed amount claimed of $300,000, make reference to calculations including in Schedule 1 to those submissions calculations including interest.

5. Before dealing with the differences between the Application and the submissions further it is trite, as the submissions of the Intervener make reference to, that submissions are not evidence. Several matters of fact asserted in the Father’s written submissions are not in evidence because they are not contained in either of the affidavits the Father relies upon in support of this application. Whilst it will be seen that in the end probably nothing of great moment turns on this I emphasise that this application, like any other, falls to be considered on the evidence in support of it and I do not place any reliance upon any matters of fact asserted in submissions which are extraneous to the evidence.

6. The dictionary which forms part of the Family Law Rules 2004 defines “costs” as follows:

   Costs means an amount paid or to be paid for work done by a lawyer, and includes expenses.

7. The dictionary defines “lawyer” as follows:

   Lawyer means a person who is enrolled as a legal practitioner of:

   (a)a federal court; or

   (b)the Supreme Court of a State or Territory.[2]

   [2] See also s 122 of the Act and sections 55A and 55B of the Judiciary Act 1903.

8. In Re JJT and others; ex parte Victoria Legal Aid[3] it was held that “costs” within the meaning of the Act means “costs” as that word is ordinarily understood in the law; the amount which the person to whom the order is directed must pay to some party to the litigation as partial indemnity for the professional legal fees and expenses incurred by that party in the course of the litigation.

   [3] (1998) FLC 92-812 per Gaudron and Hayne JJ.

9. That is, the powers in s 117(2) and, prior to its repeal, s 117AB to make orders as to “costs” means that the subject-matter of those orders must be “costs” as ordinarily understood in the law.

10. At paragraphs 40 and 41 of his affidavit filed 3 May 2013 the Father deposes to his “legal qualifications” as a trade marks attorney and as a patent attorney. However, he does not depose to being enrolled as a legal practitioner of any federal court or the Supreme court of any state or territory.

11. Thus the Father is not a “lawyer” within the meaning of the Act or Family Law Rules and the claim he makes for reimbursement for services provided by him for his own case cannot be “costs” within the meaning of the definition of “costs” referred to.

12. Moreover, by reference to the High Court authority referred to, the Father’s claim for reimbursement for professional services does not constitute “costs” as that word is ordinarily understood in the law because it does not comprise professional legal fees and expenses paid or incurred by the Father with a legal practitioner in the course of the litigation.

13. I therefore do not accept the submissions on behalf of the Father that any claim for his professional time undertaking work on his own case “could be allowed on taxation” essentially because such a claim cannot form part of “costs” within the meaning of the Act or Family Law Rules.

14. The Father’s claims for interest (such as they are) in purported reliance upon rule 17.03 of the Family Law Rules 2004 are misconceived. That rule operates only where “interest is payable” by operation of one or other of the relevant sections of the Act as identified in that rule. Sections 87(11)(b) and 90KA(b) have no relevance to these proceedings and s 117(b)(1) contemplates interest being payable where a court makes an order for the payment of money either from the date the order is made or the date the order takes effect, whichever is later.

15. No authority is advanced by the Father in support of what seems to me to be a novel proposition that, outside the terms of a costs agreement (as defined in the Rules) in respect of unpaid costs, an order for costs can legitimately include an interest component with the interest being calculated from the date each outlay or item of cost was paid by the applicant, as client, to his or her lawyer. I suspect the absence of authority reflects that such a proposition has not been accepted by a court in this or any other relevant jurisdiction.

16. In any event, given the content of the Father’s written submissions I will proceed on the footing that his claim crystallises into a claim for his costs of and incidental to the parenting proceedings to be paid on an indemnity basis and fixed in the amount of $300,000.

Relevant facts

1. The trial reasons record at some length the discussion and findings made concerning the abuse issue. At paragraph 112 of the trial reasons I recorded my finding that the maternal grandmother’s allegations that the Father had sexually abused his eldest daughter were without evidentiary foundation and were made dishonestly by the maternal grandmother with the intent to punish the Father.

2. At paragraph 137 of the trial reasons I recorded a finding that the maternal grandmother knowingly sought to influence other witnesses in respect of the abuse issue. At paragraph 146 of the trial reasons I recorded a finding that the maternal grandmother was motivated to cause harm to the Father by advancing allegations in respect of the abuse issue and influenced each of the Mother and other witnesses in respect of these allegations.

