Spalding & Barbaro (No 7)
[2023] FedCFamC1F 921
•26 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Spalding & Barbaro (No 7) [2023] FedCFamC1F 921
File number(s): BRC 6176 of 2021 Judgment of: HOGAN J Date of judgment: 26 October 2023 Catchwords: FAMILY LAW – COSTS – Where the mother seeks costs on an indemnity basis – Where the father’s application was wholly unsuccessful – Where the Court is persuaded that the circumstances justify the making of an order for costs on the party and party basis for a portion of the proceeding – Where the Court is persuaded that it is just to make an order for costs on an indemnity basis in relation to other costs Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248;
D & D Costs (No. 2) (2010) FLC 93-435; [2010] FamCAFC 64
In the Marriage of Kohan (1993) FLC 92-340; [1992] FamCA 116
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Spalding & Barbaro (No 2) [2022] FedCFamC1F 1000
Spalding & Barbaro(No 3) [2022] FedCFamC1F 1017
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division: First Instance Number of paragraphs: 57 Date of last submission/s: 13 October 2023 Date of hearing: Determined in Chambers following the receipt of written submissions Place: Brisbane Solicitor for the Applicant: Mills Oakley Lawyers by way of written submissions filed 22 September 2023 The Respondent: No submissions provided ORDERS
BRC 6176 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARBARO
Applicant
AND: MR SPALDING
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 117(2) of the Family Law Act 1975 (Cth), the Respondent pay those of the Applicant’s costs of and incidental to the Initiating Application filed 13 May 2021 which were incurred after 23 March 2022 on the party and party basis in such amount as is agreed between the parties in writing or, failing agreement, as is assessed in the manner provided for in this order and, where the order does not specify, as is provided for in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2.Pursuant to s 117(2) of the Family Law Act 1975 (Cth), the Respondent pay the Applicant’s costs of and incidental to the assessment of costs required by the Order made on 18 March 2022 and undertaken in the proceedings which were finalised by the Order made on 25 August 2023 on the following basis:
(a)from 18 March 2022 until 23 August 2022: as assessed on the party and party basis in an amount agreed between the parties in writing or, failing agreement, as is assessed as provided for in this order and, where the order does not specify, as is provided for in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(b)from 24 August 2022: as assessed on an indemnity basis in an amount agreed between the parties in writing or, failing agreement, as is assessed as provided for in this order and, where the order does not specify, as is provided for in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
3.Pursuant to s 117(2) of the Family Law Act 1975 (Cth), the Respondent pay, within twenty-eight (28) days of the date of this order, the Applicant’s costs of and incidental to the Application in a Proceeding, filed 25 September 2023 and sealed 27 September 2023, on the indemnity basis.
4.Pursuant to Rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the costs referred to in Order 3 shall be fixed in the amount of $4,000.00.
5.Within 28 days of the date of this Order, the Applicant shall file and serve an Itemised Costs Account on the Respondent.
6.If the Respondent does not dispute the Itemised Costs Account served on him by the Applicant, he shall pay the amount set out in it to a bank account, specified by the Applicant in writing, within seven (7) days of being served with the Itemised Costs Account.
7.If the Respondent disputes the Itemised Costs Account, he shall, within 28 days of being served with the Applicant’s Itemised Costs Account:
(a)file and serve a Notice Disputing Itemised Costs Account on the Applicant; and
(b)pay to the Applicant the amount particularised in his Notice Disputing Itemised Costs Account as the undisputed amount of costs payable to the Applicant, by depositing the same into a bank account nominated by her in writing.
8.In the event that the parties are unable to resolve any dispute regarding costs within seven (7) days of the service of the Respondent’s Notice Disputing Itemised Costs Account on the Applicant as provided for in Order 7, the parties shall:
(a)participate in a settlement conference pursuant to Rule 12.41 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on such date and at such time as fixed by a Judicial Registrar and advised in writing; and
(b)if they do not agree at the settlement conference about the amount for which a costs assessment order should be made: otherwise comply with the order made by a Judicial Registrar for the future conduct of the assessment process.
