YIM & ZIETH (No.4)
[2020] FCCA 245
•12 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YIM & ZIETH (No.4) | [2020] FCCA 245 |
| Catchwords: FAMILY LAW – Costs – where applicant seeks costs having regard to respondent’s conduct in several aspects of case – general principle that each party to bear own costs – where general principle yields to power to award costs – relevant considerations – power to set the amount of such costs – power to set quantum, determine method for computation or to refer to taxation – quantum set. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 117 |
| Cases cited: Browne v Green (2002) FLC 93-115 Pennisi & Pennisi (1997) FLC 92-774 Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433 | ||
| Applicant: | MS YIM | |
| Respondent: | MR ZIETH |
| File Number: | MLC 10467 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 29, 30, 31 May 2019, 24 June 2019 |
| Date of Last Submission: | 3 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 12 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Carne |
| Solicitors for the Applicant: | Oakfair Lawyers |
| Solicitors for the Respondent: | Parke Lawyers, (29, 30, 31 May 2019) |
| Advocate for the Respondent: | Mr R. Müller (29, 30, 31 May 2019) |
| In person (24 June 2019, February 2020) |
| Counsel for the Independent Children's Lawyer: | Ms P.A. Byrne |
| Solicitors for the Independent Children's Lawyer: | White Cleland |
ORDERS
The respondent pay the applicant’s costs of and incidental to:
(a)the respondent’s Application in a Case filed 25 October 2018, fixed in the sum in $3,500;
(b)the respondent’s Application in a Case filed 24 December 2018, fixed in the sum of $4,500;
(c)the mediation, fixed in the sum of $9,760;
(d)the trial of the proceeding heard on 29, 30, 31 May and 24 June 2019 calculated in the sum of $5,000.
fixed in the total sum of $22,760.
The respondent’s application for costs is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Yim & Zieth (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10467 of 2018
| MS YIM |
Applicant
And
| MR ZIETH |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why an order for costs has been made in this proceeding in favour of the applicant against the respondent. They should be read together with the reasons for judgment given on 28 November 2019 in relation to an application for final parenting orders and interim applications respecting jurisdiction and leave to proceed out of time for an adjustment of property interests as between parties to a de facto relationship: Yim & Zieth (No.3) [2019] FCCA 3404. They should also be read with Yim & Anor & Zieth (No.2) [2019] FCCA 436 and Yim & Anor & Zieth [2018] FCCA 3797.
Relevantly, the applicant seeks costs, on scale, arising from the dismissal of two applications together with the pursuit of allegedly unwarranted allegations at trial. Costs are also sought, on an indemnity basis, being costs incurred and wasted arising from the unilateral cancellation of a mediation which the respondent had been ordered to attend and in respect of which he had earlier selected the appointed mediator.
Having regard to the findings made in Yim & Zieth (No.3), I directed that the parties file and serve any submissions in relation to costs. Although they have done so, as the respondent is self-represented, and having regard to the content of his initial submissions, he was afforded a further opportunity to file submissions so as to respond to the detail of the matters raised by the applicant’s submissions. The respondent also sought and was granted an extension of time in which to file any further submissions. I have considered each of his submissions.
Applicable principles
The applicable principles are settled. In general, parties to a proceeding under the Family Law Act 1975 (Cth) (Act), should bear their own costs: Act, s 117(1). However, power is conferred on the court to make such order as to costs as it considers just where it is of the opinion that circumstances justify it in doing so: s 117(2). The power is subject to a number of provisions, including s 117(2A) and the Rules of Court.
In s 117(2A) of the Act, a number of factors are listed which the court must consider in deciding what order for costs (if any) should be made. I address those factors below. Further, the Federal Circuit Court Rules 2001 (Cth) confer power when making an order for costs, to either: set the amount of costs; set the method by which such costs are to be calculated or to refer the matter for taxation in the manner there provided. In addition, the court may set the time for payment of costs: r 22.01(2).
The power to make an order for costs is constrained by the requirement that the court has formed the opinion that circumstances exist to justify making an order for costs. Where that opinion has been formed, s 117(2A) provides that the court shall have regard to the matters enumerated in that provision in considering what order (if any) should be made in relation to costs.
