Dixon & Young (No 2)

Case [2023] FedCFamC1F 780

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dixon & Young (No 2) [2023] FedCFamC1F 780

File number(s): SYC 7372 of 2019
Judgment of: KARI J
Date of judgment: 14 September 2023
Catchwords: FAMILY LAW – COSTS – Where the mother seeks an indemnity costs order – Where the court considers a costs order should be made – Where consideration is given to whether an order for indemnity costs should be made - Costs order made, fixed in the amount of $25,000
Legislation:

Family Law Act 1975 (Cth) (‘the Act’) s 117,

Federal Circuit and Family Court of Australia (Family Law) Rules (‘the Rules’) rr 12.06, 12.17,

Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 28 November 2022.
Cases cited:

Ackland & Grohl [2022] FedCFamC1A 137

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Kohan & Kohan [1992] FamCA 116

Lenova & Lenova (Costs) [2011] FamCAFC 141

Meadis & Meadis and Ors [2019] FamCAFC 146

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664

Munday & Bowman (1997) 22 Fam LR 321

Nada & Nettle (Costs) (2014) FLC 93-612

Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 217 ALR 175

Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Higginbotham & Robinson (1991) FLC 92-209

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Unreported, Federal Court of Australia, French J, 3 May 1991)
Division: Division 1 First Instance
Number of paragraphs: 75
Date of hearing: 23 August 2023
Place: Heard in Sydney, delivered in Adelaide
Counsel for the Applicant: Ms Reid
Solicitor for the Applicant: Pearson Emerson Family Lawyers
Counsel for the Respondent: Mr Sansom SC
Solicitor for the Respondent: ATW Family Law

ORDERS

SYC 7372 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DIXON

Applicant
AND:

MR YOUNG

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

14 SEPTEMBER 2023

THE COURT ORDERS:

1.That within 28 days the Respondent Father shall pay the Applicant Mother’s costs fixed in the amount of $25,000.

2.That the Amended Application in a Proceeding filed 4 August 2023 and the Response filed 22 August 2023 be otherwise dismissed.

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…

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AGLC
Dixon & Young (No 2) [2023] FedCFamC1F 780
Case
[2023] FedCFamC1F 780
Decision Date

CaseChat Overview and Summary

In the matter of Dixon & Young (No 2), the Federal Circuit and Family Court of Australia considered a dispute between the parents regarding costs in their parenting proceedings. The court was tasked with determining whether an order for costs should be made, and if so, whether it should be for indemnity costs. The case involved complex family dynamics, including substance abuse issues and a serious incident involving the children. The father had made allegations and conducted himself in a manner that the court found to be inappropriate and misleading, which justified the making of a costs order.

The legal issues before the court were whether an order for costs should be made in favour of the mother and, if so, whether it should be for indemnity costs. The court considered the father's conduct, including his failure to disclose relevant information about his partner, Ms D, and his overall conduct during the proceedings. The court found that the father's actions warranted a costs order, particularly due to his misleading statements and his role in unnecessarily prolonging the proceedings.

The court reasoned that the father's conduct justified making a costs order. It found that the father had acted inappropriately by not disclosing relevant information about Ms D's health issues and by misleading the court and other parties about her condition. The court noted that the father's actions were not only misleading but also contributed to the unnecessary prolongation of the proceedings. Based on these findings, the court concluded that an order for costs should be made in favour of the mother, and it fixed the amount at $25,000. The court found that while an order for indemnity costs was a significant step, the father's conduct warranted such a penalty.

The final orders of the court mandated that the father pay the mother's costs in the amount of $25,000 within 28 days. The court dismissed the amended application and response filed by the parties as the costs order addressed the primary issue before it. This decision highlights the importance of proper conduct in family law proceedings and the court's willingness to impose significant costs orders when warranted by the parties' behaviour.

Orders

Orders of the court

SYC 7372 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DIXON

Applicant

AND:

MR YOUNG

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

14 SEPTEMBER 2023

THE COURT ORDERS:

1. That within 28 days the Respondent Father shall pay the Applicant Mother’s costs fixed in the amount of $25,000.

2. That the Amended Application in a Proceeding filed 4 August 2023 and the Response filed 22 August 2023 be otherwise dismissed.