9.The Applicant has liberty to apply on the giving of forty-eight (48) hours’ notice in writing in the event that the Respondent fails to comply with this order or fails to comply with any associated costs assessment order that may be made pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS DIRECTED THAT
10.Any application by the Applicant in reliance on the liberty to apply conferred by Clause 9 of this Order shall, if practicable, be brought immediately to the attention of Hogan J.
AND IT IS FURTHER ORDERED THAT
11.The Application in a Proceeding filed 22 September 2023 is otherwise dismissed.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spalding & Barbaro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
On 18 March 2022, McClelland DCJ ordered that the father pay the mother’s costs of and incidental to the father’s Application, filed on 13 May 2021, and Amended Application, filed 26 July 2021, on a party and party basis within 14 days of agreement or assessment of the quantum of those costs (“the March 2022 order”).
On 25 August 2023 I made final orders in terms which determined the parenting proceedings between the parties and which quantified the costs ordered by McClelland DCJ by requiring that the father pay the mother the sum of $91,450.18 (the August 2023 order). The father has paid the mother this amount.[1]
[1] Affidavit of Ms Barbaro sealed 22 September 2023, paragraph 25.
The August 2023 order also enabled the parties to seek a further order as to costs and to be heard about the same via the provision of written submissions. According to the August 2023 order, an applicant for costs was to file and serve the required documents within twenty-eight (28) days; the respondent to any such application was to file and serve the required documents within a further fourteen (14) days thereafter; the applicant then had a further seven (7) days after being served with the respondent’s documents to file and serve any further written submissions strictly in reply to the same.
The mother sought[2] that the father pay her costs of and incidental to:
(a)the proceedings commenced by the Initial Application filed by the father on 13 May 2021 and that such costs be paid on an indemnity basis or, alternatively, on a party and party basis; and
(b)the preparation of the Itemised Costs Account which was the subject of the assessment finalised by the August 2023 order; and
(c)the Application in a Proceeding filed by leave on 7 December 2022, by which the father sought that interim parenting orders be made pending the delivery of Judgment and the making of final orders.
[2] Application in a Proceeding filed 22 September 2023.
If successful on her application for an order as to costs, the mother also sought that an order be made to provide her security for such costs.[3]
[3] Application in a Proceedings filed 22 September 2023, paragraphs 5 & 6.
The father has not filed any material as provided for by the terms of the August 2023 order.
PRINCIPLES
The starting point in relation to the issue of costs for proceedings under the Family Law Act 1975 (Cth) (the Act) is that each party bears his or her own costs.[4] However, if the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject relevantly to the matters set out in a 117(2A) of the Act, make such order as to costs and security for costs as it considers just.[5]
[4] Family Law Act 1975 (Cth), s 117(1).
[5] Family Law Act 1975 (Cth), s 117(2).
Neither party was in receipt of assistance by way of legal aid.[6] Each appeared represented by privately engaged lawyers at the trial.
The parties’ respective financial circumstances[7]
[6] Family Law Act 1975 (Cth), s 117(2A)(b).
[7] Family Law Act 1975 (Cth), s 117(2A)(a).
The mother works on a part-time basis, for which she is paid approximately $195 (gross) per week. She is otherwise reliant on Centrelink payments for her support and on that source, and any child support payments made by the father, for the financial support of the children. She owns the home in which she and the children live, but is unable to borrow against it because of her inability to make repayments.
The father has previously made two lump sum payments to discharge the child support debt which he has previously allowed to accrue:
(a)$99,808.53 was paid on 7 September 2021 – after the interim hearing before McClelland DCJ on 20 August 2022 at which the mother had sought an order for the enforcement of the debt and at which Counsel who then appeared for the father told the court that the father had made a payment to his solicitors of that amount and had made arrangements to obtain an AG Insurance card for the mother to use in making claims for the children on their health insurance policy; and
(b)$42,998.19 was paid on 9 October 2022 – approximately six weeks before the trial started on 29 November 2022.
