Rittman and Rittman (No 3) - [2011] FamCA 228

FAMILY COURT OF AUSTRALIA

RITTMAN & RITTMAN (NO 3)

[2011] FamCA 228

FAMILY LAW – COSTS – Application for indemnity costs – Where the husband seeks the wife pay two thirds of his total costs at a fixed amount – Where wife opposes such an order – Husband asserts sections 117AB and 117(2) apply – The wife seeks any such costs order be limited to costs causally connected to adverse findings against the wife – Where wife’s credibility was seriously diminished at trial –Where the case is an exceptional one – Indemnity costs are appropriate but in a lesser amount than sought by the father.

FAMILY LAW – COSTS – Section 117AB – Section 117AB requires a mental element whereby the maker knew the statement to be false – The Briginshaw standard of proof applies – False allegation or statement must be particularised – False allegation or statement must go to a relevant issue – One false allegation or statement is sufficient to enliven the jurisdiction of section 117AB – Three false statements found to be established to the Briginshaw standard.

FAMILY LAW – EVIDENCE – Whether a judge may revisit findings previously made for purposes of findings pursuant to section 117AB – In the event previous findings are not specified as meeting a higher standard of proof, a judge is not precluded from revisiting the findings to establish that standard of proof.

FAMILY LAW – COSTS – Section 117(2) – A judge is to have regard to all relevant factors set out in section 117(2A) the provision, but costs may be awarded based on one or more factors – Where the true financial circumstances of the mother remain unknown – Where the mother’s legal costs have not been wholly disclosed – Where an order of indemnity costs would leave the mother’s property settlement significantly depleted – While the financial circumstances of the parties is a relevant consideration, it is not an overwhelming one – Where the credibility of the mother has been impugned by adverse findings – Where the mother’s conduct has permeated the entirety of proceedings – Costs reduced to 60 per cent of indemnity costs – Lump sum ordered to include reserved costs.

APPLICATION FOR COSTS

APPLICANT:

Mr Rittman

RESPONDENT:

Ms Rittman

FILE NUMBER:

BRC

2571

2009

DATE DELIVERED:

1 April 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

25 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Waterman of Counsel appearing for the Applicant Father

SOLICITORS FOR THE APPLICANT:

Harrington Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Galloway of Counsel appearing for the Respondent Mother

SOLICITORS FOR THE RESPONDENT:

Pippa Colman & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr McGregor of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Carter Farquar Lawyers

Orders

1. In full and final settlement of costs of and incidental to the hearing of this matter, the Respondent Mother, Ms Rittman is to pay the costs including reserved costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FamCA 228
Decision Date: 1 April 2011

CaseChat Overview and Summary

In *Rittman and Rittman (No 3)* [2011] FamCA 228, Barry J of the Family Court of Australia considered an application by the husband for indemnity costs against the wife, who opposed the order and sought any costs awarded be limited to those causally connected to adverse findings against her. The husband asserted that sections 117AB and 117(2) of the *Family Law Act 1975* (Cth) applied, arguing that the case was exceptional due to the wife's diminished credibility.

The court was required to determine whether to grant indemnity costs, and if so, to what extent, considering the provisions of sections 117AB and 117(2) of the *Family Law Act 1975* (Cth). Specifically, the court had to assess whether the wife had made false allegations or statements within the meaning of section 117AB, applying the *Briginshaw* standard of proof, and whether previous findings could be revisited to establish this higher standard. The court also had to consider the relevant factors under section 117(2A) in determining the appropriate costs order, including the parties' financial circumstances and the wife's conduct throughout the proceedings.

Barry J found that indemnity costs were appropriate but in a lesser amount than sought by the husband. The court determined that three false statements had been established to the *Briginshaw* standard, thus enlivening the jurisdiction under section 117AB. While acknowledging that the wife's credibility had been impugned by adverse findings and that her conduct had permeated the proceedings, the court also had regard to the fact that an order for full indemnity costs would significantly deplete the wife's property settlement. Consequently, the court reduced the indemnity costs to 60 per cent of the husband's total costs.

In final settlement of the costs of and incidental to the hearing, the Respondent Mother, Ms Rittman, was ordered to pay the costs, including reserved costs, of the Applicant Father, Mr Rittman, fixed at $225,000.

Orders

Orders of the court

1. In full and final settlement of costs of and incidental to the hearing of this matter, the Respondent Mother, Ms Rittman is to pay the costs including reserved costs of the Applicant Father, Mr Rittman fixed at $225,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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