Creighton & Creighton (No 4) - [2023] FedCFamC1F 69

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Creighton & Creighton (No 4) [2023] FedCFamC1F 69

File number: MLC 6907 of 2019

Judgment of: JOHNS J

Date of judgment: 6 March 2023

Catchwords: COSTS – where the wife seeks that the husband pay indemnity costs – where the husband filed no response to the wife’s submissions – consideration of s 117(2A) factors – where there are exceptional circumstances to award costs on an indemnity basis – order that the husband pay the wife’s costs on an indemnity basis

Legislation:
Family Law Act 1975 (Cth) ss 117

Federal Circuit and Family Court of Australia (Family Law) Rules (2021), Rules 12.13, 12.17

Cases cited:
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

Creighton & Creighton (No 3) [2022] FedCFamC1F 978

I and I (1995) FLC 92-625

Kohan & Kohan (1993) FLC 92-340 Munday v Bowman (1997) FLC 92-784

Prantage & Prantage [2013] FamCAFC 105

Division: Division 1 First Instance

Number of paragraphs: 59

Date of last submission/s: 13 January 2023

Date of hearing: On the papers

Place: Melbourne

The Applicant: Self-Represented Litigant

Solicitor for the Respondent: Taussig Cherrie Fildes

Counsel for the Respondent: Ms Vohra SC
ORDERS

MLC 6907 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CREIGHTON

Applicant

AND:
MR CREIGHTON

Respondent

order made by:

JOHNS J

DATE OF ORDER:

6 March 2023

THE COURT ORDERS THAT:
1.That within 28 days of the date of these orders the husband pay the wife’s costs of and incidental to these proceedings on an indemnity basis fixed in the sum of $176,010.00

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.
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).
REASONS FOR JUDGMENT
INTRODUCTION

On 15 December 2022 I made final orders with respect to the parties’ competing parenting and property applications (“the Final Orders”). I did so for the reasons expressed in the Reasons for Judgment delivered that day.
As sought by the wife in her Amended Response to Initiating Application filed on 20 December 2019, the Final Orders dismissed the husband’s application for final property orders and also largely accorded with the relief sought by her in relation to the parenting dispute.
The wife now seeks orders that the husband pay her costs of 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 Creighton & Creighton (No 4)

Details

AGLC: Creighton & Creighton (No 4) [2023] FedCFamC1F 69
Case: [2023] FedCFamC1F 69
Decision Date

CaseChat Overview and Summary

The case of Creighton & Creighton (No 4) involves a wife, Ms. Creighton, who seeks an order for costs from her ex-husband, Mr. Creighton, on an indemnity basis. The case was heard by Justice Johns of the Federal Circuit and Family Court of Australia. The wife filed her application for costs following the final orders made by the court with respect to the parties' competing parenting and property applications. The wife's application was filed on 20 December 2019, and she seeks her costs from that date. The husband has filed no submissions in opposition to the wife's application for costs.

The legal issues before the court were whether there were circumstances that justified an order for costs and if so, whether those costs should be paid on an indemnity or party/party basis. The court considered the wife's submissions and found that the husband's conduct in the proceedings warranted an order for costs. The court found that the husband's failure to comply with court orders and directions, his non-compliance with disclosure obligations, and his failure to accept the wife's offers of settlement were relevant considerations in the determination of her application for costs.

Justice Johns found that the husband's conduct in the proceedings not only justified a departure from the usual position that each party should pay their own costs but also satisfied the court that the circumstances of this matter were so exceptional as to justify an order for indemnity costs. The court was satisfied that the husband's conduct in the proceedings had resulted in the wife incurring additional and significant costs to respond to his application and had prolonged the proceedings.

The court fixed the wife's costs on an indemnity basis from 11 April 2021, being one month after the husband was served with the wife's original offers of settlement. The court allowed the following claims relating to the wife's legal costs for the period from 11 April 2021 to the conclusion of the proceedings: attending mention hearings, interim defended hearings, case management hearings, and trial preparation, as well as drafting and preparation of costs submissions. The total professional fees and counsel fees were fixed in the sum of $176,010.00.

The court ordered that the husband pay the wife's costs of and incidental to the proceedings on an indemnity basis fixed in the sum of $176,010.00.

Orders