FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abberley & Clement (No 3) [2024] FedCFamC2F 871
File number(s): CAC 2180 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 10 July 2024 Catchwords: FAMILY LAW – COSTS – long-running parenting litigation – various Orders made for the Applicant Father to undertake hair follicle testing and to provide information regarding his mental health which, if complied with, would have provided a “pathway” to commence the process of spending time with his young son but never complied with – Independent Children’s Lawyer had likewise made multiple similar requests to the Father regarding drug screens but likewise never complied with – separate costs Order made against the Father in unsuccessful appeal – Father effectively refused to engage in the process relating to the Mother’s Application regarding costs resulting in the matter running “undefended” – only “submission” made by the Father in the course of a directions hearing was that if he was not going to spend any time with his son he was not going to pay anything – costs Order as sought by the Mother. Legislation: Family Law Act 1975 (Cth) ss.117, 117(2), 117(2A) Cases cited: Abberley & Clement [2021] FedCFamC2F 211
Abberley & Clement (No 2) [2023] FedCFamC2F 1508
Abberley & Clement [2024] FedCFamC1A 81
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Penfold v Penfold (1980) 144 CLR 311
Ressel & Morath [2023] FedCFamC1A 145
Stephens v Stephens (2011) 44 Fam LR 117
Division: Division 2 Family Law Number of paragraphs: 21 Date of last submission/s: 27 June 2024 Date of hearing: 14 June 2024 & otherwise “on the papers” Solicitors for the Applicant KJB Law Respondent In person ORDERS
CAC 2180 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CLEMENT
ApplicantAND: MR ABBERLEY
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
10 JULY 2024
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Within 60 days, the Applicant is to pay the Respondent’s costs of the proceeding fixed in the sum of $64,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
In October 2021, I made interim parenting…
Continue reading Abberley & Clement (No 3)
Sign in free to access the full text
- AGLC
- Abberley & Clement (No 3) [2024] FedCFamC2F 871
- Case
- [2024] FedCFamC2F 871
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the father’s non-compliance with the court’s orders and requests, as well as his refusal to engage in the mother’s application for costs, justified the making of a costs order against him. The court had to consider the principles of costs in family law, which emphasise the importance of encouraging parties to participate in the litigation process and discourage unnecessary prolongation of proceedings. The court also had to consider the father’s financial position and ability to pay the costs.
The court held that the father’s non-compliance with the court’s orders and requests, as well as his refusal to engage in the mother’s application for costs, demonstrated a lack of willingness to participate in the litigation process and a disregard for the court’s authority. The court found that this conduct warranted the making of a costs order against the father. The court also considered the father’s financial position and determined that he had the ability to pay the costs. The court ordered the father to pay the mother’s costs of the proceeding, fixed in the sum of $64,000, within 60 days.
In light of the above, the court made an order that the father was to pay the mother’s costs of the proceeding within 60 days. This costs order reflected the court’s view that the father’s conduct throughout the proceedings had been unreasonable and unjustified, and that he should be held accountable for the costs incurred by the mother as a result of his actions. The court’s decision serves as a reminder of the importance of compliance with court orders and the consequences of failing to do so in family law proceedings.
Orders
Orders of the court
ON A FINAL BASIS, THE COURT ORDERS THAT:
1. Within 60 days, the Applicant is to pay the Respondent’s costs of the proceeding fixed in the sum of $64,000.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.