Willham and Terr

[2010] FamCA 467

FAMILY COURT OF AUSTRALIA

WILLHAM & TERR [2010] FamCA 467

FAMILY LAW – COSTS – Section 117(2A) considered – Whether costs should awarded on an indemnity basis – Respondent ordered to pay costs on both a party and party basis and indemnity basis

Munday v Bowman (1997) FLC 92-784

APPLICANT: Ms Willham

RESPONDENT: Mr Terr

FILE NUMBER: BRC 2599 of 2009

DATE DELIVERED: 10 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: Written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Oric Legal

SOLICITOR FOR THE RESPONDENT: Freedom Law

Orders

1. The father pay the costs of the mother to be assessed up to 16 December 2009 and thereafter that he pay all costs of the mother on an indemnity basis.

IT IS NOTED that publication of this judgment under the pseudonym Willham & Terr is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2599  of 2009

MS WILLHAM

Applicant

And

MR TERR

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Willham hereinafter referred to as the applicant for costs in relation to applications before this Court which ended in a consent order being made on 18 January 2010.  Further orders were made on that date wherein inter alia I ordered that:

   (3)Submissions in support of an application for costs is to be filed and served by the Applicant within 14 days of today’s date.

   (4)Any submissions in reply are to be filed and served within 14 days of the date of filing of such submissions referred to in Order 3 of these Orders.

2. The parties have generally complied with such Orders and I have before me the mother, Ms Willham’s submissions and Mr Terr’s submissions, the respondent to the application for costs.  The facts are conceded by the father to be as set out in paragraphs 5-14 of the wife’s affidavit filed 13 January 2010 and for the purpose of completion I set them out herein.

   (5)The applicant filed an Initiating Application in the Federal Magistrates Court on 24 March 2009 seeking interim and final parenting orders.

   (6)A Response to the Initiating Application was filed on 25 May 2009.

   (7)Interim orders were made by Federal magistrate Spelleken on 23 June 2009 that:

   a.   The proceedings be transferred to the Family Court of Australia and that the matter be considered for inclusion in the Magellan Program;

   b.   An ICL be appointed to represent [the child];

   c.   The applicant spend time with [the child] each week for up to 2 hours supervised at [M] children’s contact centre;

   d.   The applicant pay the costs associated with the use of the contact centre.

   (8)On 8 July 2009 orders were made by Registrar Turner that:

   a.   The matter be designated Magellan.

   b.   The intervention of the Director-General of the Department of Communities (Child Safety Service) pursuant to section 91B;

   c.   The mother file and serve a form 4;

   d.   That the parties attend on a family consultant for the purposes of the preparation of a family report.

   (9)On 6 November 2009 orders were made by Registrar Turner that:

   a.   A copy of the family report by Ms [O] dated 6 November 2009 be delivered to the parties and the ICL.

   (10)On 11 December 2009 Ms [O] provided an updated Memorandum to the family report regarding the supervisor’s assessment.

   (11)On 17 December 2009 orders were made by Registrar Turner that;

   a.   The matter be listed for a Short Cause Hearing on 18 January 2010.

   (12)On 17 December 2009 the applicant did not appear at the hearing and was unrepresented.

   (13)On 18 December 2009 the applicant filed a Notice of Discontinuance.

   (14)On 31 December 2009 the applicant served the Notice of Discontinuance and a Notice of Ceasing to Act on the wife’s solicitors.

3. The facts, therefore, are not in dispute.  It is quite clear that the father was the initiator of the application in the Federal Magistrates Court that was transferred to this Court and it is also clear that on 17 December 2009, orders were made by Registrar Turner at which the applicant, the father, did not appear and was unrepresented.  The father’s application sought shared parental responsibility as well as substantial and significant contact.

