Newett & Newett (No 5)
[2024] FedCFamC1F 606
•10 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Newett & Newett (No 5) [2024] FedCFamC1F 606
File number(s): BRC 2179 2018 Judgment of: BAUMANN J Date of judgment: 10 September 2024 Catchwords: FAMILY LAW – Costs – Where the parties have been involved in significant litigation for over five years – Costs order made fixed in the sum of $24,000 Legislation: Family Law Act 1975 (Cth) ss 65DAAA, 117
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) rr 12.13, 12.17, 15.06
Cases cited: Buckley & Buckley (2013) FamCAFC 150
Newett & Newett (No 9) (2023) FLC 94-133
Newett & Newett (No 8) (2023) FLC 94-128
Newett & Newett (No 4) [2022] FedCFamC1F 624
Newett & Newett (No 2) [2022] FedCFamC1F 439
Newett & Newett (No 5) [2021] FamCA 383
Newett & Newett & Anor (No 6) [2020] FamCA 1056
Division: Division 1 First Instance Number of paragraphs: 57 Date of last submission/s: 13 August 2023 Date of hearing: On the papers in chambers Place: Brisbane Solicitor for the Applicant: Damien Greer Lawyers Solicitor for the Respondent: Litigant in person ORDERS
BRC 2179 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NEWETT
Applicant
AND: MS NEWETT
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
10 SEPTEMBER 2024
THE COURT ORDERS:
1.That paragraphs 3 to 5 inclusive of the Respondent’s amended Response filed 23 July 2024 be dismissed.
2.That the Respondent wife shall pay a contribution to the costs of the Applicant husband for the proceedings fixed in the total sum of $24,000 payable within sixty (60) days.
3.That all outstanding Applications and Responses be otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Newett & Newett has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J
INTRODUCTION
Between March 2018 and final costs submissions filed by the mother on 13 August 2023, the Applicant father, Mr Newett (“the father”), and the Respondent mother, Ms Newett (“the mother”), were engaged in ongoing litigation in relation to the parenting arrangements for their children X, Y and Z, and also property proceedings.
Without accepting the following numbers are absolutely accurate, the case management history reveals at least:
(a)60 Court events;
(b)two trials before Justice Baumann;
(c)three appeals;
(d)three family reports;
(e)87 subpoenae issued (many by the Independent Children’s Lawyer); and
(f)Numerous Applications in a Case, Contravention Applications and amended Applications and Responses (estimated by the father to be 60 in number).
I also, by way of context, note that the maternal grandmother, Ms Adlam, participated in the parenting proceedings.
Furthermore, proceedings in the State jurisdiction were instituted by the parties, including:
(a)CROSS Applications for protection orders dealt with in the Magistrates Court and, on appeal, in the District Court of Queensland;
(b)Supreme Court proceedings initiated by the mother against Dr A in respect of his single expert psychiatric report, produced for these Family Law proceedings; and
(c)privately instituted criminal proceedings by the mother against a number of people including the father, his lawyers, some witnesses, the Independent Children’s Lawyer, Mr Carter, and some police officers (including the Commissioner of Police).
This summary is given to demonstrate the very complex history of the dispute between the parties, and to some degree, sets the context for the Application for costs, which is now the focus of these Reasons.
The Court expresses its regret to the parties for the delay in publishing these Reasons.
THE APPLICATIONS AND SUBMISSIONS
The Applicant father, by Application in a Proceeding filed 5 August 2022, supported by an affidavit of the same date, seeks an order that “[w]ithin twenty-eight (28) days of the date of these orders, the Respondent, [Ms Newett] pay the Applicant, [Mr Newett] a lump sum of costs fixed at $224,299.39, or such other sum as the court deems appropriate.” This Application was filed within 28 days of the final parenting Judgment, and in those circumstances, I am satisfied r 12.13(b) if the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) has been complied with as required. To the extent that the earlier property Reasons and Orders were made in May 2021, I would invoke r 15.06 of the Rules if necessary.
