Barret & Barret (No 2) - [2022] FedCFamC2F 423

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barret & Barret (No 2) [2022] FedCFamC2F 423

File number(s): ADC 4496 of 2018

Judgment of: JUDGE BROWN

Date of judgment: 4 April 2022

Catchwords: FAMILY LAW – costs – application for costs – assessment of legal principles applicable to costs – where two offers of settlement were made by the mother – where offers were not accepted – departure from the general rule that each party bear their own costs – costs order made against the father – special costs order.

Legislation:
Family Law Act 1975 (Cth) ss 67ZBA, 79, 117, 117C,

Family Law Rules 2004 (Cth) Pt 10.1.

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1, r 4.01.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 12; Pt 4.2, 12.6; rr 12.08, 12.13, 12.17

Federal Circuit Court Rules 2001 (Cth).

Cases cited:
Browne v Green (2002) 29 Fam LR 428.

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.

Barret & Barret [2021] FedCFamC2F 14.

Davida & Davida (Costs) [2011] FamCAFC 61.

Garrod & Davenort [2021] FamCA 276.

In the Marriage of I & I (No 2) (1995) 22 Fam LR 557.

In the Marriage of Kohan (1992) 16 Fam LR 245.

Lenova & Lenova (Costs) [2011] FamCAFC 141.

Roverati & Roverati [2021] FedCFamC2F 590.

Division: Division 2 Family Law

Number of paragraphs: 125

Date of hearing: 21 March 2022

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Norman Waterhouse

Counsel for the Respondent: Mr Bowler

Solicitor for the Respondent: Martin Robinson Solicitors
ORDERS

ADC4496 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BARRET

Applicant

AND:
MR BARRET

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

4 APRIL 2022

THE COURT ORDERS THAT:
1.Within twenty eight (28) days of the date of these orders, the respondent, Mr Barret pay the applicant, Ms Barret a lump sum of costs fixed at FORTY THOUSAND DOLLARS ($40,000.00).

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 the pseudonym Barret & Barret has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

These reasons for judgment relate to an application for costs,…

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 Barret & Barret (No 2)

Details

AGLC: Barret & Barret (No 2) [2022] FedCFamC2F 423
Case: [2022] FedCFamC2F 423
Decision Date

CaseChat Overview and Summary

The parties, Ms Barret and Mr Barret, were married for approximately 10 ½ years and have three children aged nine to 13. The proceedings were initiated by the mother in late-2018, initially concerning both property and parenting issues. The mother sought her costs in the trial either on an indemnity basis or, failing that, on a party/party basis. The father resisted the application for costs and sought that he and the mother bear their own respective costs. The issues the court was required to decide were whether there were any circumstances justifying a departure from the general rule that parties bear their own costs in family law proceedings, and if so, what the quantum of those costs should be.

The court found that there were circumstances which justified a departure from the general rule, in particular, the father’s conduct in the proceedings, including his refusal to accept the mother’s offers to settle the case and the mother’s financial circumstances. The court considered the father’s conduct to be disingenuous and a cavalier disregard for the costs incurred by the mother. The court also found that the mother was wholly unsuccessful in the proceedings, as she had achieved the vast majority of what she hoped to achieve, while the father had not. The court further found that the mother’s financial circumstances were such that she was not in a strong financial position and had exhausted her savings. The court held that the circumstances justified an order for costs against the father, and a special costs order was made, fixing the costs at approximately $40,000.00. The father was granted a stay of 28 days in respect of payment.

The final orders of the court were that the father must pay the mother a lump sum of $40,000.00 within 28 days of the date of the order.

Orders