Newman & Tate (No. 2)
[2021] FamCA 31
•4 February 2021
FAMILY COURT OF AUSTRALIA
Newman & Tate (No. 2) [2021] FamCA 31
File number(s):
SYC 4869 of 2017
Judgment of:
MCCLELLAND DCJ
Date of judgment:
4 February 2021
Catchwords:
FAMILY LAW – COSTS – Where the mother seeks the father pay legal costs incurred by her incidental to interim parenting proceedings which included a Contravention Application and Application for a recovery order, heard and determined by a Senior Registrar, and an Application for a review of the Senior Registrars decision – Where the father opposes the orders sought by the mother – Whether the conduct of the parties justifies making of orders for costs – Where the circumstances justify an order for the totality of costs incurred on an indemnity basis – Order made for costs to be paid by father in respect to the Contravention and recovery order Applications in a fixed sum.
Legislation:
Family Law Act 1975 (Cth) s 70NFB, 117
Family Court Rules 2004 (Cth) r 19.18
Cases cited:
Byrnes v Brisconnections Management Co Ltd (No. 2) [2009] FCA 1432
Cross & Beaumont (2008) 39 Fam LR 389
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Hawkins & Roe (2012) 47 Fam LR 526
Hitch v Hitch (2012) 47 Fam LR 603
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Kohan and Kohan (1993) FLC 92-340 at 79,614
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Penfold v Penfold (1980) 144 CLR 311 at 315.
Stoian & Fiening (Costs) [2014] FamCA 944
Number of paragraphs:
47
Date of last submission/s:
12 January 2021
Date of hearing:
In Chambers by written submissions
Place:
Sydney
Solicitor for the Applicant:
Eddy Neumann Lawyers
Solicitor for the Respondent:
Mills Oakley Lawyers
ORDERS
SYC 4869 of 2017 BETWEEN: MS NEWMAN
ApplicantAND: MR TATE
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
4 FEBRUARY 2021
THE COURT ORDERS THAT:
1.Mr Tate is to, within 28 days, pay Ms Newman the sum of $23,092.25 in respect to legal fees incurred by her in relation to her Application in a Case filed 9 October 2020 and Contravention Application filed 12 October 2020, heard and determined on 20 October 2020.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newman & Tate has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McClelland DCJ:
INTRODUCTION
This matter concerns an Application for costs of and incidental to interim parenting proceedings – an Application in a Case filed 9 October 2020 by Ms Newman (“the mother”), a Contravention Application filed 12 October 2020 by the mother (collectively “the Contravention proceedings”) and an Application for Review of a Senior Registrar’s decision filed 23 November 2020 by Mr Tate (“the father”).
I have determined that an order for costs should be made in favour of the mother in respect to the Contravention Application filed on 12 October 2020. I have, however, dismissed the mother’s Application for costs in respect to the subsequent proceedings.
APPLICATIONS
The orders sought by the mother are set out in her Application in a Case filed 7 January 2021 as follows:
1. That the Respondent Father pay to the Applicant Mother the sum of $90,252.33 being the legal costs incurred by the Applicant Mother for Court attendances on the following dates:
20 October 2020 - $31,939.60
23 October 2020 - $3,430.90
29 October 2020 - $11,210.65
4 & 5 November 2020 - $13,189.00
1 December 2020 - $4,652.63
16 December 2020 - 15,829.55
Estimated costs of and incidental to this Application in a Case - $10,000
2. Any other such Order that the Court deems fit.
The father, by way of his Response to an Application in a Case filed 12 January 2021, seeks that the mother’s Application be dismissed and that each party pay their own costs of the proceedings.
RELEVANT BACKGROUND
On 20 October 2020, the matter first came before Senior Registrar Campbell whereby the mother sought an order for the recovery of the children, X born in 2005 and Y born in 2005. The mother alleged that, on 3 October 2020, the father was in contravention of Order 8 of the orders made on 4 March 2020 by the Federal Circuit Court of Australia in that the father did not, on 26 September 2020, return the twin children, Y and X, to the mother’s care at 6.00pm following the children spending one half of the school holidays with him.
That Application was successful with Senior Registrar Campbell, on 20 October 2020, making the following orders:
IT IS ORDERED THAT
1.The Response to an Application in a Case filed by the father on 16 October 2020 is dismissed.
