Brodeway & Fenton

Case [2023] FedCFamC1F 247

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Brodeway & Fenton [2023] FedCFamC1F 247

File number(s): SYC 5229 of 2021
Judgment of: SCHONELL J
Date of judgment: 5 April 2023
Catchwords: FAMILY LAW – COSTS – Where the wife sought a costs order – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where the circumstances do not justify making an indemnity costs order – Where orders were made by consent and the husband has failed to comply with those orders – Where the husband has not complied with the overarching purpose of family law practice and procedure – Costs ordered as agreed or assessed.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:

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

Colgate Palmolive Company and Another v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

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

Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: Division 1 First Instance
Number of paragraphs: 41
Date of last submissions: 31 March 2023
Place: Sydney
Solicitor for the Applicant: Barkus Doolan Winning
Solicitor for the Respondent: Watts McCray

ORDERS

SYC 5229 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS BRODEWAY

Applicant
AND:

MR FENTON

Respondent

order made by:

SCHONELL J

DATE OF ORDER:

5 APRIL 2023

THE COURT ORDERS THAT:

1.The respondent husband pay the applicant wife’s costs as agreed or assessed in relation to the Application in a Proceeding filed 2 February 2023 including her costs incurred in the bringing of an application for costs, with such costs to be paid within 28 days of agreement or assessment.

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 Brodeway & Fenton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SCHONELL J:

  1. On 2 February 2023, the applicant wife (“the wife”) by…

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AGLC
Brodeway & Fenton [2023] FedCFamC1F 247
Case
[2023] FedCFamC1F 247
Decision Date

CaseChat Overview and Summary

Brodeway and Fenton were married in 2002 and separated in 2021. The wife initiated proceedings in the Federal Circuit and Family Court of Australia on 19 July 2021, seeking an order for the distribution of the parties' assets, including interests in companies and trusts. The Court made orders on 2 September 2021 for single expert valuations of the parties' property. The matter came before the Court on 14 October 2022, when the Court made orders by consent. The wife applied for costs, alleging that the husband had failed to comply with the Court's orders and had engaged in prolonged and extensive litigation, causing delays in the proceedings.

The Court was required to determine whether the husband had complied with the overarching purpose of family law practice and procedure and whether his failure to comply with the Court's orders had led to the wife incurring costs. The Court had to consider the husband's conduct, including his failure to provide disclosure and sign a retainer for the single expert, and whether his actions had caused delays in the proceedings.

The Court found that the husband had not complied with the overarching purpose of family law practice and procedure. The husband had failed to provide disclosure and sign a retainer for the single expert, and his failure to comply with the Court's orders had led to delays in the proceedings. The Court noted that the parties had been advised of the extensive delays in the Federal Circuit and Family Court of Australia and had been requested to consider referring the matter to arbitration as an avenue to have the matter determined on a final basis. The Court concluded that the husband's failure to comply with the Court's orders had led to the wife incurring costs and that the circumstances justified the making of an order for costs.

The Court ordered the husband to pay the wife's costs as agreed or taxed. The Court declined to make an order for indemnity costs, but noted that it would make an order for the husband to pay the wife's costs as agreed or taxed. The Court did not specify the amount of costs to be paid by the husband, leaving it to the parties to agree on the costs or for the costs to be taxed by the Court.

Orders

Orders of the court

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Background

Background to the litigation

For reasons which will become apparent, I decline to make an order for indemnity costs but will make an order for the husband to pay the wife’s costs as agreed or taxed.BACKGROUND The parties commenced cohabitation in or about 1996, married in 2002 and separated on 1 March 2021. There are two children of their marriage. The wife contends that the parties’ assets include various interests in companies and trusts. The wife commenced proceedings consequent upon the breakdown of the parties’ relationship on 19 July 2021. Orders were made on 2 September 2021 for the obtaining of single expert valuations in relation to the property of the parties. It is apparent from the wife’s affidavit, and not the subject of significant dispute by the husband, that following the making of those orders, attempts were made to try and resolve their financial dispute. That obviously has been unsuccessful. The matter came before the Court on 14 October 2022 when a Judicial Registrar made various orders by consent. Relevant to this application for costs, the Court noted:E.The Court is informed that there have been significant delays in relation to valuations for properties, plant machinery and equipment, and corporate and trust entities. The Court is informed that the Respondent Husband has yet to answer disclosure requests or sign a retainer for the Single Expert. …H.The parties and their lawyers are reminded of their obligations under clauses 1.4 and 3.13(c) of the Central Practice Direction – Family Law Case Management to engage in productive and resolution-focused communication with each other and to continue to negotiate between Court events.I.The parties have been advised of the extensive delays in the Federal Circuit and Family Court of Australia with respect to final hearing dates, and the parties are requested to seriously consider referring the matter to Arbitration as an avenue to have the matter determined on a final basis.J.The parties are requested to seriously consider the financial consequences, legal costs and personal impacts on themselves, their families and on their children associated with pursuing prolonged and extensive litigation in the family law system. The Court then made orders by consent which included:4.That by no later than 21 October 2022, the Husband shall provide to the Wife's solicitors:4.1.a copy of all detailed stock inventories and general inventory listings as at 31 December 2021 and the current date for [B Limited] and [C Pty Ltd]; and 4.2.detailed inventories of all plant, machinery and equipment of all entities the subject of valuation by the single expert accountant as at 31 December 2021 and the current date. …6.That by no later than 4pm on 21 October 2022, the Husband shall select one single expert valuer / valuation company nominated by the Wife pursuant to Order 5 and he shall advise the Wife of his selection and of any amendments he requires be made to the letter of instruction to such valuer. …8.By not later than 21 October 2022, the Husband shall provide to the Wife's solicitors the current certificates of registration for each motor vehicle owned by each of the corporate and/or trust entities being valued by the single expert accountant together with the following particulars for each such vehicle:8.1. make, year of manufacture and model; and 8.2. current odemeter [sic] reading.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The overarching purpose is reinforced by the Rules and the Central Practice Direction – Family Law Case Management (CPD), especially the core principles which include that parties must conduct the proceedings (including negotiations for settlement of the dispute) in a way that is consistent with the overarching purpose. CONCLUSION I am satisfied that the husband has not complied with the overarching purpose of family law practice and procedure. I am satisfied that the husband’s failure to comply with orders of the Court have led to the wife incurring costs and that the circumstances justify the making of an order for costs. Accordingly, I will make an order in the terms as sought by the wife.

Ratio Decidendi

Legal Principle Established

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