Although the final property Orders were made by me on 20 May 2021 (those proceedings continuing after the parenting proceedings were bifurcated on 30 November 2020), the Application for costs was not filed until after the Court had delivered Reasons for final parenting Orders on 8 July 2022.
Ms Newett, as she was perfectly entitled to do so, appealed the final property Orders which appeal was dismissed by the Full Court on 31 January 2023 (see Newett & Newett (No 8) (2023) FLC 94-128).
The mother also appealed the final parenting Orders made, which appeal was dismissed by the Full Court on 31 March 2022 (see Newett & Newett (No 9) (2023) FLC 94-133).
Although not relevant for this costs Application, the mother filed an Application to set aside and vary the final property Orders (in part under s 79A of the Family Law Act 1975 (Cth) (“the Act”), which Application was dismissed by Jarrett J (see Newett & Newett (No 4) [2022] FedCFamC1F 624).
On 30 August 2022, the Court ordered that the father’s costs Application be listed before me after the Full Court’s determination of the mother’s property appeal.
Subsequently, after both appeals had been finalised (and noting the mother’s Application to the High Court for special leave was refused by the High Court of Australia), I ordered in chambers on 12 June 2023:
1.That by no later than 4.00pm on 3 July 2023, the father file and serve written submissions (including with quantification) in respect of his costs Application filed 5 August 2022.
2.That by no later than 4.00pm on 24 July 2023, the mother file and serve written submissions in response.
3.That by no later than 4.00pm on 7 August 2023, the father file and serve any written submissions strictly in reply.
4.That unless otherwise ordered, the father’s costs Application be considered on the papers in chambers.
Submissions and further material were then filed as follows:
(a)On 28 June 2023, the father filed written submissions;
(b)On 23 July 2023, the mother filed an amended Response to an Application in a Proceeding seeking orders, with the basis of “justification” articulated as follows:
1. That the Written Submission filed 28 June 2023 by the Applicant husband, [Mr Newett] be struck out
Justification:
due to perjury and misleading of the Court by the Husband, stating the Applications in Response and Applications in general brought by the Wife were “vexatious”, and that the Wife has funds of $224,000 “reasonably available” where (a) she does not, and (b) it is clear the Husband simply wants more than 100% of the Property Pool allocated to himself, and where he is “simply dissatisfied” with His Honour’s Final Judgment on those matters, and is seeking to overturn those findings without proper Appeal.
2. That the Application in a Proceeding filed 5 August 2022 by the Applicant husband, [Mr Newett] be dismissed,
Justification: pursuant to requirements in Penfold v Penfold for failure to provide adequate reason and for lying to the Court that the Wife has been vexatious; and also by bringing irrelevant matters from other Jurisdictions, where it is excess of jurisdiction for this Court to make orders in respect of those matters, or override orders of those Courts for no application of costs.
3. That the Court issue a Vexatious Litigation Order to the Applicant husband, [Mr Newett], pursuant to s102QB Family Law Act,
Justification: specifically on the grounds the proceedings are (a) an act of Family Violence consistent with s4AB definitions of the Family Law Act and have (b) been brought to annoy and harass and threaten the Respondent Wife causing her undue stress, trauma and work in Response of this Application; (c) on improper, malicious and vexatious grounds with a clear abuse of Court process for unjust enrichment.
4. That the Applicant, [Mr Newett] pay the Respondent Wife’s costs of and incidental to these proceedings, on an equal work for equal pay basis, at rates equivalent to his own Barrister,
Justification: under provisions available in s117(2) Family Law Act and per Penfold v Penfold - Full Court appeal would determine this payment is reasonable on the facts of the case - as a High Court authority.
