LGM & CAM (Costs) [2008]

FAMILY LAW - COSTS

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the appellant wife pay 85 per cent of the respondent husband’s costs of and incidental to the appeal proceedings determined by orders made 10 January 2008, as agreed and in default of agreement, as assessed.
(2) That the appellant wife pay 85 per cent of the respondent husband’s costs of and incidental to the appeal proceedings determined by orders made 25 August 2006, as agreed and in default of agreement, as assessed.
(3) That the appellant wife pay the respondent husband’s costs of and incidental to the amended application for contempt filed on 2 September 2004, as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym LGM and CAM (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Appeal Number: EA 63 of 2005
File Number: SYF 3359 of 1997

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. On 10 January 2008, we dismissed an appeal as against certain orders that Cohen J made 30 May 2005, but allowed the appeal insofar as it concerned a costs order made by him that day. Before we heard the appeal, it had been the subject of determination by a Full Court on 25 August 2006, but on appeal to the High Court, the orders made by that court were, in part, set aside and the matter was remitted to “...a differently constituted Full Court of the Family Court of Australia”. The High Court also ordered that the costs of the proceedings up to and including the Full Court’s order of 25 August 2006 be reserved to the Full Court hearing the appeal on remission. When we made orders as indicated in respect of the appeal, we also made directions enabling each party to make submissions about the following:

(i) The application by the husband against the wife for indemnity costs in respect of the amended application for contravention filed 2 September 2004;

(ii) The costs of the appeal to the Full Court, determined by orders made on 25 August 2006;

(iii) The costs of the appeal to this Court.

1. The wife’s appeals arose out of proceedings against her by the husband for contempt in respect of which Cohen J sentenced the wife to four months imprisonment for each of two contempts of orders (two months of each term to be served concurrently). He also ordered that the wife pay the husband’s costs of the contempt proceedings on an indemnity basis but, as indicated, we allowed the appeal against that order.
2. The wife made no initial submission. The husband has made submissions. The solicitors for the husband forwarded those submissions by facsimile to the wife on 12 June 2008. They may have also been served earlier. A copy of the submissions was also forwarded to solicitors last known to have acted for the wife. The wife has not replied. The husband seeks orders that:

29.1 The Appellant Wife pay the Respondent Husband’s costs of and incidental to this appeal.

29.2 The Appellant Wife pay the Respondent Husband’s costs of and incidental to the appeal to the Full Court determined by the orders of 25 August 2006.

29.3 The Appellant Wife pay the Respondent Husband’s costs of and incidental to the Amended Application for Contempt filed on 2 September 2004.

The costs of the appeal determined on 10 January 2008.

1. The wife did not wholly fail in relation to this appeal because, as we earlier indicated, the appeal against the costs order made by Cohen J was allowed. However, we accept the submission on behalf of the husband that that issue took up very little time. We agree that in relation to the remainder of the appeal, having regard to its dismissal and what we know of the financial circumstances of the parties, as referred to in our reasons for judgment of 10 January 2008, that the wife should pay the husband’s costs on a party/party basis. We partially adopt one of the alternatives suggested for the husband, namely that the wife pay a percentage of the husband’s costs of and incidental to this appeal. However, in our view the suggested percentage of 95 per cent insufficiently recognises the magnitude of the indemnity costs issue. We think 85 per cent the appropriate portion.

Costs of the first appeal to the Full Court

1. We accept the submissions on behalf of the husband, that the result of the appeal to the High Court and our decision on the remitted appeal on 10 January 2008, demonstrate that the appeal, as presented to the Full Court and determined in August 2006, was without merit (except with respect to the costs order). We consider that the wife ought pay 85 per cent of the husband’s costs of that appeal.

The costs of the husband’s application determined by Cohen J

1. In the written submissions for the husband, findings made by Cohen J relating to the conduct of the wife which was found to constitute contempt, and to her conduct in the proceedings before Cohen J, are set out at length. We accept the summary of those findings on behalf of the husband, as follows:
   1. ...

The husband’s commencement and prosecution of the proceedings:

27.1 was necessitated by the Wife’s deliberate breach of the Court’s orders and the Wife’s flagrant challenge to the authority of the Court;

27.2 was made unnecessarily lengthy and difficult by the Wife’s failure to give honest and accurate evidence and her failure to acknowledge the obvious consequences of her own actions; and

27.3 resulted in the Wife partially purging her contempt and thus returning to the matrimonial pool (albeit at only the very last moment prior to delivery by the Trial Judge of judgment on penalty and albeit only after great legal expense had been incurred by the Husband) a significant amount of property.

1. We consider that the nature of the proceedings before Cohen J, the result and the recorded conduct of the wife in those proceedings, calls for an order that she pay the husband’s costs, as sought, on a party/party basis.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 11 July 2008