The mother has not received any regular payments of the father’s assessed child support since 7 December 2022. Despite the evidence he gave at the trial, the father has not provided the mother with a card to enable her to easily claim on the children’s health insurance. Whilst the mother received $8,157.00 on 13 June 2023 (which she suspects was sourced from the father’s tax refund), the father has again accrued a child support debt – as at 22 September 2023, this was in the amount of $16,322,28.
The mother’s total legal costs of and incidental to the trial (including those incurred for the interim hearing before McClelland DCJ which resulted in the March 2022 order) are $504,707.47, which consist of the following (inclusive of GST):
(a)professional fees – approximately $417,055.43; and
(b)Counsel’s fees – $78,320; and
(c)Costs Assessors’ fees – $6,694.12; and
(d)disbursements – $2,637.92.
The mother’s evidence included that she has met these costs by borrowing money from her 82‑year-old mother, who in turn obtained them via a line of credit facility secured by mortgage over real property she owns.
According to the information included on the Child Support Assessment, the father’s taxable income for the financial year ended 30 June 2022 was approximately $500,000. Whilst there is no expert evidence about this issue, the mother estimated that his home would be valued at between $8,000,000 to $9,000,000 at least.
In contrast to the mother’s financial situation, the father is a self-employed professional who has significant financial resources available to him – for example, his evidence during the proceedings included that he had the financial capacity to:
(a)fund a treatment program in the USA for D at a cost of more than $400,000 in the USA; and
(b)spend up to $70,000 on programs in Australia; and
(c)spend about $70,000 per annum on having private teachers provide their services for D and pay for an extensive program of medical and allied health treatment which he had proposed during the trial.
Having regard to the above, I accept that the father’s financial circumstances are significantly superior to those of the mother – she works part-time, for which she receives minor remuneration; she has minimal financial resources and relies upon her wage, government assistance payments and the financial support of her mother (the children’s grandmother) to support herself and the children, particularly given the father’s failure to pay the assessed child support periodically when it is due. Given the nature of the mother’s employment outside the home for remuneration and the wage she receives for such exertions, I consider it much more likely than not that she continues to be under significant financial strain because of the father’s non-payment of his assessed child support when the same is due.
I also accept that, as a result of his income earning capacity and his property, the father has the financial capacity to meet whatever order for costs is made against him, whether the same is made on an indemnity or party/party basis.
Whether any party has been wholly unsuccessful[8]
[8] Family Law Act 1975 (Cth), s 117(2A)(e).
The father did not obtain any of the parenting orders that he sought. However, whilst the August 2023 order was made in terms that substantially reflected the mother’s final position, it cannot be forgotten that it was only after the evidence closed on the tenth day of the trial (that is, on 9 December 2022) that the mother’s position became that which was subsequently reflected in the written submissions filed on her behalf on 16 January 2023. Until then, her position was, as outlined in the Further Further Amended Response filed on her behalf on 17 October 2022 (approximately six weeks before the trial began) that it was in the children’s best interests that orders be made for D to live with her and spend time with the father in accordance with his wishes, B and C to live with her and spend alternate weekends with the father and for E to live with the father and spend time with her.
The father unsuccessfully opposed the mother’s position in relation to the children’s health insurance and his provision of an AG Insurance card to her to facilitate the children’s access to the support provided by the policy. He was unsuccessful in his attempt to have the quantum of costs he was to pay to the mother because of the March 2022 order reduced in the amount of $42,772.86 from the $120,915.14 initially sought by the mother[9] and was instead ordered to pay $91,450.18. He unsuccessfully sought that the trial be adjourned.[10] He unsuccessfully sought interim parenting orders pending the delivery of Judgment.[11]
The conduct of the parties in relation to the proceedings and other relevant matters[12]
[9]Albeit that, in the written submissions filed on her behalf in January 2023, the amount sought was $118,659.86.
[10] Spalding & Barbaro (No 2) [2022] FedCFamC1F 1000.
[11]Application in a Proceeding filed by leave 7 December 2022; Spalding & Barbaro (No 3) [2022] FedCFamC1F 1017.
[12] Family Law Act 1975 (Cth), s 117(2A)(c) and (g).
