Benson & Drury (No 2) - [2023] FedCFamC1F 155

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Benson & Drury (No 2) [2023] FedCFamC1F 155

File number(s): MLC 8683 of 2022

Judgment of: BERMAN J

Date of judgment: 16 March 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – where the parties agree for the matter to be determined on the papers – Where the mother seeks costs in relation to the father’s dismissed Initiating Application – Where following the dismissal, orders were made pursuant to s102QB of the Act prohibiting the father from instituting further parenting proceedings without leave – Where findings were made that the father is vexatious in his conduct – Where the mother seeks costs on an indemnity basis – Consideration of whether the costs should be payable on an indemnity basis or a party/party basis – Consideration of quantum – Orders made

Legislation: Family Law Act 1975 (Cth) s 117(2A)

Cases cited:
Benson & Drury [2022] FedCFamC1F 1041

Prantage & Prantage (2013) FLC 93-544

Re Wilcox; Ex parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151

Division: Division 1 First Instance

Date of hearing: Determined on the papers

Place: Adelaide

Solicitor for the Applicant: The Applicant being self-represented

Solicitor for the Respondent: D’Angelo Lawyers
ORDERS

MLC 8683 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BENSON

Applicant

AND:
MS DRURY

Respondent

order made by:

BERMAN J

DATE OF ORDER:

16 March 2023

THE COURT ORDERS:
1.On or before sixty (60) days from the date of this order, Mr Benson (“the father”) do pay Ms Drury (“the mother”) the sum of TWENTY TWO THOUSAND THREE HUNDRED AND SIXTY THREE DOLLARS AND TWENTY FIVE CENTS ($22,363.25) on account of her costs incurred, into the D’Angelo Lawyers Law Practice Trust Account.

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 Benson & Drury has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

Mr Benson (“the father”) and Ms Drury (“the mother”) are the parents of B born 2005 and C born 2008 (“the children”).
On 22 December 2022 the following Orders were made:
1.Pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”), [the father] is prohibited from instituting further parenting proceedings under the Act in relation to [the…

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 Benson & Drury (No 2)

Details

AGLC: Benson & Drury (No 2) [2023] FedCFamC1F 155
Case: [2023] FedCFamC1F 155
Decision Date

CaseChat Overview and Summary

This case involved the parents of two children, Mr Benson (the father) and Ms Drury (the mother). The father sought to initiate further parenting proceedings, which the mother opposed. The matter was determined on the papers, and the Court dismissed the father’s Amended Initiating Application and made orders prohibiting the father from instituting further parenting proceedings without leave. The Court also found that the father was vexatious in his conduct. In light of this, the mother sought costs on an indemnity basis.

The Court had to determine whether the costs should be payable on an indemnity basis or a party/party basis and, if so, the appropriate quantum of the costs. The Court considered the financial circumstances of each party, the conduct of the parties, and the nature of the proceedings. The Court found that the dismissal of the father’s application and the success of the mother’s application to prohibit the father from instituting further proceedings had a high level of complexity. Additionally, the proceedings were premised upon a finding that the father was vexatious in his conduct. Given the history of the matter and the significant costs already incurred by the mother, the Court found that costs should be assessed on an indemnity basis.

The Court assessed the quantum of the mother’s costs and found that the documents evidencing the fee structure for the mother’s solicitors, the terms of engagement, and the fees incurred, were consistent and corroborative of the quantum of costs sought. The Court did not consider the matters raised by the father to ameliorate the consequence of a finding that the father’s conduct was vexatious. The Court made an order that the father pay the mother $22,363.25 on account of her costs incurred.

Orders