4. On 18 December 2009, the applicant filed a Notice of Discontinuance in this matter.  This document was not served on the respondent mother to the initiating application until 31 December 2009 together with a Notice of Ceasing to Act.  The order was made, as I have said, on 18 January 2010 in which inter alia the father was entitled to supervised contact of a limited basis.  The applicant mother sets out in very full and in-depth submissions the matters which have taken place and the fact that prime facie the father had little or no chance in succeeding in his application.

5. She had entered into a written costs agreement with her solicitors dated 22 April 2009, she sets out at paragraph 22 of costs which she has incurred which amount.  I am fully aware of the provisions of section 117 and for my assistance that section has been referred to in-depth by both the applicant mother and the respondent father – see paragraph 2 of the submissions of the mother et seq and paragraph 2 et seq of the respondent father’s submissions.

6. As has quite clearly been set out each party under the rules is to bear their own costs but section 117 allows a Court to order, in certain circumstances, that the father in this case should pay the applicant’s costs and I refer in particular to 117(2A).  The Court’s discretion is very wide.  It is quite clear that the father has totally failed in his application notwithstanding his submissions to the contrary and the order made on 18 January 2010 quite clearly sets that out.

7. The difficulty he has is that first of all, he did not succeed and secondly, he did not appear on what I consider to be a seminal date and that is the date before Registrar Turner of 17 December 2009 wherein the matter was set down by Registrar Turner for a Short Cause Hearing on 18 January 2010.  Further, he filed a Notice of Discontinuance on 18 December 2009 but did not serve the applicant of his intention to discontinue his application and it appears on the material before me that she did not know of the discontinuance until 31 December 2009 – a comparatively short time before the matter came on for hearing as a Short Cause.

8. There are several things which I have to take into consideration under the provisions of section 117(2A).  I have touched upon whether he was successful – I consider he was totally unsuccessful in his application.  I have to consider those matters which are set out in the sub-paragraphs (a)-(g).  So far as his financial matters are concerned, he himself says at page 3, paragraph 6 that he is not a wealthy man.  He indicates that he can ill afford incurring legal fees he has had to incur and alleges that the mother is better able to afford to pay his costs.

9. At paragraph 34 of the mother’s submissions, she indicates that the husband has received an amount of $419,000.00 cash available to him from the sale of a property – see also paragraph 42 of the wife’s affidavit filed 13 January 2010.  This has not in any way been denied by the father.  Consequently, I am satisfied that he has the financial capacity to pay the costs and, in fact, I am satisfied that his conduct, particularly in his failing to attend at Registrar Turner’s hearing and his failure to serve upon the mother a Notice of Ceasing to Act and a Notice of Discontinuance at a stage wherein she would not have to incur costs is, in my view, sufficient for me to order costs.

10. The only question is whether I should order costs on an indemnity basis as sought by the mother or in the so called more usual form of solicitor and own client basis.  The mother has quite correctly set out at page 4, paragraph 7 et seq the principles that I have to apply in coming to the decision as to whether I should order on an indemnity basis.

11. I am more than satisfied on the material put before me that one of the factors which I have to find is set out in Munday v Bowman (1997) FLC 92-784 wherein it says:

    Where is appears that an action has been commenced or continued in circumstances where a party advised should have known that he had no chance of success.  In such cases the action must be presumed to have been commenced for some ulterior motive or because of some wilful regard for the known facts.

12. It is not my intention to go into detail in regards to the allegations of the father’s alleged misconduct.  I do not think it is necessary to raise them again but I take that into consideration.  I am not satisfied that notwithstanding that he had no chance of success that he should pay costs on an indemnity basis up until the date of the filing in the Court of the Notice of Discontinuance.  This was a time when, in fact, it could be said the matter no longer was disputed but the mother, as I am informed, was not informed of this until 18 December 2009 when she was served.

13. I dismiss out of hand his argument of his being unable to contest the allegations because of lack of finance – see paragraph 9 supra.  I would order, therefore, in those circumstances that the father pay the costs to be assessed up until 16 December 2009 and thereafter that he pay all costs of the mother on an indemnity basis.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell.

Associate: 

Date:  10 June 2010