Ademis & Beauman (No 2)

[2022] FedCFamC2F 1729

Federal Circuit and Family Court of Australia

(DIVISION 2)

Ademis & Beauman (No 2) [2022] FedCFamC2F 1729

File number(s):

MLC 2824 of 2022

Judgment of:

JUDGE GLASS

Date of judgment:

20 December 2022

Catchwords:

FAMILY LAW – COSTS – where both parties caused the other to incur unnecessary costs – where the circumstances do not justify an order for costs

Legislation:

Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)

Evidence Act 1995 (Cth) ss 131(2)(h)

Cases cited:

Bant & Clayton (Costs) (2016) 56 Fam LR 31

Acland & Grohl (No 2) (2022) FLC 94-102

Division:

Division 2 Family Law

Number of paragraphs:

12

Date of last submission/s:

15 December 2022

Date of hearing:

4 November 2022

Place:

Melbourne

Counsel for the Applicant:

Ms Borger

Solicitor for the Applicant:

Sayer Jones

Counsel for the Respondent:

Ms Bastick

Solicitor for the Respondent:

Kenna Teasdale Lawyers

ORDERS

MLC 2824 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ADEMIS

Applicant

AND:

MS BEAUMAN

Respondent

order made by:	JUDGE GLASS
DATE OF ORDER:	20 december 2022

THE COURT ORDERS THAT:

1.Both parties’ applications for costs be dismissed.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Ademis & Beauman (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE GLASS:

1. On 4 October 2022, Mr Ademis discontinued an application he filed on 21 March 2022. On 17 November 2022, I dismissed Ms Beauman’s application for Mr Ademis to be declared a vexatious litigant. Both parties now seek their costs.

2. Pursuant to subsection 117(1) of the Family Law Act 1975 (Cth) (“the Act”), each party is to bear their own costs of proceedings under the Act. Nevertheless, the Court retains a discretion to make such order as to costs as it considers just, if the circumstances justify doing so, having regard to various prescribed matters.[1]

   [1] Family Law Act 1975 (Cth), ss 117(2), (2A).

3. Mr Ademis is a business director. Ms Beauman is unemployed and relies on government benefits for income. She has drawn down on her home mortgage to fund her legal costs.

4. Neither party has been in receipt of assistance by way of legal aid.

5. Mr Ademis filed an application on 21 March 2022 seeking to vary existing parenting orders in relation to the parties’ child. Ms Beauman prepared and filed documents responding to that application, and incurred the costs of attending several court events.

6. I place limited weight on Ms Beauman’s complaints relating to Mr Ademis’ failure to participate in mediation in circumstances where she pursued an ultimately unsuccessful application for Mr Ademis to be declared a vexatious litigant.

7. The proceedings were not necessitated by a failure of either party to comply with previous orders.

8. Ms Beauman was wholly unsuccessful in her application that Mr Ademis be declared vexatious.

9. Ms Beauman submits that Mr Ademis was wholly unsuccessful in his application through its discontinuance. I reject the submission. The discontinuance of an application is not akin to it being wholly unsuccessful, albeit such discontinuance is an otherwise relevant matter.[2]

   [2] Bant & Clayton (Costs) (2016) 56 Fam LR 31 at [21–22]; Acland & Grohl (No 2) (2022) FLC 94-102 at [7].

10. Mr Ademis proposed in September 2022 to withdraw his application on the basis that Ms Beauman also withdraw her application. By then, Ms Beauman had incurred costs in responding to his application. He then made no offer to compensate her for those costs, although subsequently offered to pay her costs fixed in the sum of $6,089. Ms Beauman’s objection to that material being before the Court is misguided. No exclusionary rule applies to negotiations relevant to determining liabilities for costs.[3]

    [3] Evidence Act 1995 (Cth), ss 131(2)(h).

11. Ms Beauman’s offers of settlement required Mr Ademis to consent to an order declaring him vexatious. They do not support the making of an order for costs given the ultimate dismissal of that application.

12. On balance, I am not satisfied the circumstances justify an order for costs in favour of either party. Both parties caused the other to incur unnecessary costs through the pursuit of applications that were either discontinued or wholly unsuccessful.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass.

Associate:

Dated:       20 December 2022