Carros & Carros (No 3)

Case [2023] FedCFamC2F 1252


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Carros & Carros (No 3) [2023] FedCFamC2F 1252

File number(s): MLC 3767 of 2021
Judgment of: JUDGE A. HUMPHREYS
Date of judgment: 28 September 2023
Catchwords: FAMILY LAW – COSTS – Calderbank offer to settle not accepted by wife – ultimate outcome more favourable to husband than was offered – order for costs – indemnity costs refused – costs to be calculated pursuant to scale – matter to be listed for mention for costs to be fixed if parties cannot agree on quantum
Legislation:

Family Law Act 1975 (Cth) ss. 79, 117, 117C

Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 191

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch. 1

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr. 1.04, 12.13

Central Practice Direction – Family Law Case Management

Cases cited:

Browne & Green (2002) FLC 93–115; [2002] FamCA 791

Calderbank v Calderbank [1975] 3 All ER 333

Carros & Carros (No 2) [2023] FedCFamC2F 564

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 119 CLR 118; [1993] FCA 801

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298

Hogan & Hogan (1986) FLC 91–704; [1986] FamCA 34

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

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

Pennisi & Pennisi (1997) FLC 92–774; [1997] FamCA 39

Yunghanns v Yunghanns (2000) FLC 93–029; [2000] FamCA 681

Division: Division 2 Family Law
Number of paragraphs: 62
Date of last submission/s: 22 August 2023
Date of hearing: on the papers
Place: Melbourne
Solicitors for the Applicant: Lampe Family Lawyers
Solicitors for the Respondent: Greg Murphy Legal

ORDERS

MLC 3767 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CARROS

Applicant

AND:

MS CARROS

Respondent

ORDER MADE BY:

JUDGE A. HUMPHREYS

DATE OF ORDER:

28 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The respondent (“wife”) pay to the applicant (“husband”) the costs of these proceedings relating to the period from 11 January 2022 to 17 May 2023 in an amount to be fixed, calculated pursuant to the scale of costs in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (“the Scale”).

2.If after conferring via their lawyers, the parties are unable to reach agreement on the quantum of costs to be fixed for the purposes of order 1 within 14 days from the date of these orders and do not submit an agreed position to chambers by email within that timeframe, the parties and their lawyers attend a mention before Judge A. Humphreys on 23 October 2023 at 9.30 am (via Microsoft Teams) for the purpose of the court fixing costs pursuant to…

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AGLC
Carros & Carros (No 3) [2023] FedCFamC2F 1252
Case
[2023] FedCFamC2F 1252
Decision Date

CaseChat Overview and Summary

The case of Carros & Carros (No 3) involves a dispute between Mr Carros, the applicant, and Ms Carros, the respondent, in the Federal Circuit and Family Court of Australia. The matter pertains to costs associated with family law proceedings, specifically regarding a settlement offer made by the husband that was not accepted by the wife. The court was tasked with determining the appropriate costs to be awarded, if any, and the method for calculating those costs. The judge also considered whether an indemnity basis for costs should apply.

The central legal issue before the court was whether the husband was entitled to costs, and if so, whether they should be assessed on a standard or indemnity basis. This question arose from a Calderbank offer made by the husband, which was a formal offer to settle the case on specified terms. The wife had rejected this offer, but the outcome of the case ultimately favoured the husband more than the terms he had offered. The court had to decide whether the husband's more favourable outcome justified awarding costs against the wife, and if so, on what basis.

Judge Humphreys determined that the wife should pay the husband's costs for the period from 11 January 2022 to 17 May 2023. The court reasoned that while the husband's final outcome was better than his offer, it was not sufficiently better to warrant indemnity costs. Instead, the costs would be calculated based on the scale set out in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021. The court also set a timeline for the parties to attempt to agree on the quantum of costs themselves, with a requirement to appear before the court if they could not reach an agreement. This approach aimed to encourage settlement while ensuring that the prevailing party received appropriate compensation for the proceedings.

Orders

Orders of the court

MLC 3767 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CARROS

Applicant

AND:

MS CARROS

Respondent

ORDER MADE BY:

JUDGE A. HUMPHREYS

DATE OF ORDER:

28 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. The respondent (“wife”) pay to the applicant (“husband”) the costs of these proceedings relating to the period from 11 January 2022 to 17 May 2023 in an amount to be fixed, calculated pursuant to the scale of costs in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (“the Scale”).

2. If after conferring via their lawyers, the parties are unable to reach agreement on the quantum of costs to be fixed for the purposes of order 1 within 14 days from the date of these orders and do not submit an agreed position to chambers by email within that timeframe, the parties and their lawyers attend a mention before Judge A. Humphreys on 23 October 2023 at 9.30 am (via Microsoft Teams) for the purpose of the court fixing costs pursuant to the Scale.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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