5. That the Solicitor, [Mr Armstrong] be referred to the Legal Services Commission by Baumann J. seeking his deregistration;
Justification: in respect of breaching QLS Ethical Code of Conduct, the FCFCOA Act in failing to provide documentation for explicit detailed activity-based costs to the Parties and Court, and the Central Practice Directions to ensure , bring false Applications to the Court, making false and misleading statements, defaming the Respondent to the Court, and encouraging the Court to make orders in excess of jurisdiction.
(As per the original)
This amended Response was supported by affidavit affirmed 21 July 2023 and written submissions filed 24 July 2023.
(c)On 2 August 2023, written submissions in reply were filed by the father; and
(d)On 13 August 2023, written submissions in reply were filed by the mother.
Subject to what follows in these Reasons, I have read and considered all of this material. It is also to be acknowledged that I rely upon various Reasons for Judgment (particularly after the two separate substantive trials) delivered by me on:
(a)20 May 2021 in relation to property proceedings (see Newett & Newett (No 5) [2021] FamCA 383) (“the property Judgment”); and
(b)8 July 2022 in relation to parenting proceedings (see Newett & Newett (No 2) [2022] FedCFamC1F 439) (“the parenting Judgment”).
OTHER RELIEF SOUGHT BY THE MOTHER
In her amended Response filed 23 July 2023, the mother sought fresh relief – in effect seeking to expand what was the father’s only pending Application for costs.
That additional relief sought orders:
(a)for a “vexatious litigant order” against the father pursuant to s 102QB of the Act (order 3); and
(b)for an order that the father’s lawyer “be referred to the Legal Services Commissioner by Baumann J seeking his deregistration” [sic] (order 5).
This relief sought by the mother will not be considered because:
(a)it has not been initiated in the correct way;
(b)it is not, in my view, in the interests of justice to allow litigants to simply continue to add on relief to what is essentially a costs application;
(c)if the mother wishes to seek these orders, she would need to file an Initiating Application. As no orders have been made that the mother is a vexatious litigation (to the best of my knowledge and information), she is not currently restrained from making a proper application, however like all litigants, and she might be met with a Response seeking security for costs or summary dismissal, considering the history of this matter and absent any new evidence (at least in a parenting application) sufficient to meet the new prescribed s 65DAAA of the Act; and
(d)I do not regard it as appropriate to expect the father and/or his solicitor to incur costs in seeking to respond to the mother’s cross applications (if that is what they are), in the circumstances of this matter where the mother has sought to initiate such relief in this way.
Accordingly, I will dismiss paragraphs 3 and 5 of the amended Response filed 23 July 2024.
COSTS PRINCIPLES
The principles that apply to a costs application are well settled and hardly controversial.
Section 117(1) of the Act provides that, subject to s 117(2), each party shall bear their own costs.
However, s 117(2) of the Act empowers the Court to make an order for costs as it considers just in the opinion of the Court and after considering, in particular, the factors set out in s 117(2A), provided there are circumstances which justify the Court making an order for costs.
Although the lengthy affidavits and submissions at times seek to reagitate many of the issues during the case management, the trials and even the appeals, I have formed the view that the best way to illuminate how I have reached the conclusions demonstrated by the Orders I now make, is to use the pathway identified through the s 117(2A) factors. It does need to be identified, that with the litigation history briefly set out in the introduction to these Reasons, I have a perhaps unique understanding of the issues involved.
It is not necessary for a Judge to deal with every allegation and every submission when delivering Reasons for Judgment, and because of the wide discretion available to a Judge when determining a costs application, that is even more appropriate.
I will be clear; I do not propose in these Reasons to again be drawn into the issues already decided and where no Appeal against my decisions enjoyed success for the mother.
FINANCIAL CIRCUMSTANCES
There is little recent financial information available to the Court, however the Court finds:
(a)the husband did receive funds from the sale of the house by the bank in the region of $358,994;
(b)the mother did receive funds from the same sale of approximately $225,299;
(c)the mother says she is essentially in receipt of payments from an income protection policy of $1,892 per week – which is her only income as she has been unable to work; and
(d)the father’s last Financial Statement revealed gross income exceeding $3,000 per week. The mother says he also receives child support paid by her of $546.75 per month, and that she is in credit with Services Australia of over $7,000.
