Breen & Callow - [2024] FedCFamC2F 1759

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Breen & Callow [2024] FedCFamC2F 1759

File number(s): NCC 715 of 2022

Judgment of: JUDGE CARTY

Date of judgment: 10 December 2024

Catchwords: FAMILY LAW – COSTS APPLICATION – granted – Respondent to pay costs of the applicant on a party and party basis in a fixed sum

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 ss 67, 69

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.04, 6.01. 6.05

Cases cited:
Bant & Clayton (Costs) [2016] FamCAFC 35; (2016) 56 Fam LR 31

Fitzgerald v Fish [2005] FamCA 158

Hawkins & Roe [2012] FamCAFC 77

Medlon & Medlon (No.6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664

Pascoe & Larsen (No 2) [2022] FedCFamC1A 126

Penfold & Penfold [1980] HCA 4; (1980) 144 CLR 311

Rice & Asplund (1979) FLC 90-725

Division: Division 2 Family Law

Number of paragraphs: 64

Date of last submission/s: 3 April 2024

Date of hearing: On the papers

Solicitor for the Applicant: CDG Law

Solicitor for the Respondent: Hoffman & Associates
ORDERS

NCC 715 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BREEN

Applicant

AND:
MR CALLOW

Respondent

ORDER MADE BY:

JUDGE CARTY

DATE OF ORDER:

10 DECEMBER 2024

THE COURT ORDERS THAT:
1.The respondent will pay the applicant’s costs on a party and party basis fixed in the sum of fifteen thousand and five hundred dollars ($15,500) with payment to be made by no later than 10 April 2025.

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).
Part XIVB 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION

The applicant mother Ms Breen (“the applicant”) seeks an order that the respondent father Mr Callow (“the respondent”) pay the applicant’s costs as agreed or assessed, after the Court made final parenting orders by consent on 23 February 2024, late on the second day of a two-day parenting trial.
The final parenting orders were broadly consistent with the final parenting orders sought by the applicant at the hearing.[1]
[1] Exhibit M1
The respondent opposes the application for costs and seeks an order that each party bear their own costs in the proceedings.
For…

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 Breen & Callow

Details

AGLC: Breen & Callow [2024] FedCFamC2F 1759
Case: [2024] FedCFamC2F 1759
Decision Date: 10 December 2024

CaseChat Overview and Summary

In Breen & Callow, the applicant, Ms Breen, sought an order for costs against the respondent, Mr Callow, following a series of family law proceedings. The dispute originated from a contentious separation and the subsequent division of property and assets. The Federal Circuit and Family Court of Australia was tasked with resolving the costs application.

The legal issue before the court was whether the applicant's costs application should be granted in full or in part, and if so, the appropriate amount and basis for the costs order. The court had to consider the principles of costs in family law proceedings, including the conduct of the parties and the overall fairness of the outcome. The court needed to determine whether the respondent's conduct warranted an order for costs against him.

Judge Carty, in delivering the decision, found that the applicant's costs application should be granted in full. The judge highlighted the respondent's conduct as a significant factor in the decision. The court considered the extensive and protracted nature of the proceedings, the respondent's failure to engage constructively, and the overall unfairness of the situation. Based on these considerations, the court ordered that the respondent pay the applicant's costs in the sum of $15,500, to be paid by a specified date. The form of the order is subject to review and potential variation as per the relevant court rules.

Orders

Orders of the court

NCC 715 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BREEN

Applicant

AND:

MR CALLOW

Respondent

ORDER MADE BY:

JUDGE CARTY

DATE OF ORDER:

10 DECEMBER 2024

THE COURT ORDERS THAT:

1. The respondent will pay the applicant’s costs on a party and party basis fixed in the sum of fifteen thousand and five hundred dollars ($15,500) with payment to be made by no later than 10 April 2025.

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).

Part XIVB 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NCC 715 of 2022
Judgment of:	JUDGE CARTY
Date of judgment:	10 December 2024
Catchwords:	FAMILY LAW – COSTS APPLICATION – granted – Respondent to pay costs of the applicant on a party and party basis in a fixed sum
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia Act 2021 ss 67, 69 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.04, 6.01. 6.05
Cases cited:	Bant & Clayton (Costs) [2016] FamCAFC 35; (2016) 56 Fam LR 31 Fitzgerald v Fish [2005] FamCA 158 Hawkins & Roe [2012] FamCAFC 77 Medlon & Medlon (No.6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664 Pascoe & Larsen (No 2) [2022] FedCFamC1A 126 Penfold & Penfold [1980] HCA 4; (1980) 144 CLR 311 Rice & Asplund (1979) FLC 90-725
Division:	Division 2 Family Law
Number of paragraphs:	64
Date of last submission/s:	3 April 2024
Date of hearing:	On the papers
Solicitor for the Applicant:	CDG Law
Solicitor for the Respondent:	Hoffman & Associates

NCC 715 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BREEN Applicant
AND:	MR CALLOW Respondent

ORDER MADE BY:	JUDGE CARTY
DATE OF ORDER:	10 DECEMBER 2024