Costs ordered for defending costs

Costs ordered for defending costs

Fegley & Salway [2016] FamCA 168 (17 March 2016)

Costs

For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/168.html

APPLICATION FOR COSTS

40. At the conclusion of the proceedings, the mother made an oral application for costs on a party/party basis as agreed or assessed. Counsel for the father indicated that the father opposed any costs order being made. The lawyer for the mother made short submissions based solely on the fact that the father had been wholly unsuccessful in the applications for contravention that he had brought against the mother. Counsel for the father indicated that she was not in a position to obtain instructions to respond to those submissions.
41. I allowed seven days for written dot point submissions to be made in respect of costs and I gave the lawyer for the wife seven days to reply.
42. On 23 February 2016 the lawyers for the father provided written submissions (3 pages) with 32 pages of enclosures, including a lengthy affidavit that had been sworn by the father on 10 July 2014.
43. On 3 March 2016 the lawyers for the mother forwarded submissions in reply, spanning 9 pages (in larger font than the submissions provided by the father).
44. The father’s application for contravention brought three charges against the mother.
45. The first charge against the mother was totally misconceived and was not pressed on the first day of the hearing (see [30] of the Reasons of 14 December 2015).
46. The father did not establish a prima facie case in relation to the first charge (see [4] to [21] of the Reasons of 14 December 2015).
47. In relation to the second charge, the father instructed his Counsel to:
    <li “=””>47.1. Take objections to the mother’s affidavit but every objection was overruled;

<li “=””>47.2. Cross examine the mother extensively in circumstances where the father knew what the objective medical evidence was.

48. The father had formed the somewhat unusual view that because he had breached the order on the previous evening (particularly in relation to D), the mother was involved in fabricating medical evidence in a tit for tat retaliation. The father did not seem to be able to see past that case theory. He was not able to objectively assess the independent evidence.
49. Section 117(1) of the Act provides that each party in proceedings shall bear his or her own costs. Section 117(2) however provides that the court may make an order that it considers just and in considering what order, if any, should be made, those matters set out in s 117(2A) of the Act shall be taken into account.

The financial circumstances of each of the parties to the proceedings

50. The father’s written submissions seeks to rely upon a financial statement filed by the father on 11 July 2014, whilst at the same time informing the court that there have been significant changes in the father’s financial circumstances since that time, given that he has been in stable employment for approximately 12 months.
51. The father makes certain assertions in submissions that are not supported by any evidence.
52. The father generally asserts that he has been able to repay significant debt in the last twelve months.
53. The father was able to afford counsel to prosecute the contravention applications over two days before me.
54. I infer the father has the capacity to pay any costs order made.
55. In contrast, the mother is not in paid employment.

Legal aid

56. Neither party is in receipt of a grant of legal aid.

Conduct of the parties to the proceedings in relation to the proceedings

57. The father submits that his application arose out of an incident of excessive physical discipline reported to the father by the child C in circumstances of the father having prior knowledge of previous incidents and on the strength of reports corroborated by a principal of the school. The father submits that the court should be satisfied that the affidavit that he swore only three days after the incident arose out of imminent fears held for C’s safety. I am unable to accept that that was the father’s motivation and in any event, as I have already said in the primary judgment, the father called no evidence by way of corroboration at all. The father brought and continued contravention applications in circumstances where he seemed on the face of it to be in contravention of orders himself.
58. Part of the father’s evidence was CCTV footage from a railway station which the father had an opportunity to view prior to the commencement of the contravention hearing. He chose to assert at the hearing that that footage contained corroboration of what he asserted. I found that it did not.
59. In the primary judgment I found the father to be a “less than impressive witness” and also to be “disingenuous”.
60. The father submits that I should take into account in his favour that these charges arise out of alleged contravention of parenting orders and the application is commenced under Part VII of the Act. That is not a weighty consideration in the circumstances of this case.

Were the proceedings necessitated by a failure to comply with orders?

61. I found that the mother did not fail to comply with orders.

Whether a party to the proceedings has been wholly unsuccessful

62. The father’s written submissions do not put into issue the primary submission in respect of costs which was made orally by the lawyer for the mother on 19 February, namely, that the father was wholly unsuccessful in his three contravention applications against the mother. This in my view is a consideration of considerable weight, particularly when added to other considerations that are in the mother’s favour.

Whether either party to the proceedings made an offer in writing

63. No offers of settlement were exchanged in relation to the contravention application.

Such other matters as the court considers relevant

64. There are no additional considerations that are relevant.

Conclusion in respect of costs

65. Given the manner in which the father conducted the proceedings and the fact that he was wholly unsuccessful, I consider it just that a costs order be made in respect of the contravention filed on 12 February 2015 on a party/party basis as agreed or assessed.
66. The lawyer for the mother also made an application for the costs associated with the costs application. The application could have been dealt with without further costs had counsel for the father been prepared to make oral submissions on the day. The fact that counsel for the father sought and obtained leave to proceed on the basis of written submissions has put the mother to further costs and she should be entitled to recover them (given that the father’s opposition to the mother’s costs application was wholly unsuccessful).