It was submitted on behalf of the mother that the father’s conduct vis-à-vis his child support debt at various times was relevant to the exercise of the discretion in relation to making an order that he pay the mother’s costs of and incidental to the proceedings. It was submitted, in essence, that the mother had been put to additional expense because, having failed to pay his assessed child support periodically and having allowed a debt to accrue (both prior to the interim hearing before McClelland DCJ which resulted in the March 2022 order and again prior to the trial, which commenced on 28 November 2022), the father only discharged the same by making lump sum payments after she had incurred the costs associated with preparing material and submissions in order to have the court consider the issue of the father’s child support arrears.
A further point made on behalf of the mother is, I think, that the court should not fail to recognise that, by bringing the application to adjourn the trial on the afternoon of its seventh day and the application for interim parenting orders pending the delivery of Judgment, which was heard on the tenth day of the trial, the father contributed to the duration of the trial because the hearing and determination of the same diverted from the trial and occupied time that could otherwise have been used to conclude it.
It was also submitted that the mother was unnecessarily put to the cost of having her legal representatives prepare to cross-examine a number of witnesses who had been subpoenaed by the father but who were ultimately not called: namely, Dr PP, a psychiatrist; Officer BM from the Queensland police service; and Ms BF, the Principal of AT School. Counsel who appeared for the father at trial advised the Court on day eight of the trial that Dr PP was unavailable and sought his discharge; on day nine of the trial, the discharge of Officer BM was sought and then, on day 10, Ms BF was discharged.
Whether an offer to settle the proceedings was made in writing and the terms of the same[13]
[13] Family Law Act 1975 (Cth), s 117(2A)(f).
The parenting orders aspect
The mother offered to resolve the parenting proceedings via seven “without prejudice” offers made between 15 March 2022 and 26 August 2022 in terms which were far more aligned with the father’s proposal than the orders which were ultimately made. Had the father accepted any of these offers, his position in respect of the children would have been overwhelmingly better, from his perspective at least, than the consequences of the August 2023 order.
In the 15 March 2022 “without prejudice” offer, the mother proposed the parents resolve the parenting dispute on the following bases: she would have parental responsibility for D, C and B and the father would have parental responsibility for E; D, C and B would live with her and E would live with the father; the father’s time with D, including on holidays, was to be as agreed in writing; E, C and B would spend alternating weekends (Friday afternoon until Monday morning) with the parent with whom they were not living; during school holidays (other than those at the end of the year), E, C and B would spend time with their parents on a week-about basis; during the end-of-year school holidays, the children would spend extended periods of time with each parent; orders would be made to authorise the release of information to both parents and to prevent each of them from entering the other’s residence without prior written consent.[14]
[14] Affidavit of Ms Barbaro sealed 22 September 2023; Exhibit MB-15.
In the 22 June 2022 “without prejudice” offer, the mother proposed the parents resolve the parenting dispute on the following bases: she would have parental responsibility for D, C and B and the father would have parental responsibility for E; D, C and B would live with her and E would live with the father; the father’s time with D would be in accordance with D’s wishes; E, C and B would spend alternating weekends (Friday afternoon until Monday morning) with the parent with whom they were not living; the children’s living arrangements would continue without change during school holidays; orders would be made to deal with parental communication, the children’s passports, travel and extra-curricular activities and to authorise the release of information to both parents.[15]
[15] Affidavit of Ms Barbaro sealed 22 September 2023; Exhibit MB-16.
On 30 June 2022, the father rejected the March 2022 and June 2022 offers and instead proposed that the parents attend a family dispute resolution conference.[16]
[16] Affidavit of Ms Barbaro sealed 22 September 2023 at paragraph 137; Exhibit MB-17.
On 26 July 2022, the parents participated in a family dispute resolution conference during which the mother made two “without prejudice” offers in the following terms:
(a)at 12:00 pm: she would have parental responsibility for D, C and B and the father would have parental responsibility for E; no parenting orders would be made in relation to D’s living arrangements and time with each parent, such that these would be in accordance with his wishes; C and B would live with her and E would live with the father; E, C and B would spend alternating weekends (from Friday afternoon until Monday morning) with the parent with whom they were not living and these arrangements would continue through the school holidays;[17] and
(b)at 1:00 pm: she would have parental responsibility for D, C and B and the father would have parental responsibility for E; no parenting orders would be made in relation to D’s living arrangements and time with each parent, such that these would be in accordance with his wishes; C and B would live with her and E would live with the father; E, C and B would spend alternating weekends (from Thursday afternoon until Monday morning) with the parent with whom they were not living and these arrangements would continue through the school holidays.[18]
[17] Affidavit of Ms Barbaro sealed 22 September 2023 at paragraph 141; Exhibit MB-10.
