A father has had his claim for costs dismissed after failing to convince an appeals court that a primary judge had erred. The father had been successful in prosecuting numerous contravention applications against the mother, yet the primary judge had refused to make an order for costs in the father’s favour. Under our laws regarding seeking costs after contravention, if you bring a contravention application against someone and win, the unsuccessful party should be made to pay the costs, but an order for costs will not be made if the Court is satisfied that to do so would not be in the best interests of the children in the matter.
In this case (pseudonymised as Wallington & Wallington), the appeals court ruled that the primary judge was correct in finding that the father’s expenses were simply too opaque and vague to form the basis of a claim for costs. The key takeaway? Incorrectly or insubstantially itemising expenses in a claim could be fatal to your case. Let’s take a closer look.
Seeking costs after contravention
In earlier contravention proceedings involving two kids aged 12 and 10, the mother had been found to not have a reasonable excuse for contravening parenting orders including facilitating the father’s time with the children. One ‘less serious contravention’ and three ‘more serious contraventions’ were proven and the mother received various penalties, including good behaviour bonds and orders to see a family counsellor. However, the primary judge declined to make a costs order against her.
The father submitted that he had incurred financial loss due to the contravention applications, including such things as car hire, accommodation and travel as well as the costs of bringing the applications themselves. He provided a table setting out his asserted expenses, but it contained no clear particulars, nor any invoices or receipts to support his claims and calculations.
What was needed was an itemised, particularised schedule of costs that unequivocally related purely to the contravention proceedings so that a judge could understand what work was properly incurred in prosecuting the contraventions, and the reasonableness of the charges. Instead the father’s evidence was “confused and confusing” rather than “safe and detailed”. For example, the appeals judges pointed out that his claims for fuel were identical for each and every trip, which meant an entry “clearly does not relate to the actual charged incurred”. The father also wanted to include his counsel’s fees, but failed to clearly establish the work done for him, because the counsel’s charges included work done on another matter and counsel’s descriptions of work performed were too broad.
Should you wish to pursue costs in a contravention matter, this case highlights the crucial need for you to gather and present extremely clear evidence of your costs incurred—anything that is vague or unclear will not be accepted by the courts.
Do you need assistance with a family law matter, for example one involving parenting order contraventions? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.