QLD Family Court - Cases Where Reserved Costs are Won at Trial?

[Legally Fizzing]

I am in a legal battle now for over 2 years. Both the ICL and our lawyer believe strongly that the other party has lost all possible recourse to alter the current interim orders (no contact with the child). Trust me, sometimes there is due cause for this ruling.

The other parent has refused and is now 'self-representing' with another application. This will almost certainly be dismissed but not before, yet again, costing us many more thousands of dollars. As the other parent clearly plans to take this to trial, we have no choice but to go along. We plan, however, to ask our lawyer to write to the other parent and the ICL with something like;

"…as your recent application to resume full contact with the child has been summarily dismissed, we are now proceeding to trial. The likely legal cost to each parent will be considerable, however, you have elected to self-represent; hence, your costs are minimal.

Having conferred with the ICL and many peers, I am certain beyond any reasonable doubt that a trial would not alter in any way the current orders. Should you choose to continue it will be assumed that you do so for unreasonable purposes and not with the best interests of the Child in mind.

As the law protects the abuse of legal process for the purpose of negatively impacting the welfare or amenity of another person we would apply for and pursue full financial restitution of all fees paid by my client relating to any further court proceedings.

This matter has been addressed in several family court matters and I refer you to Smith vs Jones 2005, Bloggs vs Withers 2008 in which final orders were made to this effect.

Also, should you choose to ignore a court ordered demand for payment you would be subject to the further criminal prosecution which may include imprisonment and / or further financial penalties.

We, therefore, appeal to your intellect to discontinue any further action”

My request is simple. Could you please recommend any Family Court cases in Australia where the above has applied, and what penalties would be likely should the other party refuse to pay.

P.S. please do not tell me that the Family Court expects each parent to pay their own way in legal matters. This has gone way past any "child's best interests".

The Family report, Psyche and ICL are all in agreement. I simply want to get this crazy ex out of our lives and move on to trying to wear down the $60,000 debt it has caused us so far.

 

[AllForHer]

So, breaking down the main issues here, you're basically trying to motivate the other party to deter from bringing further proceedings in relation to a parenting matter because they have a low chance of success, correct?

I assume you've already familiarised yourself with the legislative authority on this, but for ease of reference (and for the benefit of other users):

• Section 102QB - http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s102qb.html
• Section 117 - http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s117.html
• Section 118 - http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s118.html

In summary, the court can, on application, order that a party is restrained by injunction from initiating new proceedings without leave of the court, and where the court has made a finding that such applications are vexatious, it can also make an order for costs in favour of the respondent party.

Because family law matters are very much determined on a case-by-case basis, and only a small handful of authority cases exist to guide matters where a legislative authority doesn't exist, I am inclined to say that referencing past cases where such orders have been made is probably going to cost you about $40 per 100 words written by your lawyer, but is probably going to have minimal effect on the other party (except for maybe giving them some free legal research at your own expense).

In correspondence with the other party, your advantage is that your lawyer knows the law, the SRL doesn't, so why make the research process easier for the SRL by providing them with go-to cases and legislation about your intention to pursue a costs order? In my view, these sorts of things are usually kept fairly short and sharp. State that you've considered the current application and in light of the history of proceedings, you believe it to be vexatious with a low likelihood of success, and in the event the matter proceeds to trial, you will be seeking an order:

• That the current application be dismissed;
• That the father/mother be restrained by injunction from filing any Application for Parenting Orders in any court without leave of the court first had and obtained;
• That the mother/father pay the father/mother's costs of and incidental to these proceedings.

Of course you can provide cases if you wish, but there are hundreds and hundreds of cases where costs orders were made in favour of the respondent to parenting matters. If you want to find some, though, search the Austlii database - http://www.austlii.edu.au/forms/search1.html. The relevant databases will be the Family Court of Australia, Family Court of Australia (Full Court), and Federal Circuit Court. Search terms might be 'costs parenting vexatious', etc.