2. The Orders made by Judge Smith on 4 March 2020 remain in force and effect.
3.The father must do all acts and things necessary to cause the children, X born in 2005 and Y born in 2005, to return to live with the mother by 4.00 pm on 22 October 2020.
The father complied with the orders made on 20 October 2020 however, on 22 October 2020, an unfortunate incident occurred which resulted in X being admitted for psychiatric treatment in circumstances that I have detailed in my reasons for judgment dated 24 December 2020 (“the 24 December 2020 decision”) (at [59]–[64]).[1]
[1] [2020] FamCA 1114
On 23 October 2020, Senior Registrar Campbell made the following notations and orders, which helpfully summarise the events that lead to the proceedings on that day
IT IS NOTED THAT:
A.Orders were made by the Court on 20 October 2020 for the twins Y and X (each 15 years old) to return to their mother’s care in accordance with the 4 March 2020 orders of Judge Smith. Those orders were contrary to the expressed wishes of X and Y.
B.Following his return to the mother’s care, X was subsequently taken to the Emergency Department of B Hospital after expressing suicidal thoughts. Police were involved and an ambulance called.
C.X was assessed as at low risk of self-harm and, following extensive discussions with each parent and the hospital social worker, X was discharged from hospital into his mother’s care.
D.The matter came before the Court urgently this afternoon at the request of the Independent Children’s Lawyer.
E.Both the Independent Children’s Lawyer and the father’s lawyer expressed the view that X’s mental state may be exacerbated by a perception that his wishes have not been heard by the court and may be ameliorated by a Child Inclusive Conference.
F.Both parents, X and Y, and the third son Z were interviewed by a single expert, Mr C, for a report that was before Judge Smith when the 4 March 2020 orders were made.
IT IS ORDERED THAT
1. The matter is adjourned to 4.00 pm on Thursday 29 October 2020.
2.Leave is granted to the legal representatives and to the Independent Children’s Lawyer to issues subpoenas on short notice to the following persons/entities with such subpoenas to be returnable by 4.00 pm on 27 October 2020:
a. B Hospital;
b. Ms E of D Psychology, Suburb F; and
c. NSW Police.
3. The mother must file and serve an affidavit by 4.00 pm on 27 October 2020.
4.Leave is granted to the legal representatives and to the Independent Children’s Lawyer to approach the Chambers of Senior Registrar Campbell to seek a relisting of the matter between now and the adjourned date in relation to any urgent matters that may arise.
5.The parties and the children, Z born in 2008, X born in 2005 and Y born in 2005, shall attend a Child Inclusive Conference with a Family Consultant on 28 October 2020.
6.The Child Inclusive Conference shall take place by Microsoft Teams with the mother to attend at 9.00 am and the father to attend at 10.00 am.
7.Leave is granted to the legal representatives of each party and to the Independent Children’s Lawyer to photocopy documents produced on subpoena, including the material to which the exception in Rule 15.30(2)(b) of the Family Law Rules 2004 (Cth) applies (“the copy permitted material”), for the purposes of scanning the same to tender in a hearing conducted electronically on the following conditions:
a. A legal representative must not:
i. provide the copy permitted material to their client,
ii. permit their client to copy the copy permitted material, or
iii. allow any other person to provide the copy permitted material to the client, or copy the copy permitted material to provide such copies to the client.
b.Subject to the following sub-paragraphs, a legal representative or Independent Children’s Lawyer must retain all copy permitted material their possession or control.
c.A legal representative or Independent Children’s Lawyer must not distribute the copy permitted material to any other person, except another lawyer briefed or engaged to appear at the electronic hearing or in accordance with a further order of the court.
d.Except for the purposes of the preceding sub-paragraph, a legal representative or Independent Children’s Lawyer must not create more than one copy of the copy permitted material and must not allow any other person to copy the copy permitted material.
e.At the conclusion of the electronic hearing the following persons must destroy all copies of the copy permitted material in their possession or control;
i. a legal representative;
ii. an Independent Children’s Lawyer;
iii.a lawyer briefed or engaged to appear at the electronic hearing, and
iv.a person receiving the copy permitted documents pursuant to an order of the court.
f.A sealed copy of these orders must be provided to any person receiving a copy of the copy permitted material.
g.Any person receiving a copy of the copy permitted material must retain all copy permitted material in their possession or control and must not:
i.distribute the copy permitted material to any other person (including a party to the proceedings), and
ii. create any further copy of the copy permitted material.