Importantly, the mother swears that at 16 June 2023, she has no savings and has effectively used the funds from the sale of the home to pay debts and by committing to upfront payments for a long-term housing rental.
Consistent with the mother’s oft quoted belief, at paragraphs 39 to 40 of her affidavit, the mother states that:
39.The legal manoeuvrings of the Applicant’s legal team have been methodically orchestrated to be extremely confrontational, excessive and deliberately protracted so as to maximise personal gain for themselves and force me (the Respondent) into capitulation by means of financial ruin using the Family Court(s) in Brisbane, QLD as their vehicle to do so.
40.Directly as a result of these extremely toxic, confronting and deliberately protracted proceedings and the theft of my money and business by [Mr Newett], I have been rendered to be virtually impecunious.
(As per the original)
Whilst I am prepared to accept the likelihood, at this time, is that the mother is “virtually impecunious”, I do not accept and simply reject her characterisation of the father’s conduct.
I accept authority (see for example Buckley & Buckley (2013) FamCAFC 150) makes clear that impecuniosity is not a bar to a costs order being made, if otherwise justified.
LEGAL AID
The father was never in receipt of legal aid for the proceedings, and says his costs exceeded $800,000 under his Costs Agreement with this lawyer.
Only when the trials were listed, did the parties become entitled to seek access to the Commonwealth Cross-Examination Scheme created to support matters where s 102NA of the Act applied. Ms Newett had at least three solicitors appointed under the scheme. She did not ultimately retain any of them because of her inability to accept and comply with the condition of the grant of aid. It does not seem as if any lawyers appointed to assist the mother, for the limited periods of their appointment, undertook any significant legal work. After the initial retainer of independent lawyers by the mother ceased, she remained without legal representation.
THE CONDUCT OF THE PARTIES TO THE PROCEEDINGS
The father submits, and I agree this is the primary factor in this case, that the mother’s conduct throughout the proceedings is “notable”. In making this submission, the father relies particularly on paragraphs 22 to 33 of his affidavit which he says demonstrates:
(a)the delays caused by the mother;
(b)the “some 40 interim applications filed by the mother during the course of the proceedings in which she sought a total of 619 interim orders”;
(c)the vast majority of those applications were clearly vexatious and often beyond power – and I infer, logic.
(d)ancillary Applications initiated by the mother; and
(e)many unsubstantiated allegations against the father of theft, fraud, domestic violence, child abuse and neglect, sexual abuse and “conspiracy”,
all of which required a response and were found without merit. The father asserts “there could not be a better example of the parties adverse conduct”.
In reply, as might have been expected, the mother’s affidavit from paragraph 66 gives evidence in response, under various headings all directed to the alleged behaviour of the father, his lawyers and other persons. It is, in my view, significant that it is difficult to find (although it might be there in the mass of material) any concession or acknowledgement by the mother that her conduct in the litigation was both excessive and at times, entirely misdirected. Whilst in my parenting Judgment I explained that the mother’s reaction to the interim change of residence seemed to fuel a great deal of her desire to maintain the fight for herself and her children, this does not excuse some of the mother’s conduct. Dealing with the various “headings” in her affidavit and submissions briefly I say:
Conduct of the father
(a)The mother’s complaint about the father’s actions of domestic violence has to be seen within the context of the trial before a magistrate and the mother’s entirely unsuccessful appeal to the District Court. I do not accept now, or at the time, that the father’s legal team committed family violence.
Failure to engage in family dispute resolution
(b)The father’s insistence that he would only attend family dispute resolution with his solicitor was a right he was entitled to exercise. As events unfolded, these parents exhibited no capacity to resolve most issues by negotiation.
Fathers’ instigation of proceedings
(c)The father was perfectly entitled to initiate proceedings in March 2018 – as could have the mother, who at that time had the care of the three children and possession of the family home.
