RITTMAN & RITTMAN (COSTS NO. 2)

[2013] FamCAFC 9

FAMILY COURT OF AUSTRALIA

RITTMAN & RITTMAN (COSTS NO. 2) [2013] FamCAFC 9

FAMILY LAW – APPEAL - COSTS

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth), ss 6 and 9

APPELLANT: Ms Rittman

RESPONDENT: Mr Rittman

INDEPENDENT CHILDREN’S LAWYER: Carter Farquar

APPEAL NUMBER: NA 29 of 2011

FILE NUMBER: BRC 2571 of 2009

DATE DELIVERED: 15 February 2013

PLACE DELIVERED: Sydney

DATE  HEARD: 18 October 2012

PLACE HEARD: By way of written submissions

JUDGMENT OF: Coleman, Strickland & Ainslie-Wallace JJ

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 1 April 2011

LOWER COURT MNC: [2011] FamCA 228

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Galloway

SOLICITOR FOR THE APPELLANT: Pippa Colman & Associates

COUNSEL FOR THE RESPONDENT: Mr Waterman

SOLICITOR FOR THE RESPONDENT: Harrington Family Lawyers

FOR INDEPENDENT CHILDREN’S LAWYER: No appearance

Orders

1. The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.

2. The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rittman & Rittman (Costs No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE  

Appeal Number: NA 29 of 2011
File Number: BRC 2571 of 2009

Ms Rittman

Appellant

And

Mr Rittman

Respondent

REASONS FOR JUDGMENT

1. On 12 September 2012 we delivered judgment in relation to an appeal brought by the wife against a costs order made by Barry J on 1 April 2011.  The appeal was allowed, his Honour’s order for costs set aside and we re-exercised his Honour’s discretion and made orders in relation to the husband’s costs, ordering the wife to pay 60 per cent of the husband’s costs assessed on an indemnity basis.

2. We then directed that the parties make submissions in writing as to the costs of the appeal.

3. On 18 October 2012 the parties, through their solicitors, filed a joint submission as to the costs of the appeal.

4. The husband and wife jointly submitted that, in the circumstances of this matter, the Court make no order for costs against either party, but that costs certificates be granted to each party pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

5. The trial before his Honour concerned both parenting and property proceedings.  So far as the parenting proceedings were concerned, the wife made serious allegations against the father, none of which was accepted by the trial Judge. 

6. In considering the wife’s conduct in raising these allegations, his Honour said:

   55. The inappropriate conduct of [Ms Rittman] throughout the litigation permeated this case from start to finish.  It commenced with deliberately false allegations that she had been the victim of assault on the day of separation (1 January 2009).  A short time later, although it was asserted it had occurred in late December 2008, the allegation was made [Mr Rittman] had signed a cheque for $600,000 payable to [Mr C].  The misleading and deceptive conduct continued up to the annexing of the fabricated documents to her trial affidavit, a matter of only weeks prior to the hearing.  [Ms Rittman’s] behaviour involved false complaints to the police and misleading, spurious complaints to the Department of Communities (Child Safety Services).

7. His Honour dealt with the matter pursuant to s 117AB of the Family Law Act 1975 (Cth), which has since been repealed.

8. At the conclusion of the trial and after his Honour made his findings and delivered reasons, he considered a costs application by the husband for an order that the wife pay two thirds of his costs of $250,000.  His Honour ordered that the wife pay the husband’s costs in the fixed sum of $225,000.  The wife appealed this order.  As we have indicated, the appeal was allowed and orders made by the Full Court in substitution for those of the trial Judge.

9. In determining the appeal, only one of the asserted grounds of challenge to his Honour’s order was successful.  The successful ground related to his Honour’s assessment of the quantum of costs to be paid by the wife to the husband.  As we said:

   139. We accept the argument of the wife that, in the absence of an itemised bill for each party, his Honour’s comparison of the costs both had incurred did not provide a safe foundation for concluding as he did that the husband’s costs were reasonable.

10. We have come to the conclusion that each party should bear their own costs, and as the appeal succeeded on a question of law it is an appropriate matter in which to make orders for costs certificates to issue, appreciating that the certificates will relate only to the appeal, there being no rehearing of the matter.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Strickland & Ainslie-Wallace JJ) delivered on 15 February 2013.

Associate:

Date: 15 February 2013