Properly construed, there is nothing in s 117 which prescribes that more than one factor must be present before an order for costs may be made, or that a comparative evaluation of the weight of each such factor must be undertaken in the exercise of the discretion to award costs.[1]
[1]Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123, [41]; Eldred & Eldred (No.2) [2015] FamCA 188, [22].
In Fitzgerald (as child representative for AF (Legal Aid Commission of Tasmania) v Fish,[2] the Full Court stated:
Nowhere in subsection (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in sub-s (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[2] (2005) 33 Fam LR 123, [41].
While the weight to be given to any of the particular factors prescribed by s 117(2A) calls for the exercise of discretion, those factors, so far as they are relevant to that exercise, must be taken into account.[3] Further, the authorities recognise that there may be one factor which so dominates the particular facts and circumstances of the case under consideration that it alone may sufficiently provide the sole basis for the conclusion that the discretion ought to be exercised in favour of, or against, an order for costs. I address those matters in turn.
[3] I & I (1995) FLC 92-625;
Parties’ financial circumstances – par 117(2A)(a)
The requirement to consider the parties’ financial circumstances draws attention to the need to address whether there is a disparity in the parties’ financial position. However, the court is authorised to adopt a broad brushed approach. The underlying objective is to enable the court to have some appreciation of the relative financial positions of the parties.[4]
[4] Browne v Green (2002) FLC 93-115.
Legal aid – par 117(2A)(b)
This factor has significance as requiring that the court cannot disregard legal aid as consideration where it applies. Further, it draws attention to the need to reflect upon the general principle that a party cannot recover costs which he or she is subject to a liability to pay such costs.[5]
[5] In the Marriage of Conroy (1976) 2 Fam LR 11, 223.
Parties’ conduct – par 117(2A)(c)
The court is required to consider the parties’ conduct:
. . . 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.
Where the particular conduct of a party has caused an additional burden resulting in costs to be incurred by their opponent, this will commonly constitute a consideration which may engage the power to award costs.
This consideration is not confined to non-cooperation or obstructiveness but may involve unjustifiable conduct of any kind which has caused costs to be incurred that ought not to have been incurred.[6] Notably, In the Marriage of Greedy,[7] the Full Court recognised that the refusal to negotiate or to put forward an alternative appropriate order may be a factor which warrants the favourable exercise of discretion. An infinite array of circumstances may constitute conduct that warrants attention under par 117(2D)(c).
[6] In the Marriage of Fisher (1990) 13 Fam LR 806.
[7] (1982) 8 Fam LR 669.
Compliance with orders – par 117(2A)(d)
The court is required to consider “whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.” While it may be relevant, it is not necessary to establish that the party’s failure to comply with previous court orders entailed any culpable conduct (whether by act or omission).
Whether wholly unsuccessful – par 117(2A)(e)
The prescribed conduct to which par 117(2A)(e) draws attention is whether any party to the proceedings has been wholly unsuccessful in the proceedings. In this connection, the authorities recognise that although a party’s submissions may have been wholly unsuccessful, they may not have been without merit.[8] The Full Court endorsed the statement in Hawkins & Roe,[9] that “even a meritorious case can be ‘unsuccessful’ when the other case is found to have greater merit.”
[8] Wrensted v Eades [2016] FamCAFC 46, [85]-[87].
[9] [2012] FamCAFC 77.
Written offer to settle – par 117(2A)(f)
The court must also consider whether either party to the proceeding made a written offer to settle, the terms of the offer and their precision.
This requirement reflects policies of the Act including to encourage conciliation, the very real public interest to incentivise settlement, lighten the court’s workload and the drain on scarce judicial resources.[10] In Browne v Green, the Full Court underlined the importance of proper consideration being given to the making of an offer, its terms, the time at which it had been made and that it be contrasted with the result which was achieved instead by judgment:
The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it proper consideration, is something to which very significant weight indeed ought normally be given.[11]
[10]Cf In the Marriage of Greedy; Robinson & Higginbotham (1991) 14 Fam LR 559, 561; see also s 117C.