[18] Affidavit of Ms Barbaro sealed 22 September 2023 at paragraph 143; Exhibit MB-10.
After the family dispute resolution conference concluded without parental agreement about parenting orders, Mr BN issued a s 60I Certificate. The Certificate stated, in essence, that whilst the mother attended the conference with him, the father he did not make a genuine effort during it to resolve the issues in dispute.[19]
[19] Affidavit of Ms Barbaro sealed 22 September 2023 at paragraph 145; Exhibit MB-18.
On 1 August 2022, the mother made a “without prejudice” offer in the same terms as the offer she made at 1.00 pm on 26 July 2022, together with proposals for parental communication, the children’s travel, passports and extra-curricular activities and to authorise the release of information.[20]
[20] Affidavit of Ms Barbaro sealed 22 September 2023 at paragraph 146; Exhibit MB-19.
Whilst the father did not respond to the mother’s 1 August 2022 offer, he made a proposal, via correspondence received by her solicitors on 4 August 2022, that E live with him immediately and spend time with the mother from after school Friday until before school Monday. On 5 August 2022, the mother’s solicitors advised that they were obtaining instructions and noted that the orders made by Carew J on 13 May 2018 remained in effect with respect to E’s parenting arrangements.
On 9 August 2022, the mother’s solicitors received correspondence from the father’s solicitors which reiterated the father’s proposal, given that both parties sought on a final basis, for E to live with him. The correspondence also sought that, by close of business on 11 August 2022, the mother provide full particulars about why she would not agree for E to live with the father.[21]
[21]Affidavit of Ms Barbaro sealed 22 September 2023 at paragraph 148-150; Exhibit MB-20, 22.
On 11 August 2022, the mother made a “without prejudice” offer in the same terms as the offer she made at 12:00 pm on 26 July 2022, together with proposals for parental communication, the children’s travel, passports and extra-curricular activities and to authorise the release of information.[22]
[22] Affidavit of Ms Barbaro sealed 22 September 2023 at paragraph 151; Exhibit MB-23.
The mother did not receive any response from the father to her 11 August 2022 offer.
On 26 August 2022, the mother made a final “without prejudice” offer, albeit that it related only to changing the parenting arrangements for D and E, in the following terms: she would have parental responsibility for D and the father would have parental responsibility for E; no parenting orders would be made in relation to D’s living arrangements and time with each parent, such that these would be in accordance with his wishes; E would live with the father and spend alternate weekends (from Friday afternoon to Monday morning) with the mother; there would be no specific orders about E’s living arrangements during school holidays and orders would be made in relation to parental communication, the children’s travel, passports and extra-curricular activities and to authorise the release of information to both parents and to provide that the parents could not enter each other’s residence without prior written consent.[23]
[23] Affidavit of Ms Barbaro sealed 22 September 2023 at paragraph 153; Exhibit MB-24.
The mother did not receive any response from the father to her 26 August 2022 offer.
The quantum of costs aspect
I accept that part of the offer made by the mother on 1 August 2022 to settle all of the proceedings included her offer to resolve the dispute about the quantum of the costs payable by the father to her pursuant to the March 2022 order on the basis that he pay her the amount of $99,387.72 and pay all outstanding child support arrears.
I accept that the mother made a “without prejudice” offer on 23 August 2022 that she would accept $78,142.28 in satisfaction of the March 2022 order (being the sum the father contended for in the Notice Disputing Itemised Costs Account filed 11 July 2022) with such amount to be paid within 21 days and that she would also accept payment of the child support arrears which had accrued as at the date and in respect of which the father’s solicitors had previously advised that they held funds in trust from which such amount could be paid.