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

For the reasons that follow, an order for costs in a fixed amount shall be made.BACKGROUND The parenting proceedings were commenced by the father on 9 December 2020 with the filing of his Initiating Application. The proceedings were in relation to the parties’ three children:(a)X born 2009;(b)Y born 2011; and(c)Z born 2013. The parties and the short history of their relationship is as follows:(a)The father was born in 1978 and he is presently 45 years of age.(b)The mother was born in 1978 and she is also presently 45 years of age.(c)The parties began cohabiting in 1999, marrying in 2009.(d)The parties separated on a final basis on 2 August 2017 and were divorced in 2021. Prior to the parenting proceedings, the parties were able to amicably resolve the question of property settlement some three months after the mother filed an Initiating Application agitating the same. A Final Order was made in that regard on 26 February 2020. The effect of those orders shall be discussed later in these reasons. It is sufficient to understand for present purposes, however, that as a consequences of those orders, the mother retained the former matrimonial home in Suburb F, which is where she and the children have continued to reside. The parenting proceedings appear to have had a difficult trajectory, largely it would appear from a combination of two significant factors which led to there being significant mistrust between the parties and serious risk concerns agitated on the part of the mother:(a)Firstly, it is uncontroversial that the father has been troubled by significant substance abuse issues (drugs and alcohol) and concomitant difficulties, which saw him spend periods of time in hospital and various treatment facilities both during the marriage and in the post separation period.(b)Secondly, there was an “incident” involving the children, the father and the paternal grandfather in mid-2020. That incident led to the paternal grandfather being charged with an offence and an apprehended violence order being made naming the mother and the children as protected persons and the paternal grandfather as the defendant. The final parenting orders sought by the father in his Initiating Application filed on 9 December 2020 were not ever particularised. Instead the father sought “leave to amend his Final Orders as to the time he spends with the children pending the outcome and recommendations of Family Therapy”. The final parenting orders sought by the mother in her Response filed on 13 January 2021, in summary, provided for the mother to have sole parental responsibility and that the children live with her. The mother did not otherwise particularise any orders for time spending between the children and the father, seeking leave to amend her application following the release of a single expert report. At the first substantive hearing in the parenting proceedings on 20 January 2021, detailed parenting orders were made by a Senior Judicial Registrar which significantly for present purposes included:(a)Various orders made by consent, including:(i)That the children live with the mother.(ii)Orders for the preparation of a privately commissioned Family Report by Dr C, with the father to pay $9,000 towards Dr C’s fees.(iii)An order for family therapy with the mother to pay the costs of her own attendances, the father to pay the costs of his own attendances, together with the costs of the first four of the children’s attendances, with the parties to thereafter equally share the costs of the children’s attendances.(iv)Monthly drug screen urinalysis of the father at his sole expense for a period of twelve months.(v)Four occasions of three monthly hair follicle testing of the father at his sole expense.(b)Orders made as a result of determination, which included:(i)An order that the children spend supervised time with the father for four hours each Sunday, with such time occurring at a professionally supervised contact facility, with the parties to share in the costs of that service.(ii)The appointment of an Independent Children’s Lawyer.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This factor speaks in favour of making an order for costs. Conclusion as to whether a costs order should be made For all of the reasons that I have identified I am satisfied that an order for costs in favour of the mother should be made.Should an order for indemnity costs be made? It is well understood that an order for indemnity costs is a “very great departure” from the “normal standard”.[7][7] Kohan & Kohan [1992] FamCA 116. I have had regard to those matters discussed in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, particularly at 262. I have also had regard to the helpful summary of the circumstances that might justify an order for indemnity costs, enunciated by Holden CJ in Munday & Bowman (1997) 22 Fam LR 321 at 322:(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts: see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397. (b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud: see Fountain Selected Meats (Sales) Pty Ltd.(c) Evidence of particular misconduct causing loss of time to the court and to other parties: see Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (French J, Fed C of A, 3 May 1991, unreported).(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions: see Ragatta [sic] Developments Pty Ltd v Westpac Banking Corporation (Davies J, Fed C of A, 5 March 1993, unreported).(e)An imprudent refusal of an offer to compromise. I have already referred to the conduct of the father earlier in these reasons. On any view, in light of the conduct of the father to which I have earlier identified it appears that:(a)The father unnecessarily prolonged this aspect of the proceedings and the hearing on 9 February 2023; and(b)The father made allegations in this court in his affidavit filed 9 December 2020 which should not have been made given the evidence he gave in the Local Court proceedings. The mother also points to the father’s conduct in relation to the subpoena for records pertaining to the father’s partner Ms D. In that regard:(a)It is uncontroversial that:(i)A subpoena was filed by the mother directed to Ms D’s records from B Health Service;(ii)The father and Ms D resisted that subpoena, it would appear largely unsuccessfully; and(iii)The records that were produced, became relevant to the hearing on 9 February 2023, as among other things the records confirmed that Ms D had been an inpatient in B Health Service with a primary diagnosis of “alcohol use disorder” and was in “active detox”.[8](b)The mother’s position is that the father acted deceptively (calculatedly so), in failing to disclose to her the reasons for Ms D’s admission, not only in resisting the subpoena, but particularly when regard is had to:(i)The correspondence passing between solicitors on this topic which gave a different explanation for Ms D’s admission, which were described as “”Changes” which relates to childhood trauma and complex PTSD as a result of parental loss”;[9](ii)Allegations made by the father that the mother had been surveying Ms D, which were unfounded as the mother had come to learn of Ms D’s admission from NSW Police;(iii)The failure of the father and Ms D to disclose her attendance at the clinic to the mother, Dr C and the court.(c)It is the father’s position that he cannot be held responsible for the records kept by B Health Service, and that he intended to address the discrepancies during cross examination at a final hearing.[8] Mother’s affidavit filed 2 March 2023, paragraph 79. [9] Mother’s affidavit filed 2 March 2023, paragraph 69.

Ratio Decidendi

Legal Principle Established

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