[11] Browne v Green (2002) FLC 93-115, [57].
It follows that parties may proceed at their peril in rejecting a reasonable offer of settlement. At the same time, the court should be slow to approach the evaluation of the question of costs from a backwards looking perspective by simply asking whether the result achieved had been worse than that which had been offered at an earlier time. The reasonableness of the offer and the context in which it was made remain important ‘forward looking’ considerations.[12]
[12] JEL v DDF (Repayment on Appeal, and Costs) (2001) 28 Fam LR 119.
Equally, the context in which an offer was made includes that there are “cases where the contents of the offer are themselves [the] subject of disputed value and [they are the] legitimate subject matter for determination”.[13] That is to say, the surrounding context may support a conclusion that a backwards looking evaluation of an offer may pay insufficient attention to the circumstances which obtained at the time that the offer was made and that the issue in dispute was one which a litigant was reasonably entitled to press for determination at trial.
[13] Pennisi & Pennisi (1997) FLC 92-774.
Any other matter– par 117(2A)(g)
While there is evident overlap between this provision and the various factors prescribed by pars 117(2A)(a)-(f), it is settled that the terms of par 117(2A)(g) could hardly be expressed in wider terms.[14]
[14] Parke & the Estate of the Late A Parke [2016] FamCAFC 248, [36].
In contrast with the special provision made by s 117(1) of the Act, in other civil litigation, a party who has succeeded is generally entitled to a favourable exercise of discretion to an award of costs: cf Latoudis v Casey.[15] The decision affirms the settled principle that an award of costs is compensatory and not punitive and is intended to indemnify the successful party against the expense to which they have been put by reason of the proceeding.[16] As Mason CJ observed, it is fundamental to the exercise of the discretionary power respecting costs that the issue be considered from the perspective of the successful party.
[15] (1990) 170 CLR 534.
[16] Latoudis 170 CLR 534, 542-543.
Equally, it is clear that an order for costs is not intended to operate by way of a complete indemnity. To the contrary, an order for costs is confined to legal costs and expenses which are properly incurred by a successful party.[17] The entitlement to costs, so understood, is then confined to costs of the kind for which the relevant rules of court provide. The entitlement is not at large. This general principle is explained in part by the circumstance that in most jurisdictions, the court is given a statutory discretion which is not constrained by the prescription of relevant considerations or criteria as is found in s 117 of the Act.[18] The position is quite different under s 117 which recognises that proceedings under the Act are not the same as civil litigation in many respects. As concerns parenting applications under the Act, the proceeding is not strictly inter partes because it entails the consideration of a child or children who are not parties to the litigation and whose best interests are under consideration. As concerns property, the parties are treated as owing fundamental mutual obligations respecting their financial affairs in a way where each is to be expected not to erode those interests.
[17] Cachia v Hanes (1994) 179 CLR 403, 410.
[18] Latoudis v Casey (1990) 170 CLR 534, 541.
Consideration
As the matter constituted a ‘proceeding’[19] under the Act, there is no doubt that the power to award costs is controlled by s 117. Accordingly, unless the court is of the opinion that there are circumstances justifying the making of an order for costs, the power to award costs is not engaged. Once the court forms the requisite opinion, that power is engaged. When the power is engaged, the general rule as expressed in s 117(1) must yield to the power conferred by s 117(2).[20] The power so conferred is to be applied, subject to the applicable rules of court and the matters addressed by s 117(2A). The discretionary power so conferred is wide.
[19] Act, s 4.
[20] Penfold v Penfold (1980) 144 CLR 311, 315.
It is not the case that the power to award costs may only be exercised in a clear case or that exceptional circumstances must be shown.[21]
[21] Mallett v Mallett (1984) 156 CLR 605, 631-632.
For the reasons below, I am of the opinion that the circumstances of this case justify that I consider whether an order for costs should be made. While it is not necessary to make particular findings in relation to an order for costs,[22] I have addressed the principles applicable to each paragraph of sub-s 117(2A) and each of the factors that it prescribes. The consideration of each of those factors is relevant so as to distinguish between those matters which may be relevant and those which are not. I address below only those factors which I see as relevant to this case.