8.Any lawyer who obtains a copy of the copy permitted material pursuant to the leave granted by these orders is taken to have given an undertaking to the court that they will strictly adhere to the conditions set out above and subject to which such leave is given.
Significantly, Senior Registrar Campbell recorded in Notation D that the proceedings came before the Court urgently at the request of the Independent Children’s Lawyer. There was no suggestion that the Application was, in the circumstances, in any way frivolous, vexatious, or unreasonable.
The proceedings were adjourned to return to the Court, on 29 October 2020, for essentially a report back. On 29 October 2020, the matter was further adjourned to 4 November 2020. In circumstances where the Child Inclusive Conference Memorandum prepared by Ms G, Family Consultant, is dated 30 October 2020, it can reasonably be inferred that the adjournment occurred as a result of the fact that the memorandum was not available to the Court or the parties on 29 October 2020.
On 4 November 2020, the matter was adjourned part heard until the following day. The mother, as the Applicant, carries the onus of satisfying the Court as to why an order for costs should be made, has not provided a transcript or other account of the proceedings which occurred on 4 November 2020 that enables me to make an assessment of the issues dealt with by the Court on that day, the evidence presented to the Court or the conduct of the parties.
On 5 November 2020, Senior Registrar Campbell made orders which subsequently became the subject matter of the father’s Application for review. Those orders made on 5 November 2020 were as follows:
PENDING FURTHER ORDER IT IS ORDERED THAT
1.The Order made by Judge Smith on 4 March 2020 that the child X born in 2005 live with the mother are suspended.
2. X shall live with the father.
3.The children Y born in 2005 and Z born in 2008 shall live with the mother.
4.Y and Z shall spend time with the father as agreed between the parties, such time to be supervised by a commercial supervision service.
5.Leave is granted to the parties to approach the Chambers of Senior Registrar Campbell for a relisting of the matter in relation to any dispute concerning the frequency or length of supervised time that Y and Z spend with the father.
By way of an Application in a Case filed 23 November 2020, the father sought a review of the orders made by Senior Registrar Campbell on 5 November 2020.
The Court records indicate that the matter was before Registrar McNamara, the Docket Registrar allocated to this matter, on 1 December 2020, for a ‘Case Management Hearing’. There is no suggestion that the orders made by Registrar McNamara are other than directions made with a view to this matter being prepared for hearing or, if possible, family dispute resolution. Again, the mother, as the Applicant in these proceedings, who carries the onus of satisfying the Court as to why an order for costs should be made, has not presented any material that indicates that any party conducted themselves other than with propriety at that case management hearing before Registrar McNamara.
On 16 December 2020, the father’s Application for review filed 23 November 2020 was heard before me. The 24 December 2020 decision provides further details of those proceedings and the orders made following that hearing.
It is apparent from the Affidavit of Ms AA filed 7 January 2021 in support of the mother’s Application for costs that the mother is seeking an order for costs in respect to the totality of costs which have been incurred by her in respect to each of the court events outlined in her Application to which I have earlier referred. Effectively, therefore, the mother is seeking an order for indemnity costs.
LEGAL PRINCIPLES
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) 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.
(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.
There is nothing before me to indicate that the orders made by Senior Registrar Campbell on 20 October 2020 were made pursuant to s 70NFB of the Act, referred to above. Accordingly, I will apply the general principles that apply to costs as set out in s 117 of the Act.
Those provisions make clear that, while the general rule in family law proceedings, other than those excluded from the operation of s 117(1) of the Act, is that each party bears his or her own costs. The court, however, may order a party to pay the costs of another where there are circumstances justifying the making of such an order.
As such, a litigant seeking a costs order must establish that the justice of the case requires an order for costs, by reference to the non-exhaustive list of statutory considerations set out in s 117(2A) of the Act, before such an order is made. Although the applicant for costs must establish circumstances which would justify such an order, it is not the case that a costs order can only be made in what has been described as “a clear case”: see Penfold v Penfold (1980) 144 CLR 311 at 315.
The considerations set out in s 117(2A) of the Act must be taken into account in deciding whether or not to order a party to pay the costs of another. No one factor under s 117(2A) prevails over any other factor. It is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion: see Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at 80,400, [24] per Strickland J.
Accordingly, there is “nothing to prevent any factor being the sole foundation for an order for costs” being made: see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at 130, [41].