One example of a case I just found is Johnston & Pritchard [2014] FCCA 1996 (23 July 2014)

 

[Legally Fizzing]

So, breaking down the main issues here, you're basically trying to motivate the other party to deter from bringing further proceedings in relation to a parenting matter because they have a low chance of success, correct?

I assume you've already familiarised yourself with the legislative authority on this, but for ease of reference (and for the benefit of other users):

• Section 102QB - FAMILY LAW ACT 1975 - SECT 102QBMaking vexatious proceedings orders
• Section 117 - FAMILY LAW ACT 1975 - SECT 117Costs
• Section 118 - FAMILY LAW ACT 1975 - SECT 118Frivolous or vexatious proceedings

In summary, the court can, on application, order that a party is restrained by injunction from initiating new proceedings without leave of the court, and where the court has made a finding that such applications are vexatious, it can also make an order for costs in favour of the respondent party.

Because family law matters are very much determined on a case-by-case basis, and only a small handful of authority cases exist to guide matters where a legislative authority doesn't exist, I am inclined to say that referencing past cases where such orders have been made is probably going to cost you about $40 per 100 words written by your lawyer, but is probably going to have minimal effect on the other party (except for maybe giving them some free legal research at your own expense).

In correspondence with the other party, your advantage is that your lawyer knows the law, the SRL doesn't, so why make the research process easier for the SRL by providing them with go-to cases and legislation about your intention to pursue a costs order? In my view, these sorts of things are usually kept fairly short and sharp. State that you've considered the current application and in light of the history of proceedings, you believe it to be vexatious with a low likelihood of success, and in the event the matter proceeds to trial, you will be seeking an order:

• That the current application be dismissed;
• That the father/mother be restrained by injunction from filing any Application for Parenting Orders in any court without leave of the court first had and obtained;
• That the mother/father pay the father/mother's costs of and incidental to these proceedings.

Of course you can provide cases if you wish, but there are hundreds and hundreds of cases where costs orders were made in favour of the respondent to parenting matters. If you want to find some, though, search the Austlii database - AustLII - AustLII: Advanced Search. The relevant databases will be the Family Court of Australia, Family Court of Australia (Full Court), and Federal Circuit Court. Search terms might be 'costs parenting vexatious', etc.

One example of a case I just found is Johnston & Pritchard [2014] FCCA 1996 (23 July 2014)

This is a great starting point for our response. I am particularly grateful that you have cited a case. We would include also the restraint condition in final orders sought. What a great website this is.

 

[Legally Fizzing]

We went through a similar 4 year nightmare with the mad ex being abandoned by law firms and instead self repping. He to was awarded no contact and I agree that sometimes this is absolutely fair. No need to elaborate. He went not only to trial but to appeal and our costs were astronomical. For the appeal, and perhaps this is relevant here also, our lawyer said he didn't need to waste any more of our money as there were no ground at all for any change to the ruling as the ex was just being a prat. So he gave us a very simple response for FREE (yes it happens) which cut down the appeal hearing from half a day to just an hour. I empathize deeply with you here, and if you do choose to self rep I would suggest keeping your responses very simple and do not try to respond to each and every one of the grounds he the other party has presented. Our response to his 50 page appeal was less than one page and in essence included broad dismissal of all grounds. A lovely final reason was this:
(4) The grounds asserted by the Appellant inappropriately ignores that well established proposition that "Best interests are values, not facts". The grounds do not uncover any legal error or plainly unjust result [within the current rulings]. (CDJ v VAJ (1998) 197 CLR 172)

I would also be cautious of any cost reservations as our application for this was dismissed. unless the other party is well off, they will likely say it is an unfair burden. They are interested in legal outcomes not justice / punishment / restitution.

In a nutshell, if you are confident of a win, keep your message very simple. The ICL will likely do the same.

 

[SamanthaJay]

That was your original post Legally Fizzing...but good to know the outcome.