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11 June 2018

A Lesson in Indemnity Costs Orders

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As set out in our previous blog post, the recent case of Graft & McCormick (Costs) [2018] FamCAFC 82 is a timely reminder that you should consider your prospects of success in every application you make (or defend) to the Court and to ensure that your proceedings are drafted correctly.

What happened?

At first instance, Graft & McCormick concerned four separate contravention applications filed by the Mother between May 2017 and October 2017 alleging that the Father contravened final Orders made by Tree J in November 2015 (“November 2015 Orders”) regarding the parties’ children.   These applications started what Murphy J, who was sitting in appellate jurisdiction of the Family Court of Australia, described as the “tortuous history” of these proceedings and subsequent appeals filed by the Mother.

The timeline of events which led to the Mother filing her Appeals, which Murphy J was required to determine, can be summarised as follows:-

  1. On 10 July 2017, Judge Coker made an Order adjourning the Mother’s various contravention applications to a half-day hearing on 18 October 2017.  The Mother appealed that Order in August 2017 (Appeal #1) and the Father sought to summary dismissal of the Mother’s appeal.
  2. At the hearing on 18 October 2017, Judge Coker dismissed the Mother’s contravention applications.  His Honour also made directions for the parties to file written submissions in relation to costs regarding the contravention applications.  The Mother appealed the Orders made at that hearing in October 2017 (Appeal #2).
  3. The Mother then filed an Application in a Case on 21 December 2017 seeking various Orders regarding parenting matters.  That Application in a Case was summarily dismissed by the Court on 21 December 2017.  The Mother appealed that Order in January 2018 (Appeal #3).
  4. The Mother subsequently filed an Application in an Appeal in relation to Appeal #3, seeking that the children be heard by the Judge who was presiding in the appeal (Murphy J).
  5. Following the written submissions as to costs as ordered in October 2017, on 13 February 2018, Judge Coker made an Order that the Mother pay the Father’s costs in relation to her contravention applications that were dismissed on 18 October 2017.  The Mother appealed that Order in February 2018 (Appeal #4).
  6. The mother subsequently filed an Application in an Appeal in relation to Appeal #4 in February 2018, seeking that the children be heard by the Judge who was presiding in the appeal (Murphy J) and also that Murphy J hear a further contravention application that the Mother filed in November 2017.
  7. The Mother also filed another Application in an Appeal in relation to Appeal #4 in March 2018 seeking to admit further evidence in the form of the children be heard by the appeal Judge (Murphy J).  The Mother also sought a review of Registrar Kane’s order in February 2018 to consolidate the various appeals.

Murphy J ultimately dismissed each of the Notices of Appeal and Applications in an Appeal filed by the Mother.  In doing same, the Court determined that the Mother’s conduct gave rise to special circumstances warranting an Order for Costs on an indemnity basis and made an Order that the Mother pay the Father’s costs fixed in the amount of $14,443.00.  Of particular interest was the Order was made against the Mother despite her impecuniosity.

In determining that indemnity costs was appropriate in these proceedings Murphy J noted:-

  1. The Mother had been wholly unsuccessful in each of her Appeals and Applications in an Appeal.
  2. The Mother’s proceedings were “appeals in name only.”  Rather, the proceedings were “a vehicle for what might be described as deep-seated criticisms of the ‘family law system’ and an opportunity to make allegations, many of them scandalous, against judicial officers and legal practitioners” (para 23).

In short, the Mother’s proceedings, which she told his Honour were “simply designed to remove these orders [being the November 2015 Orders made by Tree J]” were misconceived and an inappropriate use of the family law appeal process.

  1. The Father was put to very considerable expense meeting the Mother’s claims and more so by the reason of the sheer number of proceedings filed by the Mother (para 25).
  2. The Father had answered the alleged contraventions in correspondence to the Mother (prior the contravention hearing before his Honour Judge Coker) and invited the Mother to withdraw her application at that stage.  The Father put the Mother on notice that he would seek indemnity costs against her if she pursued her contravention application(s), which he contended lacked evidence of the breach alleged.  The Mother refused to withdraw her application.

Lessons to be learned

In Graft &McCormick, the Mother attempted to use her Appeal(s) of an unsuccessful Contravention Application to re-agitate parenting proceedings and final Parenting Orders, which had already been determined by Tree J in 2015 (some two years prior to her Appeals being filed).

Knowing your case, the appropriate documents to be filed and the Court process is critical.  Before filing any Application in relation to family law proceedings, you should first obtain legal advice, including process is appropriate in your particular circumstances and your prospects of success in same.  It is also crucial to ensure that if you are seeking to appeal a decision of the Court, the grounds of appeal are particularised, rather than broad assertions of error or (in this case) impropriety, and that the errors are errors of law, not fact.

As the Mother discovered in Graft & McCormick, it is not appropriate to use one Court process to vent frustrations about another Court process or revisit final Orders (made after a 4-day trial some 2 years previously) that are not (in the Applicant’s view) satisfactory.  Pursuing a case that is “doomed to fail” can, and will have adverse consequences beyond a simply “losing” your Application.

If our office can be of assistance with your family law matter please do not hesitate to contact us.

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