There is some controversy as to whether a different standard applies in considering the issue of costs in respect to property proceedings on the one hand and parenting proceedings on the other.
In Hawkins & Roe (2012) 47 Fam LR 526, the majority (May and Ainslie-Wallace JJ) said at 549:
[147] While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.
However, in Wrensted & Eades (2016) FLC 93-697 (“Wrensted & Eades”), the Full Court (Bryant CJ, Finn and Strickland JJ) expressed some concern with that analysis if it was to be construed as establishing extra-legislative guidelines or criteria for the making of a costs order in parenting cases. In that respect the Full Court said at 81,153:
[103] … However if the majority in Hawkins & Rowe, by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion (Nguyen v Nguyen 169 CLR 245 at 268-270; Gett & Tabet (2009) ALR 504 at [261]-[301] especially at [294]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 per Heydon J at [84] and [85]; F Firm & Ruane and Ors (2014) FLC 93-611) at [163])
I respectfully agree with the reasoning of the Full Court in Wrensted & Eades in finding that there is no distinction in the legislative considerations that the court is required to have regard to in respect to an Application for costs in parenting proceedings, as opposed to property proceedings.
CONSIDERATION
The financial circumstances of the parties
The mother, in her Financial Statement filed 7 January 2021, states that she is a contractor in finance and, by way of summary, her financial circumstances are as follows:
·her average weekly income is $3650;
·her weekly expenditure is $3609;
·the total value of property owned by her is $6470;
·the total value of her superannuation is $162,871;
·the totality of her liabilities is $462,704; and
·she has no additional financial resources.
Comparatively, in his Financial Statement filed 12 January 2021, the father states that he is a self-employed farmer and, by way of summary, his financial circumstances are as follows:
·his average weekly income is $5000;
·his weekly expenditure is $5000;
·he owns no property;
·he has superannuation valued at $10,000;
·he has liabilities of $3000; and
·he has financial resources of $15,000.
The mother contends that the father has not, in his Financial Statement, accurately set out his financial situation. It is not possible, however, in these proceedings, for me to make a determination as to whether that is or is not correct.
On the face of the Financial Statements filed by both parties, in which they both attest to the accuracy of the information which they have provided, I am satisfied that meeting legal fees incurred by the parties in respect to these proceedings presents a hardship for both of them. However, in Cross & Beaumont (2008) 39 Fam LR 389 at 402,[60], the Full Court held that financial incapacity to pay a costs order is not a barrier where the conduct of the party may warrant the making of such an order.
Whether either of the parties are in receipt of legal aid
Neither party has suggested that they are in receipt of legal aid and, accordingly, s117 (2A)(b) of the Act is not relevant.
The conduct of the parties
In addressing s 117(2A)(c) of the Act, the submissions of the mother focused upon the conduct of the father in withholding X and Y in his care following the September 2020 school holidays. Section 117(2A)(c) is, however, focused at the conduct of the parties as litigants, rather than as separated parents generally: see Hitch v Hitch (2012) 47 Fam LR 603. That is not to say, however, that the parties’ conduct prior to the commencement of the proceedings is an irrelevant consideration. Accordingly, I will discuss the conduct of the parties in the context of considering s 117(2A)(g) of the Act.
Having regard to the summary of the proceedings which I have set out above, in the context of events which occurred on 22 October 2020 when X was admitted for psychiatric care, and until when the father filed his Application for review of the Senior Registrar’s decision of 23 November 2020, there is, in my view, no reasonable basis for the mother to assert that the father has acted improperly in respect to the conduct of the proceedings.
The question becomes, whether the father acted unreasonably, improperly, or inappropriately in filing his Application for review of the Senior Registrar’s decision of 23 November 2020 or in respect to the manner in which the father has conducted himself in the proceedings subsequent to making that Application for review. In my view, the father did not act unreasonably in seeking such a review of the Senior Registrar’s decision. Although, in my 24 December decision, I substantially upheld the Senior Registrar’s decision, which I regarded as being appropriate and in the best interests of the children, the Application for review raised issues of substance including, in particular, whether orders should be made for X to continue to live with his father in H City in circumstances where there was a live issue as to whether he would suffer psychological distress in the event of orders being made as sought by the mother for him to be returned to her care in Sydney. There was also a live issue as to whether orders should be made separating the place or residence of X and Y who, as I have noted are, twins.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
This consideration is, in my view, the most relevant consideration. The mother acted entirely reasonably and responsibly in filing her Applications, on 9 October 2020 and 12 October 2020, in which she alleged that, the father was in breach of Order 8 of the orders made on 4 March 2020 in that the father did not, on 26 September 2020, return X and Y to the mother’s home at 6.00pm following the children spending one half of the school holidays with him.