Collusion with Independent Children’s Lawyer
(d)The mother’s assertion of collusion between the father, his lawyer and the Independent Children’s Lawyer was rejected by me entirely when the mother’s Application for the Independent Children’s Lawyer to be discharged was dismissed.
(e)The mother says the father filed 26 Applications seeking 531 orders and he filed “in the order of 46 affidavits”. My view is that both parties were heavily engaged, and each was “forced to respond”, but that some of the results of the mother’s Applications is relevant to costs. I do accept, as the mother contends, that the father was unsuccessful in having the mother declared a “vexatious litigant” despite four separate Applications.
(f)The mother is correct that the father did not proceed with his Contravention Application filed 16 January 2019. The mother’s assertion (at paragraph 120 of her affidavit) that the father failed to provide proper disclosure in the property proceedings was dealt with me in my property Judgment.
The father lying to the Court
(g)At paragraphs 121 to 161 of her affidavit, the mother, in some detail, seeks to particularise a range of complaints about the father during the proceedings and particularly in the domestic violence proceedings. Whilst I accept the mother has been significantly and adversely affected by her failure to persuade the Court of these issues, the fact remains that a number of findings have been made which conclude otherwise. No benefit arises from engaging in the mother’s arguments yet again.
Father’s denial of medical condition
(h)Again, this matter has been determined, although not in the way the mother sought as her evidence at paragraph 162 to 175 hoped.
Father’s unsubstantiated and supposed voluntary surrender of possession of the marital home to the ANZ bank
(i)The Reasons for Judgment published on 20 May 2021 dealt with the controversy about the bank’s actions in exercising their powers as mortgagee in possession. In the ultimate analysis, the nett proceeds of sale available for distribution (estimated at around $191,000 at trial) swelled to over $580,000 by the time of sale. To the extent that the wife at paragraphs 141 to 161 raises issues about the father’s interactions with the bank, those issues seem irrelevant when the increase in the value created a benefit to the parties. It was the father’s consistent position that he could not afford the mortgage payments, and neither could the mother who was then renting elsewhere. No real effective criticism of the father’s actions is open to the mother in my view.
Addressing “unsubstantiated allegations” allegations
(j)The mother at paragraphs 176 to 190 returns to her complaints about the father not being found to have perpetuated family violence against the mother and sexual abuse against the children. Despite her evidence, the findings of these issues made by the Court stand. No benefit is achieved in trying to persuade the mother otherwise, when all the available evidence was tested at trial.
Father’s failure to comply with Orders
(k)At paragraphs 191 to 220, the mother gives particulars of what she says is evidence of non-compliance by the father – the father admits in his submissions to some non‑compliance. However, the mother’s assertions, for example, that the father breached domestic violence orders finds little support when the father has not been charged with any such breaches. To the contrary, the mother’s consistent refusal to enter back into Queensland, where the children live, seems to be based on a fear she holds that she will have to face unjust allegations that she breached the Queensland protection order for the father’s benefit. Even if, as the mother asserts, the father is not compliant with his tax obligations (and no finding was made in that regard), that is not conduct relevant to s 117(2A)(c) of the Act.
(l)The mother defends her behaviour at paragraphs 221 to 226, claiming that her “status as an inexperienced and vulnerable self-represented Respondent in these proceedings has been considerably exploited by the Applicant and his legal team, the Court itself and others”. I do not accept this evidence and particularly reject the assertion, often made by the mother of misconduct by judicial officers including myself. It is not necessary to deal with the mother’s views on her appeals.
PROCEEDINGS NECCESITATED BY THE FAILURE OF A PARTY TO COMPLY
I particularly draw attention to the mother’s failure to return the children to the father in December 2020 necessitating an urgent recovery order Application. The evidence was that the mother had elected to leave Queensland with the children (see Newett & Newett & Anor (No 6) [2020] FamCA1056 (“the recovery order Judgment”). The father, who had an Order for the children to live with him, had no option other than to commence proceedings. I rely upon those Reasons to give context.
