Bulow & Bulow (No 5) - [2021] FedCFamC2F 166

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bulow & Bulow (No 5) [2021] FedCFamC2F 166

File number(s): ADC 1674 of 2014

Judgment of: JUDGE BROWN

Date of judgment: 13 October 2021

Catchwords: FAMILY LAW – application for costs – assessment of legal principles applicable to costs – where proceedings between parties have been vigorously contested – where parties have been self-represented for a majority of the proceedings – where the applicant made a settlement offer before the first trial proceeded – assessment of legal principles applicable to Calderbank offers – where the original trial judge made an order in excess of the offer proposed by the applicant in the offer of settlement – previous order for costs remains outstanding.

Legislation: Family Law Act 1975 (Cth), ss 79, 117, 117C
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth), r 4.01
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Pts 4.2, 12.6, rr 12.08, 12.13, 12.17
Federal Circuit Court Rules 2001 (Cth)

Cases cited:
Bulow & Bulow (No 3) [2021] FCCA 314
Bulow & Bulow (No 4) [2021] FCCA 1175
Bulow & Bulow [2017] FCCA 2657
Bulow & Bulow [2019] FamCAFC 3
Bulow & Bulow [2020] FamCAFC 120
Browne v Green (2002) 29 Fam LR 428
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557
In the Marriage of Kohan (1992) 16 Fam LR 245
In the Marriage of Steel (1992) 15 Fam LR 556
L & L [2003] FamCA 40
Pennisi v Pennisi (1997) 141 FLR 401

Other:

J D Heydon, Cross on Evidence (Lexis Nexis, 12^th ed, 2020).

Division: Division 2 Family Law

Number of paragraphs: 86

Date of hearing: 25 August 2021

Place: Adelaide

Counsel for the Applicant: The Applicant appearing In Person

Counsel for the Respondent: The Respondent appearing In Person
ORDERS

ADC 1674 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BULOW

Applicant

AND:
MR BULOW

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

13 OCTOBER 2021

UPON NOTING THAT:
A.There is a previous order of this Court where the respondent was directed to pay to the applicant a lump sum of costs fixed at FIVE THOUSAND AND FORTY FOUR DOLLARS ($5,044.00) and NOTING THAT this costs order remains outstanding.

THE COURT ORDERS THAT:
1.Within twenty eight (28) days of the date of this order, the respondent pay the applicant a lump sum of costs fixed at FIFTEEN THOUSAND DOLLARS ($15,000.00).

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…

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 Bulow & Bulow (No 5)

Details

AGLC: Bulow & Bulow (No 5) [2021] FedCFamC2F 166
Case: [2021] FedCFamC2F 166
Decision Date: 13 October 2021

CaseChat Overview and Summary

Ms Bulow applied for an order that Mr Bulow pay her costs incurred in the proceedings between the parties. The proceedings, which were vigorously contested and where both parties were self-represented for a majority of the time, were about parenting arrangements for the parties' children. The application was for an order for costs in the sum of $15,000. The parties had been before the Court on a number of occasions, including a trial that was completed in 2019. Before the first trial, the applicant made a settlement offer to the respondent. The respondent did not accept the settlement offer. At the trial, the trial judge ordered that the respondent pay the applicant a lump sum of costs fixed at $5,044. That order for costs remains outstanding. The respondent opposed the application on the basis that the costs claimed were excessive and not proportionate to the nature of the proceedings and the outcome.

The Court noted that the parties had been self-represented for a majority of the proceedings and that the proceedings were vigorously contested. The Court considered that the costs claimed were reasonable in the circumstances of the case. The Court found that the costs claimed were proportionate to the nature of the proceedings and the outcome. The Court also noted that the applicant had made a settlement offer to the respondent before the first trial. The Court found that the settlement offer was a genuine offer and that the offer should be taken into account when considering the costs to be awarded. The Court found that the respondent's refusal to accept the settlement offer was unreasonable and that the respondent should be penalised for that refusal.

The Court ordered that the respondent pay the applicant a lump sum of costs fixed at $15,000. The Court noted that there was a previous order of the Court for costs in the sum of $5,044, and that the respondent had not paid that sum. The Court ordered that the respondent pay the costs ordered in the present application within 28 days of the date of the order. The Court also noted that the form of the order was subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

ADC 1674 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BULOW

Applicant

AND:

MR BULOW

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

13 OCTOBER 2021

UPON NOTING THAT:

A. There is a previous order of this Court where the respondent was directed to pay to the applicant a lump sum of costs fixed at FIVE THOUSAND AND FORTY FOUR DOLLARS ($5,044.00) and NOTING THAT this costs order remains outstanding.

THE COURT ORDERS THAT:

1. Within twenty eight (28) days of the date of this order, the respondent pay the applicant a lump sum of costs fixed at FIFTEEN THOUSAND DOLLARS ($15,000.00).

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.

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):	ADC 1674 of 2014
Judgment of:	JUDGE BROWN
Date of judgment:	13 October 2021
Catchwords:	FAMILY LAW – application for costs – assessment of legal principles applicable to costs – where proceedings between parties have been vigorously contested – where parties have been self-represented for a majority of the proceedings – where the applicant made a settlement offer before the first trial proceeded – assessment of legal principles applicable to Calderbank offers – where the original trial judge made an order in excess of the offer proposed by the applicant in the offer of settlement – previous order for costs remains outstanding.
Legislation:	Family Law Act 1975 (Cth), ss 79, 117, 117C Federal Proceedings (Costs) Act 1981 (Cth) Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth), r 4.01 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Pts 4.2, 12.6, rr 12.08, 12.13, 12.17 Federal Circuit Court Rules 2001 (Cth)
Cases cited:	Bulow & Bulow (No 3) [2021] FCCA 314 Bulow & Bulow (No 4) [2021] FCCA 1175 Bulow & Bulow [2017] FCCA 2657 Bulow & Bulow [2019] FamCAFC 3 Bulow & Bulow [2020] FamCAFC 120 Browne v Green (2002) 29 Fam LR 428 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 In the Marriage of I & I (No 2) (1995) 22 Fam LR 557 In the Marriage of Kohan (1992) 16 Fam LR 245 In the Marriage of Steel (1992) 15 Fam LR 556 L & L [2003] FamCA 40 Pennisi v Pennisi (1997) 141 FLR 401 Other: J D Heydon, Cross on Evidence (Lexis Nexis, 12^th ed, 2020).
Division:	Division 2 Family Law
Number of paragraphs:	86
Date of hearing:	25 August 2021
Place:	Adelaide
Counsel for the Applicant:	The Applicant appearing In Person
Counsel for the Respondent:	The Respondent appearing In Person

ADC 1674 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BULOW Applicant
AND:	MR BULOW Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	13 OCTOBER 2021