3. Otherwise the trial reasons record findings as to areas in which the maternal grandmother was able to exert influence over the Mother arising out of their enmeshed relationship up until the point of their estrangement.

4. The Father’s claim for costs made pursuant to s 117AB or pursuant to s 117 of the Act; and that such costs should be ordered on an indemnity basis in the fixed amount contended for and in respect of the whole of the Father’s costs; proceeds on the footing that the maternal grandmother’s conduct in relation to the abuse issue and more generally in terms of her influence of the Mother justifies the making of such costs order as sought by the Father.

Relevant law

1. In Prantage & Prantage [2013] FamCAFC 105 delivered on 4 July 2013 the Full Court undertook a comprehensive review of the relevant law relating to the now repealed s 117AB of the Act and of the settled law relating to orders for costs including indemnity costs in this jurisdiction.

2. It follows from, or is confirmed by, Prantage, relevant to this case, that:

   a)Because the subject proceedings here were instituted prior to the amending act[4] which repealed s 117AB, the amendments, including the repeal of that section, are not operative in relation to these proceedings or this application for costs. Thus the former s 117AB applies.

   b)Application of the decisions on s 117AB cited with approval in Prantage results in the conclusion, by reference to the findings recorded in the trial reasons here, that the maternal grandmother, having become an Intervener and party to the proceedings “knowingly made a false allegation or statement in the proceedings” by maintaining her case at trial and in her own evidence at trial as to the allegations concerning the abuse issue. As the terms of s 117AB are satisfied the general rule expressed in s 117(1) that each party shall bear his or her own costs no longer applies. The Court retains discretion both as to the proportion and quantum of costs payable even when s 117AB applies.

   c)The usual rule when costs are ordered is that they are ordered on a party and party basis and it is fundamental to the exercise of discretion in considering an order for indemnity costs that:

   i)it is recognised that an order for costs on an indemnity basis is a very great departure from the norm; and

   ii)the Judge should know to what extent costs on an indemnity basis exceeds the parameters set by the applicable scale of costs. The requirement for the Court to be informed of the terms of any relevant costs agreement is enshrined in the Rules (rule 19.08(3)).

   d)It is the conduct of the party as a litigant not conduct as a parent (or grandparent) which is relevant to the issue of costs and indemnity costs. There is no rule that indemnity costs will be ordered where the party was guilty of ethical or moral delinquency in the antecedent facts giving rise to the litigation. 

   [4] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).

3. As to (d), in Prantage the plurality of the Full Court stated at [102] and [103]:

   102. It is important in this context to recognise, as Lindgren J did in NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77 at [56], that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation”.

   103. Lindgren J went on to point out (original emphasis): 

   Even in a proved case of fraud, for example, in my opinion the presumption is that a costs order against the fraudulent party will be on the party and party basis.  The conduct of a party that is relevant to the issue of indemnity costs is the party’s conduct as litigant.  But, as noted below, the knowledge that a party has, including knowledge of his or her past conduct, may be relevant to an assessment of his or her conduct as litigant.  

4. It is undoubtedly true, as the Father’s submissions in reply emphasise, that s 117 of the Act provides a source of power for costs to be ordered against a non-party.[5] However, as Mason CJ and Deane J emphasised in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192 the fact that jurisdiction exists to make an order for costs against a non-party does not mean that a Judge has an unfettered discretion to make any order. The wide discretion “must be exercised judicially and in accordance with general legal principles pertaining to the law of costs”.[6]

   [5] See Re JJT and others; ex parte Victoria Legal Aid (1998) FLC 92-812.

   [6] Citing Lambert J.A. in Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 D.L.R. (3d) 455 at 462.

1. Their Honours noted the prima facie general principle for costs orders only to be made against a party to the litigation and there must be special circumstances in which it can be said to be appropriate for an order against a non-party to be made.

2. Clearly, Knight’s case and Williams v Spautz[7] are High Court authorities supporting the proposition that this Court may act against abuse of its processes and award costs against a non-party in an appropriate case.

   [7] (1992) 174 CLR 509.

3. It is thus not the case, as the Intervener’s written submissions imply, that the fact that the Intervener did not become a party until the first day of trial of itself precludes the Intervener’s exposure to a costs order. However, as Prantage emphasises it is conduct as litigant, rather than as a parent (or grandparent by necessary inference) that is to be considered and it is from that perspective that the fact that the maternal grandmother intervened on the first day of trial is relevant.

