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 today. The husband was called in the precincts of the Court; he did not answer that call. Telephone calls were made to his two mobile telephones at 10:10am. Both of those calls immediately went to voicemail. A further telephone call was made to the husband’s assistant, Ms B; again, that call went immediately to voicemail.
Senior Counsel for the wife has provided the Court with copies of emails sent to the husband yesterday afternoon. The first, sent at 4:30pm, is an email from the wife’s lawyers to the husband, serving a copy of the orders I made yesterday. Having regard to the content of that email, I am satisfied that the husband has had notice of the continuation of the hearing today. I am further satisfied that he has had notice of the obligation upon him to personally attend Court. He has not done so.
I have heard the completion of closing submissions by Senior Counsel for the wife and otherwise the matter has concluded. Counsel for the ICL now makes an application for costs. It is his submission that the matter would otherwise have concluded yesterday had the husband remained at Court. There is no information or evidence from the husband that would explain his decision to leave the Court precincts midway through the morning yesterday. In those circumstances, an order is sought on behalf of the ICL that the husband pay the ICL’s costs of attending Court this day, fixed in the sum of $1,642.
The general rule in relation to costs is that each party to proceedings under the Family Law Act 1975 (Cth) (“the Act”) should bear their own costs. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to the provisions of subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.
Section 117(2A) of the Act sets out the matters that the Court should have regard to in considering whether to make an order for costs. Those circumstances are, firstly, the financial circumstances of each of the parties to the proceedings. These proceedings relate to both financial and parenting matters. The Notice Disputing Facts filed and relied upon by the husband (Exhibit F3) discloses that he holds real estate valued at approximately $5.5 million and that he has a number of motor vehicles valued at approximately $500,000.
On the face of the material, there being very little material produced by the husband but noting his own concessions as to the value of his assets, I am satisfied that he has the financial wherewithal to meet an order for costs.
Section 117(2A)(b) relates to whether any party is in receipt of Legal Aid. The ICL is funded by Victoria Legal Aid. The husband has elected to represent himself in the proceedings. The wife is represented by Senior Counsel and a Solicitor.
Section 117(2A)(c) relates to the conduct of the parties in the proceedings; it is that subsection that the ICL principally relies upon in support of the application for costs. The conduct of the husband in the proceedings has been most unsatisfactory. I have heard detailed submissions and I am satisfied that in many instances, he has not complied with Court orders. The orders not complied with include, but are not limited to, the trial directions I made on 10 December 2021.
The husband, without notice, left the Court building at the mid-morning break yesterday. There has been no communication by him to the Court since that time. Such conduct displays a discourtesy both to the Court and also to Counsel for the ICL and Senior Counsel and Solicitor for the wife. I am satisfied that such conduct is relevant in the consideration of the application for costs.
Section 117(2A)(d) relates to the question of whether the proceedings have been necessitated by a failure of a party to the proceedings to comply with previous orders. I have already referred to those matters.
Section 117(2A)(e) and (f) are not relevant to the current application.
Having regard to the husband’s conduct in absenting himself from the Court partway through closing submissions, I am satisfied that an order for costs is appropriate. It is clear that the matter would have otherwise been finalised yesterday had the husband remained at Court. I am informed that the Solicitor for the wife did communicate with the husband and his assistant, albeit briefly, following his departure from Court yesterday and I am informed that that Solicitor proposed that the husband continue to participate in the proceedings electronically. That invitation, I am told, was refused by him. In circumstances where no communication has been received by him since his departure from Court yesterday, I am satisfied that it is appropriate that an order for costs of the ICL thrown away this day be made.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 1 September 2022
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