I accept that, on 23 November 2022, the mother made an open offer by which she proposed that the father pay her $99,387.72 in satisfaction of the March 2022 order.
It is obvious that the father accepted none of the mother’s offers. As noted earlier, he was subsequently ordered to pay the mother $91,450.18 in satisfaction of the March 2022 order.
DISCUSSION
I consider that because of the combination of the following matters, namely that:
(a)the father’s financial circumstances are significantly superior to those of the mother; and
(b)the father was pretty much wholly unsuccessful across all aspects of the proceedings; and
(c)the father conducted the proceedings in a way that involved: non-compliance with trial directions and the Central Practice Direction; protracted and unnecessary enquiries into largely irrelevant matters such as the nature of the assessment tool used in assessing D with ASD; the inclusion of voluminous historical evidence in his trial affidavit; the making of two interlocutory applications (for the adjournment of the trial and the making of interim parenting orders pending the delivery of Judgement) which diverted some time from the trial and extended its duration somewhat; and
(d)the father failed to accept any of the offers made by the mother prior to the trial to resolve the proceedings,
the circumstances here justify the making of an order that the father pay the mother’s costs of and incidental to aspects of the proceedings and that it is just that he do so. Whilst others may disagree, in the broad exercise of discretion afforded to judges at first instance in determining applications for costs and taking into consideration the matters summarised above, I consider that it is just that the father pay the mother’s costs of and incidental to the proceedings from 23 March 2022: that is, a week after he failed to accept the offer she made to resolve the same on 15 March 2022. Had the father accepted the mother’s offer at that time, the parents would not have been put to the very significant expense of a lengthy trial.
The circumstances justify the making of an order that the father pay the mother’s costs of and incidental to the proceedings from 23 March 2022 onwards and that it is just that he do so, do not determine the basis upon which the costs ordered to be paid should be calculated. Well‑known authority makes it clear that, unless there are exceptional circumstances, an order for costs should be made on the party and party basis. I accept that to order costs to be paid on an indemnity basis is something which is a “very great departure” from the “normal standard” in this and other jurisdictions.[24]
[24]See D & D Costs (No. 2) (2010) FLC 93-435; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; Yunghanns v Yunghanns (2000) FLC 93-029; In the Marriage of Kohan (1993) FLC 92-340; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J.
In urging that the order for costs be made on an indemnity basis, the mother’s legal representatives properly acknowledged those matters about which a court must be persuaded before they moved to order the payment of costs on an indemnity basis. The submissions made on behalf of the mother emphasised that the court would be persuaded, because of the considerable efforts made by the mother to try to resolve the parenting and costs disputes before trial and the terms of such offers and the consequent cost to her of being engaged in the lengthy trial which followed (particularly where her financial circumstances are so much more straitened than those of the father) that it is just to make an order that would see her compensated for the costs to her of the litigation, via an order for costs on the indemnity basis.
Whilst others may disagree, I am not persuaded that the circumstances here are exceptional or otherwise of such a nature as to justify the court departing from the usual basis on which costs are ordered to be paid, at least in relation to the costs of the proceedings.[25] In arriving at this conclusion, I have placed particular weight on the mother’s late change of position.
[25]Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; In the Marriage of Kohan (1993) FLC 92-340; Yunghans & Yunghans (2000) FLC 93-029; Limousin & Limousin (Costs) (2007) 38 FamLR 478.
Consequently, I consider the order as to costs which is just is an order which will require the father to pay the mother’s costs of and incidental to the parenting proceedings (commenced by Initiating Application filed 13 May 2021) after 23 March 2022 on the party and party basis.
The costs of the assessing the costs ordered by the March 2022 order
As noted earlier, the costs payable by the father to the mother pursuant to the March 2022 order was assessed, for the reasons expressed in the Reasons for Judgment published on 25 August 2023, in the amount of $91,450.18 and this has been paid.