4. It cannot be sustained here that the Intervener can be characterised as the true or sole protagonist in the litigation, or as the person interested in the litigation, occupying a position equivalent to the receivers of the companies in Knight’s case who, as non-parties, had instituted, maintained and defended proceedings in the name of the companies for their own benefit. Here, as will be further discussed, the Mother had quite separate and discrete interests in the litigation, and indeed opposed orders sought by the Intervener, and there were a range of issues, separate to the abuse issue, which were agitated between the Father and the Mother. For those reasons this case does not fall into the category of appropriate case, consistent with the general principles relating to awards of costs, that might follow a conclusion that the Intervener was the sole or true person interested in the outcome of the litigation.

5. Prantage thus dictates that analysis here be made of the Intervener’s conduct both as maternal grandmother and as a litigant in the proceedings, the latter being relevant to the discretion to order costs.

Resolution

1. Much, if not most, of the conduct of the Intervener identified by the Father in support of his application both as regards the proportion of the costs he seeks and the indemnity basis upon which he seeks costs, can readily be characterised as antecedent conduct of a maternal grandmother rather than conduct of an Intervener in that capacity as a party to litigation.

2. It is to be remembered that the maternal grandmother became a party to the litigation as Intervener only on the first day of trial. It is her conduct as a party to the litigation, not her antecedent conduct in the capacity of maternal grandmother, that falls for consideration.

3. That is, the fact that the maternal grandmother exerted the level of control and influence she did upon the Mother and her other now adult children and the effects of that, is conduct by the maternal grandmother in that capacity. Likewise, she made the subject allegations of abuse and caused others to so do in her position of influence as a controlling maternal grandmother.

4. The Intervener did, in that capacity and as a party to the litigation on and from the first day of trial, maintain a case advancing the allegations relevant to the abuse issue and relied upon affidavit and oral evidence containing what has been recorded in the trial reasons, including those findings earlier referred to, false statements and allegations.

5. Thus, in these circumstances as earlier referred to s 117AB obliges the making of a costs order against the Intervener. Moreover, those same circumstances constitutes “circumstances that justify” the Court making an order as to costs within the meaning of s 117(2) of the Act.

6. In seeking an order for indemnity costs, whilst the Father deposes (in paragraph 44 of his affidavit filed 3 May 2013) to having entered into a costs agreement he has not, as the Intervener’s written submissions emphasise, complied with rule 19.08(3) which mandates that the Court be informed of the terms of the costs agreement. Thus the Court is unable to consider the extent to which $300,000 or the total amount actually paid or incurred by the Father for costs exceeds the applicable scale of costs. There is thus no means by which the reasonableness or otherwise of the costs paid or claimed by the Father can be gauged. As earlier noted, the settled law is that this is fundamental to the exercise of discretion in considering an order for indemnity costs.

7. Thus the application for costs on an indemnity basis must fail even if, for no other reason, because of the lack of such evidence upon which the discretion is to be determined.

8. In my judgment an assessment of the relativity between the Intervener’s conduct as a party and the litigation overall is a necessary ingredient informing the discretion as to what proportion of the Father’s costs might justifiably be considered to be ordered to be paid by the Intervener. As already noted, the Father’s approach is that the whole of his costs of the proceedings ought be met by the Intervener.

9. However, a number of important factors militate against the approach adopted by the Father, quite apart from the distinction between conduct as a litigant and antecedent conduct in another capacity which has already been dealt with.

10. First, whilst the abuse issue and the allegations surrounding the abuse issue was central to the parenting proceedings it was by no means the sole issue.

11. Notably, the Father commenced proceedings by the filing of an application in the then Federal Magistrates Court on 15 October 2010. That was before any allegations of sexual abuse had surfaced or been advanced. Moreover, as is recorded in the trial reasons, there were a number of issues for the Mother as to the children, then very young, being prone to being exposed to angry outbursts by the Father and his capacity to care for them. As the trial reasons reflect, for example, the discussion commencing at paragraph 172, the Mother’s concerns were not without some basis.

12. Moreover it is to be noted that the trial reasons reflect (at paragraph 210) that the Father’s case that he was in fact the primary carer of the children prior to the parties’ separation was rejected.

13. Reference to the written reports and oral evidence of each of the experts, Dr W and Mr K, as discussed in the trial reasons, reflect that there were many more issues of significance between the parents, going to the question of parenting orders in the children’s best interests, quite apart from the abuse issue.