[22] In the Marriage of Kelly (No.2) (1981) FLC 91-108.
The applicant sought costs, calculated on scale, in relation to:
a)the respondent’s Application in a Case filed 25 October 2018 calculated in the sum in $3,645.56;
b)the respondent’s Application in a Case filed 24 December 2018 calculated in the sum of $5,422.54;
c)the trial heard over four days between 29 May 2019 and 24 June 2019 calculated in the sum of $7,182.14 (being 30% of her total costs on scale calculated in the sum of $23,940.48).
The applicant provided as an annexure to her submissions, a calculation for each of those three applications which I have considered.
The applicant sought further costs, calculated on an indemnity basis, in the sum of $9,760, being the costs wasted as a result of the respondent’s failure to comply with paragraph 8 of the interim orders made on 10 December 2018 and attend private mediation.
The applicant correctly submitted that one s 117(2A) factor alone may suffice to provide the foundation for a costs order,[23] and properly conceded that the considerations in par 117(2A)(b), (d), (e)-(g) inclusive were not engaged. Her submissions addressed the remaining considerations. I have reflected upon the parties’ submissions as to these matters as informed by the findings made in my earlier reasons.
[23]Citing Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123, [41] (Kay, Warnick & Boland JJ).
Parties’ financial circumstances – par 117(2A)(a)
As the Response to the property application raised threshold questions as to jurisdiction, there was limited evidence put before the court regarding the financial circumstances of each of the parties. However, the following may be gleaned from the available materials.
By reason of her relocation to Australia, the applicant was no longer able to retain her full-time job as a professional in China. Her relocation was a direct response to the respondent’s demands that the maternal grandparents vacate the Suburb A home and the means by which he sought to achieve this outcome. The applicant is now working on a casual basis, earning around $50,000 per annum[24] so as to provide financial support for the children. She was not challenged as to this.
[24] Zieth & Yim [2019] FamCAFC 75, [22] (Strickland J).
The applicant owns two real properties in her sole name with an estimated total net equity of ~$600,000.[25] Each of the properties are encumbered by mortgages of ~$998,500, the obligations for which she cannot maintain. The mortgage against Property B2 exceeds its value by nearly $120,000. As appears likely, one or possibly both of those properties will need to be sold thereby incurring sale costs and, potentially, capital gains tax. The respondent purchased each of these properties in the applicant’s sole name, and at a time when she was not in Australia procured the mortgage finance in her name to do so.
[25] Yim & Zieth (No.3) [2019] FCCA 3404, [406].
Final parenting orders have been made for the children to live with the applicant. They will spend limited alternate weekend day time with the respondent. The applicant no longer receives any financial contributions from the respondent toward the children’s living expenses or school fees. She is accordingly self-reliant.
The respondent runs his own businesses. He is a professional by qualification. While he deposed to having a large number of personal debts, the veracity of those debts could not be tested in circumstances where no financial disclosure had been provided.
In April 2019, the respondent informed a Full Court that he had earned approximately $100,000 in the previous year.[26] The applicant deposed that until October 2018 the respondent had been making all mortgage repayments for each of the Suburb A and Property B properties.
[26] [2019] FamCAFC 75, [21].
Despite his apparently strained financial position, the respondent repeatedly proposed that their son, X, attend K School as a boarder and that their daughter, Y, attend School V (for which, according to the school’s website, the Year 8 tuition annual fee 2020 is nearly $34,000). An available inference is that the respondent believed he had the capacity to meet those fees.
Parties’ conduct in the proceeding – par 117(2A)(c)
I accept the applicant’s submission that the respondent’s conduct in relation to the proceedings has placed a demand on the court’s resources and caused a loss of both time and costs to the applicant. As costs are sought in relation to a variety of matters it is necessary to review them.
As concerned the hearing on 10 December 2018, reasons for judgment were delivered ex tempore on that date and thereafter delivered in writing on 20 December 2018.[27] The court found that the applicants[28] had been put to “not insignificant expense”[29] and that the respondent had “failed to provide any cogent evidence in support of allegations of fraud . . .”[30]
[27] Yim & Anor & Zieth [2018] FCCA 3797.
