Doon & Jing (No 3)
[2023] FedCFamC1F 1109
•21 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Doon & Jing (No 3) [2023] FedCFamC1F 1109
File number(s): BRC 16456 of 2020 Judgment of: HOWARD J Date of judgment: 21 December 2023 Catchwords: FAMILY LAW – COSTS – Property proceedings under s 79 of the Family Law Act 1975 (Cth) – Where the wife was the applicant in the property proceedings – Where the wife failed in her duty to provide disclosure to the husband – Where the wife abandoned the property proceedings without explanation to the Court or to the husband – Where the wife’s conduct was so egregious that a costs order is appropriate in the circumstances. Legislation: Family Law Act 1975 (Cth) ss 79, 117(1), 117(2), 117(2A) Division: Division 1 First Instance Number of paragraphs: 10 Date of last submission: 9 June 2023 Date of hearing: 6 April 2023 Place: Brisbane Counsel for the Applicant: Ms McLennan Solicitor for the Applicant: Dante Chen Lawyers Counsel for the Respondent: Mr Fronis Solicitor for the Respondent: Aston Lawyers ORDERS
BRC 16456 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DOON
Applicant
AND: MS JING
Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
21 DECEMBER 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That the wife shall pay the husband's costs fixed in the sum of $75,894.50.
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 Doon & Jing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
On 20 November 2020, the applicant husband filed an application for parenting orders. That application was amended on 29 November 2020. The parenting case was settled between the parents and resolved by way of a consent order before a Judicial Registrar on 9 March 2023. The two children live in Australia with the father and the mother has returned to live in Country B.
When the wife filed a response to the husband's initiating application she sought property settlement orders pursuant to s 79 of the Family Law Act (Cth) 1975 (“the Act”).
By order made 6 April 2023 the Court dismissed the wife's application for property settlement orders (Order 2). Reasons were provided at that time. The Court notes that the wife had failed to provide her lawyers with instructions; the wife’s lawyers were given leave to withdraw; the wife failed to attend Court when ordered to do so. The wife failed to properly comply with her duty of disclosure.
The husband was then given time to make an application for costs and to provide submissions and an affidavit in support of such application. He was to do so by 9 June 2023. On 9 June 2023 the husband did make an application for costs and he provided a written submission and an accompanying affidavit.
The wife had until 4.00pm on 23 June 2023 to respond to the application for costs. The wife did not respond and the wife did not provide any written submission in relation to the husband’s application for costs.
I have had regard to all the relevant subsections in s 117 of the Act. Section 117(1) provides the general rule that each party to proceedings under the Act shall bear his or her own costs. However, the Court retains the discretion to make a costs order as the Court considers just.
I have closely considered all the relevant matters mentioned in s 117(2A). I do not propose referring to each of the subsections individually but I will highlight the conduct of the wife in relation to the proceedings. The wife more than once failed to comply with her duty of disclosure. Also, more than once the wife failed to attend Court when ordered to do so. Finally, the wife returned to live in Country B without providing notice to the husband's legal representatives. The wife, having put the husband to the expense of paying lawyers in relation to the property proceedings commenced by the wife – then proceeded to abandon those property proceedings – that is the effect of her conduct. In those circumstances the conclusion that I have drawn is that there should be a costs order made in favour of the husband. I have had regard to the amount of costs sought by the husband. I have had regard to the written submissions prepared by the lawyer for the husband. I accept the correctness of those decisions – although I do note that the wife's property proceedings were dismissed and not merely stayed as is referred to on page 3 of those submissions.
The husband had applied for a stay of the property proceedings and that matter was dealt with by the Court on 4 May 2022. The husband's application for a stay of the property proceedings was dismissed.
The husband, in this current costs application before the Court includes as annexures to his own affidavit (affirmed on 8 June 2023 and filed 9 June 2023) his legal costs in respect of his own unsuccessful application for a stay in May 2022. Ordinarily, there would be compelling arguments against such a costs order. However, given that the wife opposed the making of the stay application and then proceeded to fail in her duty to provide disclosure; failed to attend Court when she was ordered to do so; and noting her abandonment of the property proceedings without explanation to the Court – the view that I have formed is that the husband should be entitled now to a costs order that would include the costs that he had to pay to his own lawyers in respect of the May 2022 stay application. Annexed to the husband's affidavit referred to above are copies of a memorandum of fees for the husband's solicitor and for his counsel. Given the wife's failure to comply with her duty of disclosure and given the wife's abandonment of the property proceedings without explanation to the Court – the view that I have formed is that the wife's conduct has been so egregious as to warrant the making of a costs order that would cover all of the fees incurred by the husband – including solicitor’s and counsel’s fees, as documented in the annexures to the husband's affidavit affirmed on 8 June 2023. The substantial legal fees paid by the husband totals $75,894.50. This includes $55,214.50 to his solicitor and $20,682 to his counsel. In my view these fees are reasonable – noting the wife's conduct in the proceedings which I have described as egregious.
The conclusion I have reached is that it is just for a costs order to be made in favour of the husband against the wife in the total amount of $75,894.50. I appreciate that this effectively amounts to an indemnity costs order. Indemnity costs are only ordered in exceptional circumstances. These are exceptional circumstances. I have already provided adequate reasons to support the conclusion that these are exceptional circumstances. An order will issue to reflect these reasons.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 21 December 2023
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