14. Even after the evidence at trial and the Mother having abandoned the allegations of sexual abuse, the parents’ respective final proposed orders, as referred to in paragraph 13 of the trial reasons, reflect fundamental differences on significant issues including the allocation of parental responsibility and, for example, the rate of progression of time for the children to spend with the Father.

15. As is noted in the trial reasons, in parenting proceedings aspects of conduct and outcomes of the litigation ought not be given undue emphasis. There is a positive element to the determination of parenting orders in the sense that it is not a process of only, or even mainly, identifying disqualifying factors or deficits in parenting of either parent. The process often involves competing views of highly capable parents as to what parenting orders best meet the best interests of their children. As the trial reasons also reflect, this was a case involving parents both of whom had positive or favourable aspects to their personal and parenting capacities; but they were fundamentally apart as to parenting orders which best met the best interests of their children.

16. In terms of proportionality of the Intervener’s relevant conduct in that capacity vis-à-vis the proceedings and thus the Father’s costs, I am not persuaded that it would be a legitimate exercise of discretion either pursuant to s 117AB or pursuant to s 117(2) to conclude that the whole of the trial proceedings was referable to the Intervener’s conduct as a litigant. Even accepting, as the trial reasons record, that the appointment of an Independent Children’s Lawyer was necessitated only because of the allegations of sexual abuse, it is to be kept in mind that those allegations arose well before the maternal grandmother became a party to the proceedings as Intervener on the first day of trial. As already noted, the Intervener maintained the allegations even when they were abandoned by the Mother. However, aside from those allegations there remained significant issues in dispute as between the parents.

17. Reflecting upon the trial reasons and the evidence referred to in the trial reasons, and reflecting upon the trial proceeding itself, I consider that absent the abuse issue and the involvement of the Independent Children’s Lawyer the trial of these parenting proceedings would probably have occupied two rather than five days of trial. That is, it would still have been necessary to have the expert evidence of Mr K and Dr W to address issues other than the abuse issue, but it is difficult to conceive the trial of the balance of issues occupying more than about two (2) days.

18. Likewise, aside from the trial itself, three-fifths of the further submissions of the Father and the further work done is the most that could reasonably be attributed to the Intervener’s relevant conduct given the effect of the Mother’s earlier abandonment of the abuse issue. That is, the Mother resiling from the allegations had a significant effect. As is recorded in the trial reasons, at the conclusion of the evidence at trial the Mother joined with an application by the Independent Children’s Lawyer that existing restrictions on the Father’s time with the children in terms of supervision be removed.

19. Turning to the considerations expressed in s 117(2A), I have considered the financial circumstances of each of the Father and the Intervener on the evidence filed. There is understandably no submission on behalf of the Intervener to the effect that she lacks the financial capacity to meet a party and party costs order and her financial circumstances would seem to be significantly superior to those of the Father irrespective of complaints agitated in the submissions on her behalf about any valuation of the Father’s business interests.

20. Neither party is in receipt of legal aid. I have dealt with relevant conduct of the Intervener and the proceedings were not necessitated by a failure of either party to this application to comply with previous orders.

21. The Intervener was wholly unsuccessful in obtaining the orders she sought at trial but she successfully opposed, with the Mother, many of the orders finally sought by the Father.

22. No relevant offer to settle the proceedings (as distinct from offers to participate in mediation) were agitated in evidence on this application.

23. In my judgment the discretion in s 117AB and the discretion pursuant to s 117(2) is appropriately exercised by concluding that there ought be an order that the Intervener pay three-fifths of the Father’s party and party costs of the trial incurred on and from 6 February 2012, including the Father’s costs of the written submissions following trial together with the Father’s costs of the hearing on 27 March 2012, such costs to be agreed or failing agreement to be assessed on the party and party basis.

24. Obviously, the above costs do not include any costs of the Father with respect to the adjournment of the hearing set for 15 March 2012, which event was the subject of a separate order then made as to costs.

Costs of this application

1. Whilst the Father has succeeded in obtaining an order for costs the Intervener has succeeded in restricting the order to a proportion of the Father’s costs compared to the claim advanced and also in restricting the order to an order on the party and party basis as opposed to the indemnity basis.

2. In these circumstances the Intervener ought be ordered to pay one-half of the Father’s costs of and incidental to this application.

3. For these reasons I make the Orders set out at the commencement of them.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 September 2013.

Associate:

Date:  5 September 2013