Creighton & Creighton (No 2) - [2022] FedCFamC1F 663

Federal Circuit and Family Court of Australia
(DIVISION 1)
Creighton & Creighton (No 2) [2022] FedCFamC1F 663

File number(s): MLC 6907 of 2019

Judgment of: JOHNS J

Date of judgment: 1 September 2022

Catchwords: FAMILY LAW – COSTS – application for costs thrown away – where the husband has failed to attend court as ordered – where the husband had absented himself from the court partway through the final hearing – where the husband has failed to communicate with the court – where the husband’s conduct has necessitated an additional day of hearing – where the husband has the financial means to meet a costs order – where the costs thrown away of the ICL should be met by the husband

Legislation: Family Law Act 1975 (Cth) ss 117

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 1 September 2022

Place: Melbourne

Counsel for the Applicant: No Appearance

Counsel for the Respondent: Ms Vohra SC

Solicitor for the Respondent: Taussig Cherrie Fildes

Counsel for the Independent Children's Lawyer: Mr De Vries

Solicitor for the Independent Children's Lawyer: VM Family Lawyers
ORDERS

MLC 6907 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CREIGHTON

Applicant

AND:
MS CREIGHTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JOHNS J

DATE OF ORDER:

1 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The husband pay the Independent Children’s Lawyers’ costs of this day, fixed in the sum of $1,642.
2.The wife’s costs, including costs of Senior Counsel, be reserved.

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 Creighton & Creighton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT

The matter of Creighton comes before the Court again today, being the fourth day of the final hearing. I refer to my ex tempore Reasons for Judgment delivered yesterday as to the circumstances of why the matter was adjourned to today.
Yesterday, I made orders, adjourning the proceedings to today for the completion of closing submissions. Further orders were made requiring the husband, who absented himself from the Court yesterday without notice or any communication, to personally attend at Court today and produce a medical certificate providing an explanation as to why he was unable to continue with the hearing yesterday.
The matter recommenced at 10:00am…

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 Creighton & Creighton (No 2)

Details

AGLC: Creighton & Creighton (No 2) [2022] FedCFamC1F 663
Case: [2022] FedCFamC1F 663
Decision Date

CaseChat Overview and Summary

The case of Creighton & Creighton (No 2) involves Mr. Creighton, the applicant, and Ms. Creighton, the respondent. The matter was before the Federal Circuit and Family Court of Australia, Division 1, on the fourth day of the final hearing in a case concerning both financial and parenting issues. The Independent Children's Lawyer (ICL) sought an order for costs thrown away on the fourth day of the hearing, which arose due to Mr. Creighton's absence from court without notice or communication on the previous day. This absence necessitated an additional day of hearing, resulting in additional costs for the ICL.

The primary legal issue the court addressed was whether Mr. Creighton's conduct warranted an order for the ICL to recover the costs thrown away on the fourth day of the hearing. The court considered various factors under Section 117(2A) of the Family Law Act 1975 (Cth), including the financial circumstances of the parties, the conduct of the parties, and whether the proceedings had been necessitated by a failure to comply with previous orders. The court noted Mr. Creighton's substantial financial resources and his failure to comply with court orders, including leaving the court without notice and refusing to participate electronically as proposed by the wife's solicitor.

The court found that Mr. Creighton's conduct was unsatisfactory and disrespectful to the court and the other parties involved. The absence of communication from Mr. Creighton since his departure from court and the necessity of an additional day of hearing due to his absence led the court to conclude that an order for costs was appropriate. The court further determined that Mr. Creighton had the financial means to meet the costs order.

In light of the considerations and findings, the court ordered that Mr. Creighton pay the ICL's costs of the fourth day of the hearing, fixed in the sum of $1,642. The wife's costs, including costs of Senior Counsel, were reserved for further consideration.

Orders