Certainly, the mother’s actions and her thereafter refusal to return to Queensland to see her children shaped the ultimate final parenting trial in September 2021.
WHETHER EITHER PARTY HAS BEEN WHOLLY UNSUCCESSFUL
It is open to find, and I do find, that in some of the many interim Applications, involving generally multiple issues, neither party was wholly unsuccessful in respect of every order sought. In my view, it is not either necessary, efficient, or helpful when exercising a broad costs jurisdiction in this matter, to attempt to deal with every Application filed and determined.
OFFERS OF SETTLEMENT
The father points to an offer of financial settlement made by him on 12 October 2018 – very early in the conflict. Although the offer, on its terms, might suggest it was favourable to the mother, the mother characterised it as the father seeking to transfer his “over considerable financial liabilities onto me”. At that early stage, significant dispute as to discovery and in particular the wife’s asserted business interests she says she had created in a corporate entity existed. I do not regard the offer, which related to property matters only, as of any relevance in the determination of this Application.
OTHER MATTERS
The Applicant concludes his submissions by stating:
The Wife’s conduct throughout these proceedings has been of such a nature that costs must flow.
In addition to the unnecessary costs incurred by the Husband associated with the various applications made by the Wife, the Husband has incurred costs relating to the Wife’s various applications in the High Court of Australia naming nine (9) Judges and Registrars of the Federal Circuit and Family Court of Australia. The Attorney General and Commissioner of Police, both state and federal, Judges of the Supreme and District Courts of Queensland, The Directors of the DPP, Child safety and Queensland health, the Chief Executives of the CCC, Queensland Law Society, the Bar Association, ANZ and Services Australia; and the Commissioner of Taxation. He has further incurred costs in addressing complaints made by the Wife to the Chief Magistrate of the Magistrates Court regarding the domestic violence proceedings, to the Chief Justice of the District Court regarding the domestic violence appeal, to the Crime and Corruption Commission regarding Police, Child Safety, Queensland Health, the Magistrates Court and the District Court, to the Parliamentary Committee for Crime and Corruption in regard the Crime and Corruptions Commissions failure to respond to her complaint, to the Police Commissioner in relation to what the Wife considered was Police inaction, to the Legal Services Commission regarding the conduct of the various solicitors and barristers involved in the various proceedings and to Chief Justice Alstergren regarding the conduct of the solicitors, the Brisbane Registry, Registrars and Judges in the Federal Circuit Court and Family Courts.
(As per the original)
The mother’s most succinct conclusion on the question of costs can be found at paragraphs 310 to 317 of her affidavit, particularly contending that:
(a)the principles relating to costs “is well settled law”;
(b)“[f]rom being forced into these disgusting Family Court proceedings on 1 March 2018 have paid my own costs…”;
(c)“[t]he Court has already dispensed with matters in relation to the Respondent mother’s conduct deeming said alleged conduct to be appropriate on no less than four separate occasions” (see paragraphs 108 to 115 of the affidavit); and
(d)“… there are no justifying or exceptional circumstances in the Applicant father’s claim for costs that would warrant the Court deviating from its “usual course”” of applying s 117(1) of the Act.
DISCUSSION AS TO LIABLITY
Whilst the husband’s submissions as to the costs, and no doubt anxiety, he incurred responding to complaints and proceedings in other Courts is understood, it is not relevant to consider those matters when the Court must first determine whether circumstances justify an order for costs.
Similarly, I reject the mother’s submissions that, in dismissing attempts by the husband to have a vexatious litigant order made against the mother, this should be interpreted as a finding that the mother had “not abused” the process of the Court or partake in vexatious conduct during the proceedings. Paragraphs 193 to 217 of the parenting Judgment deals with the Application by the father for an order restraining the mother from commencing proceedings relating to the children without first obtaining leave pursuant to s 102QE of the Act. In dismissing that Application, I acknowledged at [201] the mother’s conduct leading her to “passionate advocacy”.