[28] The second applicant has since discontinued his application for relief in the proceeding.
[29] [2018] FCCA 3797, [12].
[30] [2018] FCCA 3797, [13].
As concerned the hearing on 18 February 2019, the respondent sought to have the applicant’s Initiating Application dismissed summarily, again doing so on the basis of fraud. In Reasons for Judgment in that application, on 28 February 2019[31] the court found that:
. . . the issues calling for determination in this case are very serious if the allegations of fraud are to be persisted with, and if they are to be persisted with, they must be proved by cogent evidence. [32]
[31] Yim & Anor & Zieth (No.2) [2019] FCCA 436.
[32] [2018] FCCA 3797, [15].
The respondent was wholly unsuccessful in proving his case of fraud, both on his summary application on 18 February 2019[33] and at the final hearing.[34] Contextually, while the respondent maintained in his evidence at trial and final submissions that the applicant had engaged in fraudulent conduct, she was not cross-examined on any question of fraud. To have maintained allegations of fraud which ought never to have been made may itself ground the making of a costs order on an indemnity basis.[35] Other authority suggests that where a party alleges, but fails to prove fraud, this may itself provide a proper basis to award costs.[36]
[33] [2019] FCCA 436, [30], [38] & [44].
[34] [2019] FCCA 3404, [102].
[35] Munday & Bowman (1997) FLC 92-784 (Holden CJ).
[36] Thorne v Doug Wade Consultants Pty Ltd [1985] VR 433, 499-500 (Kaye and Marks JJ).
As concerned the costs of the trial, the applicant sought that a portion of her costs be paid in relation to the trial by reason of the respondent unreasonably, and unsuccessfully, maintaining his argument that their daughter Y might have been “groomed” by the maternal grandfather and that this provided the ground for an application that any future time between the children and the grandfather ought to be supervised. He also maintained the fraud allegations, as referred to above.
The grooming allegations were found to be “a most troubling aspect of the dispute” and were properly characterised as “a serious issue”.[37] It was submitted to have been wholly inappropriate for the respondent to have maintained his allegations. On the findings made, there was “virtually no evidence to support the conclusion that the grandfather poses an unacceptable risk to either of the children”[38] but that the children’s primary attachment was to the maternal grandparents.[39] As recorded in the Reasons for Judgment, the respondent’s Solicitor-Advocate did not cross-examine the grandfather with respect to those allegations and his not doing so “may be seen as recognising that no proper sufficient evidentiary basis existed to challenge the grandfather so as to make out such serious allegations.”[40]
[37] [2019] FCCA 3404, [118] & [325].
[38] [2019] FCCA 3404, [333].
[39] [2019] FCCA 3404, [236] & [334].
[40] [2019] FCCA 3404, [210].
While it was acknowledged that costs orders are not about punishment,[41] the applicant submitted that the respondent’s conduct in maintaining the fraud allegations and the grooming/abuse allegations resulted in: (a) increased use of court time by reason of the applicant having to address these issues both in cross-examination and in submissions, (b) increased costs to the applicant in having to address the issues in her material and (c) increased aggravation of already inimical parenting issues in dispute between the parties in general.
[41] Latoudis v Casey (1990) 170 CLR 534, 542 (Mason CJ).
In all the circumstances, I accept that the respondent’s conduct in these proceedings has had a serious impact upon the applicant in requiring her to prepare for the final hearing and to dedicate time, resources and money to the preparation and conduct of the proceeding at trial in a way that was necessitated by the pursuit of allegations which a litigant, properly advised, would not have maintained. In this context, it is entirely beside the point that the respondent may subjectively hold views that the matters of concern require consideration. The respondent’s most recent submissions confirm that he adheres to those views.
As concerned the costs of mediation, I have found that costs with respect to the mediation were wasted.[42] The parties were ordered to attend mediation at their equal expense. The respondent nominated the mediator and was on notice of the mediation date and time. The mediation was fixed well ahead of the appointed date. Although he was reminded of the scheduled date, time and place of the mediation, the respondent first advised of his intention not to attend at 5:10pm the day immediately before that mediation. This was quite unacceptable and unreasonable. Indeed no valid reason for non-attendance was ever given. As a direct result of the respondent’s late notice, the mediation was aborted and the costs, including the mediator’s fees, were wasted.
