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Barre & Barre

Barre & Barre

Case [2021] FedCFamC1F 61 20 September 2021

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barre & Barre [2021] FedCFamC1F 61

File number(s): SYC 6149 of 2016

Judgment of: HARPER J

Date of judgment: 20 September 2021

Catchwords: FAMILY LAW – COSTS – Application by a self-represented litigant – Where self-represented Third Respondent is an intervener – Costs not available to self-represented litigants – No justifying circumstances for the grant of a costs order – Where Third Respondent has a history of seeking broad based relief – Where applications have previously been dismissed as having no jurisdictional basis – Where Third Respondent’s conduct has led to delays in finality – No basis for dollar for dollar costs order in favour of self-represented litigant – Application dismissed – Costs order made in favour of Applicant Wife.

Legislation:
Bankruptcy Act 1966 (Cth) ss 35, 35A, 35B

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act2021 (Cth) s 37

Family Law Rules 2004 (Cth) rr 1.04, 1.06, 1.07, 1.08, 1.16

Family Law Repeal Rules 2021 (Cth), Schedule 1

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.05, 12.01(3), 12.13

Cases cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; [2009] HCA 27

Atkins & Hunt (2018) 57 Fam LR 128; [2018] FamCA 14

Atkins & Hunt [2017] FamCAFC 131

B v J (2006) FLC 93-259; (2006) 35 Fam LR 222; [2006] FamCA 256

Barre & Barre (Superannuation) [2021] FamCA 463

Barre & Barre [2021] FamCA 101

Barre & Barre and Ors [2019] FamCA 907

Barre & Barre and Ors [2020] FamCA 455

Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555; [2019] HCA 29

Cachia v Hanes (1994) 179 CLR 403; (1994) 120 ALR 385; [1994] HCA 14

Casley & Casley [2010] FamCAFC 189

G & T (2003) 32 Fam LR 101; (2004) FLC 93-176; [2003] FamCA 1076

Latoudis v Casey (1990) 170 CLR 534; (1990) 97 ALR 45; [1990] HCA 59

Northern Territory v Sangare (2019) 265 CLR 164; (2019) 60 Fam LR 71; [2019] HCA 25

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Parke & Estate of the Late A Parke (2016) FLC 93–748; (2016) 314 FLR 322; [2016] FamCAFC 248

Penfold v Penfold (1980) 144 CLR 311; (1980) 28 ALR 213; (1980) FLC 90-800; (1980) 5 Fam LR 579; [1980] HCA 4

Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; (1998) FLC 92-812; [1998] HCA 44

Sfakianakis & Sfakianakis [2019] 59 Fam LR 419; [2019] FamCAFC 54

Division: Division 1 First Instance

Number of paragraphs: 56

Date of hearing: 9 September 2021

Place: Sydney

Counsel for the Applicant: Mr Parker

Solicitor for the Applicant: Swaab Attorneys

Solicitor for the First and Second Respondents:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barre & Barre

Details

AGLC: Barre & Barre [2021] FedCFamC1F 61
Case: [2021] FedCFamC1F 61
Decision Date

CaseChat Overview and Summary

These proceedings have a long and complex history. The central dispute concerned enforcement of a binding financial agreement between the Applicant Wife, Ms Barre, and the First Respondent Husband, Mr Barre. This was finally resolved by the Court in Barre & Barre [2021] FamCA 101. Following this, there remained residual issues concerning superannuation, which were dealt with in Barre & Barre (Superannuation) [2021] FamCA 463. The only remaining issues are those which may arise out of the husband’s bankruptcy. However, this remains to be seen. The finalisation of the husband’s bankruptcy awaits, in part, the sale of certain properties in accordance with the Court’s orders in the primary judgment, or the possibility of negotiation with the husband’s trustee in bankruptcy. The Third Respondent in these proceedings is Ms Gilliam, with whom the husband was in a relationship for a time. Ms Gilliam was joined to the proceedings on 8 May 2019 upon her application to intervene as a creditor of the husband. She has made a range of applications in the proceedings, which have been dismissed as having no jurisdictional basis. This judgment deals with Ms Gilliam’s claim for costs.

Ms Gilliam filed a document entitled “Respondent Ms Gilliam Minute of Order” on 12 July 2021. Ms Gilliam seeks various orders in relation to costs and property. However, the Court has already dealt with these issues. The Court is not persuaded any of these orders should be made. The central orders sought are Orders 6, 7 and 8. The others are ancillary to or consequential upon the making of Orders 6, 7 and 8. Thus, the main question is whether Ms Gilliam should receive a costs order in her favour of any sort.

The relevant principles with respect to costs in this Court are well settled. Section 117 of the Family Law Act 1975 (Cth) is the central provision. The starting point is that each party shall bear his or her own costs. However, if the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs, and security for costs as the Court considers just. An applicant for costs need not establish extraordinary or exceptional circumstances, however there must be circumstances which, at the absolute discretion of the Court, justify a costs order. In determining whether a costs order should be made and in what form, the Court has regard to the considerations set forth in s 117(2A) of the Act, namely: (a) the financial circumstances of each of the parties to the proceedings; (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters; (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court; (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; (f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and (g) such other matters as the Court considers relevant.

In this case, there were no justifying circumstances for a costs order in Ms Gilliam’s favour. The Court considered the financial circumstances of the parties, and Ms Gilliam’s conduct in the proceedings. It was clear that Ms Gilliam’s conduct in the proceedings counted against any exercise of a costs discretion in her favour. Having also had regard to the requirements for parties to ensure the just and efficient resolution of disputes, the Court was not persuaded that Ms Gilliam had established any circumstance justifying a cost order in her favour.

Finally, the wife applies for her costs of this application against Ms Gilliam. The Court accepts the circumstances of this case makes it desirable for a specific amount to be fixed, “so as to avoid the parties being involved in lengthy, contentious and expensive assessment of the costs,” and particularly where there is already an acceptable basis upon which to determine the appropriate amount. I am satisfied a costs order should be made against Ms Gilliam in favour of the wife. Bearing in mind Ms Gilliam is self-represented, I am not persuaded an indemnity costs order is warranted. I will order Ms Gilliam to pay the wife’s costs of the application, which are the subject of this judgment, fixed in the amount of $1,100.

Orders