I have come to the conclusion that:
(a)the circumstances do not justify an order for costs in respect of the financial proceedings including the final hearing;
(b)there are no circumstances that justify; as the mother seeks in her Response at paragraph 4, for an order that “…the Applicant, [Mr Newett] pay the Respondent Wife’s costs of and incidental to these proceedings, on an equal work for equal pay basis, at rates equivalent to his own Barrister…” or any other basis. Apart from the early stages of litigation in Division 2 of the Federal Circuit and Family Court of Australia, the mother was at times without legal representation; and
(c)the circumstances do justify an order for costs in respect of the Applications made by the mother for my recusal (all dismissed); the Application by the mother to have the Independent Children’s Lawyer removed (all dismissed); and the father’s Application for a recovery order.
Otherwise, I am not satisfied that the mother’s behaviour justifies an order for costs in the parenting proceedings.
QUANTIFICATION
The father claims to have incurred costs exceeding $800,000 pursuant to his Costs Agreement with the firm he chose to retain. It is virtually impossible to distinguish what costs related to the parenting proceedings and what related to the property proceedings – at least during the case management pathway.
Although the quantification of the costs claimed by the father is simply explained – namely he seeks all the funds received by the wife under the property Judgment – that is not, with respect, a proper approach.
Firstly, I am not satisfied that it is appropriate to award costs on an indemnity basis.
Secondly, apart from the Application for which costs will flow, I have considered that in many of the interim and interlocutory Applications, various degrees of “success” were enjoyed by both the father and the mother.
Thirdly, whilst I do have a level of concern that any order for costs against the mother will:
(a)likely lead to an appeal the father will have to respond to; and
(b)on the mother’s evidence, enforcement by the father will be difficult and possibly futile,
nonetheless, I conclude that these issues should not prevent the proper exercise of my wide discretion.
I identify the Applications for which an order for costs should flow as:
(a)amended Application in a Case filed by the mother on 13 March 2020 seeking the Independent Children’s Lawyer be removed (and other relief) dismissed by Baumann J on 17 June 2022;
(b)Response filed 31 August 2020 by the mother seeking an order that the Independent Children’s Lawyer be discharged and declared a “vexatious litigant towards the mother”, dismissed by Baumann J on 11 September 2020. The Independent Children’s Lawyer and the father’s costs of the Application were reserved;
(c)Application in a Case filed 7 December 2020 by the father seeking an urgent listing and recovery order, heard on 9 December 2020 when a recovery order was made and costs were reserved;
(d)Application in a Case filed 11 December 2020 by the mother seeking revocation of the recovery order and inter alia that Baumann J “recuse himself” which was heard on 11 February 2021 (after the children had been recovered on 15 December 2020) and which Application for recusal was dismissed on 25 February 2021;
(e)Amended Application in a Case filed on 24 May 2021 by the mother, and reaffirmed the mother’s further Application in a Case filed 11 July 2021 for Baumann J to recuse himself which was dismissed on 29 July 2021.
In addition, it is my view that some allowance for the Application for costs should be made as the father’s application has been partially successful.
I do not believe it is appropriate to either:
(a)invite further submissions as to an appropriate level of costs for the events referred to; or
(b)order costs be agreed and if not agreed, assessed.
Such options, which I have considered, will only further create costs and appeals.
I propose to fix costs as I am entitled to do, in accordance with the Rules (r 12.17).
I fix costs in respect of the recovery order Application at $5,000, and for the Applications to discharge the Independent Children’s Lawyer (three) and recusal (two) at $3,500 each.
To this total of $22,500 I would add on allowance of $1,500 for the husband’s cost Application.
ORDERS
I will order the mother, Ms Newett, to pay a contribution to the costs of the father, Mr Newett, for the proceedings, fixed in the total sum of $24,000 payable within 60 days.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 10 September 2024
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