The mother was successful in that Application which was necessitated by the failure on the part of the father to comply with the orders made on 4 March 2020. Those orders required the father to return the children to the mother’s care after they had spent school holiday time with him.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
In the orders made on 20 October 2020, Senior Registrar Campbell dismissed the father’s Response to the mother’s Application in a Case. The father was, as a consequence, wholly unsuccessful in the proceedings with the outcome being that the father was ordered to return the children to the mother’s care.
Whether either party has made an offer in writing to settle the proceedings
The Court has not been provided with any correspondence or other written documentation indicating that either party attempted to resolve the proceedings referred to in the mother’s Application in a Case filed 7 January 2021.
Other matters
A factor that I have had regard to in respect to s117 (2A)(g) of the Act is that the father’s conduct in failing to comply with the orders made on 4 March 2020 has given rise to a subsequent chain of events which has resulted in further disputation between the parties, which is not in the best interests of the parties children, and which has resulted in the parties incurring substantial legal fees.
Summary of s 117(2A) considerations
Having regard to the totality of the s 117 (2A) considerations, I am satisfied that an order for costs in favour of the mother is justified in respect to the contravention proceedings which were heard by Senior Registrar Campbell on 20 October 2020 but not in respect to the other proceedings outlined in the mother’s Application for costs. The question becomes: what should be the amount of those costs?
INDEMNITY COSTS
As noted, in seeking the totality of costs that she has incurred, the mother is, in effect, seeking an order for indemnity costs. I am not satisfied, however, that the circumstances of this case justify an order be made for indemnity costs, which the Full Court confirmed is an order of “an exceptional kind”: see Kohan and Kohan (1993) FLC 92-340 at 79,614.
Rule 19.18 of the Family Court Rules 2004 (“the Rules”) provides for the methods of calculating costs. These include, in r 19.18(1)(a), the court fixing upon a specific amount for costs or, in r 19.18(1)(b), an order for the costs to be assessed on a particular basis.
In Stoian & Fiening (Costs) [2014] FamCA 944 at [91], Kent J endorsed the principles for applying a rule equivalent to r 19.18 of the Rules as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [9]. Those principles are:
i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation“ (All ER page 265)];
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleumat [16];
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788 ];
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schippat [22];
v.the gross sum “can only be fixed broadly having regard to the information before the Court“: Beach Petroleum at 124;
[in Hadid v Lenfest Communications Inc at [35] it was said that the evidence enables fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that…is what the rule contemplates“.]
…
Consistent with those principles, it has been determined that, where a court orders a party to pay costs, it may be appropriate for the court to fix a lump sum. By doing so, the court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: see Byrnes v Brisconnections Management Co Ltd (No. 2) [2009] FCA 1432 at [51].
Having regard to those items listed up until and including 20 October 2020, in the memorandum of fees, being Annexure A to the Affidavit of Ms AA filed 7 January 2021, I am satisfied that an amount of fees that is logical, fair, and reasonable in respect to the contravention proceedings, up until and including that date, is an amount that is two thirds of the total fees rendered up until that point being two thirds of the amount of $26,021.60 which is equivalent to $17,174.25. I am, however, satisfied that, in addition to that amount, it is also logical, fair, and reasonable for the father to pay the totality of counsel’s fees incurred in respect to the contravention proceedings being fees payable to Ms W in the sum of $5918. Accordingly, I make orders for the father to, within 28 days, pay the mother the sum of $23,092.25 being legal fees incurred by the mother in respect to the contravention proceedings, heard and determined on 20 October 2020.
I note that, in her Application filed 7 January 2021, the mother further sought an order in respect to “estimated costs of and incidental” to her Application for costs filed on that day in the sum of $10,000. It is, however, difficult to ascertain the basis upon which that assessment has been made, such assessment, with respect, seems quite excessive. In any event, in circumstances where the mother has been only partially successful in respect to her Application in a Case filed 7 January 2020, I do not propose to make an order for the father to pay costs in respect to that Application.
CONCLUSION
Accordingly, I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 4 February 2021
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