[42] [2019] FCCA 3404, [138].
While the applicant sought costs thrown away on the mediation on an indemnity basis, she accepted that “the circumstances justifying the departure [from the scale of costs] should be of an exceptional kind.”[43] In Munday & Bowman,[44] the Full Court identified a number of circumstances in which costs on an indemnity basis may be warranted. The categories of circumstances warranting an order for costs on an indemnity basis are not closed.[45]
[43] Kohan & Kohan (1993) FLC 92-340.
[44] (1997) FLC 92-784.
[45]Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681, [31] (Lindermayer, Holden & Mullane JJ).
In my view, the circumstances of this case, including that the respondent had an appeal pending in the proceeding at the time of mediation, afford no answer for a party, including self-represented litigants, to disregard and simply refuse to comply with court orders. The present position is compounded by the respondent’s failure to give sufficient notice of his intention not to attend the mediation. Such notice should have been given well in advance of the mediation and before the incurring of costs, including the costs of mediation, became essentially inevitable. Counsel who had been nominated by the respondent and appointed to act as mediator had set aside that day to discharge those responsibilities.
The applicant had prepared for the mediation and complied with the relevant orders. The respondent did not do so. The applicant’s costs were clearly wasted and, in those exceptional circumstances, I am satisfied that the applicant should not have to bear any of those wasted costs. I consider that indemnity costs is appropriate for this mediation.
As noted, the applicant provided as an annexure to her submissions, a calculation for each of those four matters (calculated according to scale in relation to the matters in [48](a)-(c) and on an indemnity basis in relation to the matters in [48](d). I have considered each of those matters. I consider that it is appropriate to set the amount of those costs. Having regard to the matters detailed in those calculations of costs, I consider it appropriate to allow the following:
a)the Application in a Case filed 25 October 2018, I allow a sum of $3,500;
b)the Application in a Case filed 24 December 2018, I allow a sum of $4,500;
c)the trial, I allow a sum of $5,000;
d)the mediation, I allow a sum of $9,760.
The total of those sums is $22,760.
Respondent’s application for costs.
Despite the orders made directing the parties to file and serve any submissions in relation to the question of costs by 12 December 2019, the respondent filed lengthy submissions but made no such application. However, for the reasons above I decided that he might be afforded an opportunity to make further submissions as to costs particularly as he was self-represented and had not addressed the applicant’s claims directly. Despite that further opportunity, the respondent requested, and obtained, an extension of time within which to make submissions.
The respondent’s submissions reiterate his allegations of fraud and of fabrications and accused the applicant of seeking unfair advantages and having purposely twisted the facts masterminded by the maternal grandfather. He criticised the applicant for having neglected and abandoned the children and maintained that her ownership of the properties which were purchased by him was unjust.
In one way or another, those submissions reflect the respondent’s emphatic disagreement with the findings made on the final hearing. The circumstance that a party may emphatically disagree with such findings is not a valid basis or challenge when costs are in issue.
Having been afforded an extended opportunity to make submissions, the respondent advised that he had re-considered his position and applied for his own costs quantified in a sum exceeding $58,000. His application for such costs was liable to be rejected as having been made out of time. However, I have considered the matters which he has raised.
In some respects, the respondent’s submissions mirrored some of the applicant’s legal submissions as to costs. Otherwise, the respondent repeated his submission that the applicant should be at least made responsible for her own actions as masterminded by her father, which, as he said, had caused damage to the children. Relatedly, the respondent submitted that the costs of the proceeding could more usefully have been applied for the children’s education, activities, welfare and development.
In a similar vein, the respondent relied upon the dismissal of his application for sole use and occupancy of the Suburb A property. The dismissal of this application was explained by the reasons for judgment given in relation to that aspect of the matter.
None of the matters raised by the respondent persuade me that an order for costs in his favour is justified.
Conclusion
Orders will be made accordingly.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 12 February 2020
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