Bonnel & Jephson (No 4)
[2023] FedCFamC1F 566
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bonnel & Jephson (No 4) [2023] FedCFamC1F 566
File number(s): BRC 12366 of 2021 Judgment of: BAUMANN J Date of judgment: 6 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Stay of costs order sought pending appeal – costs to be paid after the determination of the appeal Legislation: Family Law Act 1975 (Cth) Cases cited: Bonnel & Jephson (No 2) [2023] FedCFamC1F 226
Bonnel & Jephson (No 3) [2023] FedCFamC1F 236
Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 6 July 2023 Place: Brisbane Counsel for the Applicant: Mr Tolton Solicitor for the Applicant: ABKJ Lawyers Counsel for the Respondents: Mr Blond Solicitor for the First Respondent: Small Myers Hughes Solicitor for the Second Respondent: Quinn Family Law Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 12366 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BONNEL
Applicant
AND: MR JEPHSON
First Respondent
MS FAIRBURN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
6 JULY 2023
THE COURT ORDERS:
Costs application
1.That the funds currently held in trust in the sum of $30,000 held on behalf of the wife be paid to the second Respondent within seven (7) days of the determination of the Applicant’s Appeal listed for hearing on 1 August 2023.
2.That the balance of costs payable of $55,000 be paid within seven (7) days of determination of the said Appeal.
3.That the Application in a Proceeding dated 27 June 2023 be dismissed.
Distribution of material filed in these proceedings
4.That the Independent Children’s Lawyer be granted leave to tender:
(a)the Affidavit of Ms U filed 13 April 2022; and
(b)the Affidavit of Ms V filed on 18 February 2023
before the Honourable Justice Howard at the final hearing commencing on 3 August 2023 in the proceedings …/….
5.That the Independent Children’s Lawyer be granted leave to provide the Affidavit of Ms V filed 18 February 2023 to the expert witnesses Mr W and Ms Z in proceedings of …/….
6.That the Independent Children’s Lawyer be granted leave to rely on a sealed copy of this Order in the proceedings …/….
Case Management Hearing
7.That these proceedings be relisted for Case Management Hearing of both parenting and property proceedings before the Honourable Justice Baumann, seven (7) days’ after the Honourable Justice Howard delivers Judgment in the proceedings …/…, listed for final hearing commencing 3 August 2023.
Final hearing
8.That these proceedings be set down for Final Hearing for not more than five (5) days commencing at 10.00am on 12 February 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
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 Bonnel & Jephson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
Arising from a decision made on 26 September 2022 summarily dismissing the Applicant wife’s claims against the Second Respondent in an ancillary proceeding to contested property proceedings between the Applicant wife and the Respondent husband, the Court made two subsequent Orders, namely:
(a)On 17 January 2023 the Court ordered the wife to deposit the sum of $9,265.10 to her solicitors. The effect was that the solicitors ABKJ Lawyers then retain $30,000 in their trust account. The wife was restrained from further dealing with the moneys in trust (see Bonnel & Jephson (No 2) [2023] FedCFamC1F 226); and
(b)On 4 May 2023, for Reasons delivered (see Bonnel & Jephson (No 3) [2023] FedCFamC1F 236), the Court quantified the costs payable by the Applicant to the Second Respondent at a figure of $85,000, being a fixed sum.
Subsequent to that final Order, on 1 June 2023 the wife filed an appeal against the Orders made by the Court on 4 May 2023 and brought an Application filed 27 June 2023 to stay the Order of 4 May 2023 pending the determination of the appeal. I have heard today from Mr Blond of Counsel on behalf of the Second Respondent and Mr Tolton of Counsel on behalf of the Applicant when further information was given to the Court:
(a)that the appeal has been listed for hearing before the Full Court on 1 August 2023; and
(b)that there is no evidence before the Court that identifies what are, in fact, costs on a party/party, basis which it seems from the appeal, is the basis upon which the Applicant wife believes her liability should be quantified.
Mr Blond properly identified that as the stay Application was not listed today for determination effectively, today being the date identified in the Reasons for Judgment delivered 4 May 2023, it would require the Court to come back on another day to deal with the stay Application and that, as he says, the Court would be assisted by a quantification of the party/party costs. Put simply, Mr Blond says the party/party costs are likely (although he concedes he has no evidence to support this submission at this stage) to be greater than the $30,000 held in the solicitors’ trust account. Of course, it is a matter for the wife to put the evidence before the Court to sustain the stay, but, in my view, I have some doubts about whether the order made on 4 May 2023, where I quantified costs at $85,000 but did not set a time for the payment of costs under that Order, is amenable to a stay application anyway.
Dealing with the matter in a practical sense, I propose today to make an order that requires the funds in trust, consistent with my Judgment of 4 May 2023, to be paid to the Second Respondent and any balance (which on current quantification would be $55,000) to be paid after the determination of the Full Court appeal. I am conscious of seeking to reduce the costs that the parties incur in respect of this matter which has been uppermost in my mind when determining the date when the money should be released.
I accept that the Second Respondent is the one prejudiced by the delay. They are entitled to the fruits of the Judgment, but in the circumstances I believe the Orders I make today are the proper orders to make.
I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 12 July 2023
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