Taking into account the disparity in the parties’ financial circumstances, that the father’s financial circumstances are significantly better than those of the mother and that the mother offered, on 23 August 2022, to resolve this aspect of their dispute on the basis that the father pay her the amount of $78,142.28 in satisfaction of the March 2022 order within 21 days, together with the outstanding child support arrears, I am of the opinion that the circumstances justify the making of an order that the father pay the mother’s costs of and incidental to the assessment of the costs he was ordered to pay by the March 2022 order.
Given that the father could have resolved the “quantum of costs” aspect of the proceedings by paying the mother about $13,307 less than he was ultimately ordered to pay, I am also persuaded that the circumstances are of such a nature as to justify the court departing from the usual basis on which costs are ordered to be paid; I consider it is just that the father pay the mother’s costs of and incidental to the assessment of costs ordered by the March 2022 order on the party and party basis until 23 August 2022 and on the indemnity basis from 24 August 2022 onwards.
The costs of and incidental to the father’s unsuccessful application for a stay of the operation of the August 2023 order
On 6 October 2023, I heard the father’s application for a stay of the operation of the August 2023 order pending the finalisation of his appeal against the same. During the course of that hearing, I heard submissions from Counsel who appeared for each of the parties about the mother’s application that the father pay her costs of and incidental to the application for a stay on an indemnity basis or, failing that, on the party and party basis.
Later on 6 October 2023, I made an order dismissing the father’s application for a stay of the operation of the August 2023 order pending the finalisation of his appeal.
Counsel who appeared for the father made the very proper concession that he (the father) could not cavil with costs following the event if his application was dismissed. Given this, the only matter which needs to be determined is whether such costs are to be paid on the party and party basis and assessed (as was contended for on behalf of the father) or on the indemnity basis and fixed in the amount of $4,000 plus GST (as was contended for by Counsel who appeared on behalf of the mother).
I accept that it was open to the father to file the application for a stay that was filed and that his conduct in the prosecution of the same does not provide any basis for a costs order to be made on an indemnity basis.
I also accept that he was wholly unsuccessful in his prosecution of the application. I accept the submissions made by Counsel for the mother to the effect that the court would be persuaded that the circumstances are of such a nature as to justify the Court departing from the usual basis on which costs are ordered to be paid because, in addition to being wholly unsuccessful:
(a)by inviting the court to stay the operation of the August 2023 order pending appeal and return the children to the former equal-time week-about parenting regime, the father was suggesting that the children return to live according to a regime that, at the trial, he had asserted was no longer in their best interests; and
(b)the application was filed after the children had already transitioned to the new parenting regime and had been living with the mother according to the operative parenting orders for about four weeks.
Given those matters, I also consider that the circumstances justify the making of an order that the father pay the mother’s costs of and incidental to the application for a stay on the indemnity basis. Given the costs these parents have already incurred as a result of the litigation in which they have been embroiled and the clear history of them failing to reach agreement about matters, I consider it just to make an order fixing the amount to be paid rather than leaving the same to be the subject of agreement or assessment. For this reason, I consider the order which is just is one that requires the father to pay the mother the sum of $4,000 by way of costs of and incidental to his application for the stay of the operation of the August 2023 order pending appeal.
The injunctive relief sought to provide the mother with security
As I appreciate it, the father’s history of failing to pay his assessed child support as and when such amounts fall due, his failure to provide the health insurance card despite previous assurances that he would do so and his past failure to comply with terms of the then-operative parenting order which required him to keep the mother informed about certain matters motivate and underpin the mother’s application for an order restraining the father from dealing with the property in which he lives pending his payment to her of costs in the amounts agreed or assessed.
It was submitted that such order was sought to ensure that, if the father fails to comply with the orders made in determining these outstanding applications for costs, the enforcement process would be as efficient as possible and not further prejudice the mother financially.
I note that the father has complied with that aspect of the August 2023 order which required him to pay $91,450.18 to the mother by way of costs. Given this, I am not persuaded that the prerequisites for injunctive relief, particularly in the broad terms sought, are established and I decline to make an order in the terms sought.
However, so as to attempt to minimise any delay which may attend any future need to seek orders by way of enforcement of the orders made today, I will make an order granting the mother liberty to apply in relation to any future application for enforcement.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 26 October 2023
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