Edinger & Duy (No 5)

Case [2024] FedCFamC1F 495

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Edinger & Duy (No 5) [2024] FedCFamC1F 495

File number(s): PAC 4543 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 25 July 2024
Catchwords: FAMILY LAW – COSTS – Where the father seeks costs for the entirety of the proceedings – Application for indemnity costs – Where the mother is in breach of Court orders – Where the mother has fled the jurisdiction – Where costs are ordered on a party-party basis in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) ss 117

Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:

Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Bhatt & Acharya (Costs) [2017] FamCAFC 71

Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

Edinger & Duy (2023) 68 Fam LR 55; [2023] FedCFamC1A 194

Edinger & Duy (No 4) [2024] FedCFamC1F 303

Imberg & Cabrey [2020] FCCA 1053

In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Lenova & Lenova (Costs) (2011) FLC 93-467; [2011] FamCAFC 141

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28

Division: Division 1 First Instance
Number of paragraphs: 47
Date of last submission/s: 5 June 2024
Date of hearing: In Chambers
Place: Sydney
Counsel for the Applicant: Mr Givney
Solicitor for the Applicant: Maclarens Lawyers
The Respondent: No appearance

ORDERS

PAC 4543 of 2020

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

MR EDINGER

Applicant
AND:

MS DUY

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 JULY 2024

THE COURT ORDERS THAT:

1.The Respondent pay the Applicant’s costs fixed in the sum of $55,000.

2.Such payment shall be made within 28 days of the publication of these orders.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes…

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AGLC
Edinger & Duy (No 5) [2024] FedCFamC1F 495
Case
[2024] FedCFamC1F 495
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Edinger v Duy is a case where the father is seeking costs for the entire proceedings. The mother has been uncooperative since the father's solicitor last appeared before the Court on 30 June 2023, and has not provided any material since her written submissions on 31 March 2023. The father appealed the final orders made by Hannam J, and on 10 November 2023 the Full Court allowed the appeal. The father was granted a costs certificate, and the matter was remitted for rehearing. The father has requested indemnity costs for the entirety of the proceedings. The mother has been uncooperative and in breach of the Court orders since fleeing the jurisdiction, and it is in the interests of justice for the mother to pay costs fixed in the sum of $55,000. The Court ordered that the mother pay the father's costs fixed in the sum of $55,000, to be paid within 28 days of the publication of these orders.

The legal issues before the court were whether the father was entitled to indemnity costs for the entirety of the proceedings, and if so, what the appropriate amount of costs should be. The court considered the mother's conduct, including her failure to comply with court orders, and her actions that appeared to be deliberately designed to frustrate the proceedings. The court also considered the father's estimate of his legal costs, which was based on his most recent Costs Notice filed on 27 February 2023. The court concluded that it was in the interests of justice for the mother to pay costs fixed in the sum of $55,000. The court noted that the father's estimate of his legal costs was based on limited and outdated information, and that it was appropriate to order a fixed sum of costs to avoid further delay and inconvenience.

The court's reasoning was based on the mother's conduct, which was seen as deliberately designed to frustrate proceedings and prevent the father from accessing the child. The court also noted that the father's estimate of his legal costs was based on limited and outdated information, and that it was appropriate to order a fixed sum of costs to avoid further delay and inconvenience. The court considered the mother's failure to comply with court orders, and her actions that appeared to be deliberately designed to frustrate the proceedings. The court concluded that it was in the interests of justice for the mother to pay costs fixed in the sum of $55,000. The court also noted that the father had incurred significant legal costs in the proceedings, and that it was appropriate for the mother to contribute towards those costs.

Orders

Orders of the court

PAC 4543 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR EDINGER

Applicant

AND:

MS DUY

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 JULY 2024

THE COURT ORDERS THAT:

1. The Respondent pay the Applicant’s costs fixed in the sum of $55,000.

2. Such payment shall be made within 28 days of the publication of these orders.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The mother has not participated in proceedings since her solicitor last appeared before the Court on 30 June 2023. No material has been provided by the mother since she filed written submissions on 31 March 2023 in accordance with Order 3 made by Hannam J on 7 March 2023. Despite being a party to the proceedings, and being aware of the father’s pleadings, the Court cannot compel the mother to engage (Imberg & Cabrey [2020] FCCA 1053 at [186] (“Imberg & Cabrey”)).BACKGROUND These proceedings between the father and the mother have been ongoing since 1 September 2020. The parties were married in early 2012 and separated on 31 August 2020. There is one child to the marriage, X born 2015 (“the child”). The mother has another child from a previous relationship who also lived with the parties when they resided together. On 2 June 2023, Hannam J made final orders for the child to live with the mother, for her to have sole parental responsibility for the child and for the child to spend no time with the father. The mother was permitted to apply for a passport and to travel overseas with the child for a holiday. Following these orders, in June 2023, the mother departed Australia for Country D with the child and has not returned since. The father appealed the final orders made by Hannam J, and on 10 November 2023 the Full Court allowed the appeal (Edinger & Duy (2023) 68 Fam LR 55 (“Edinger & Duy”)). The father was granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs incurred by him in the appeal, and the matter was remitted for rehearing. On 14 December 2023, I made orders by consent between the father and the Independent Children’s Lawyer for the mother to return the child to Australia, cause him to reside within a 15 kilometre radius of V School, and for service to be effected on the mother by way of substituted service. I also listed the matter for final hearing and made trial directions, noting that if there was no appearance by the mother, the matter would proceed on an undefended basis. The matter proceeded before me on 18 April 2024 on an undefended basis. I made orders on a final basis for the father to have sole parental responsibility for the child, for the child to live with the father, for the mother to return the child to Australia within 21 days, and thereafter for the mother to be restrained from causing the child to reside in any country other than Australia. I further made orders for the child to spend time with the mother from 10.00 am until 1.00 pm each Sunday supervised by a contact agency with staff who are able to understand the Country D language. Contrary to orders of this Court, the child is living with the mother, most likely in Country D, where she is known to have both family and assets. As Country D is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the father will be using his best endeavours to have orders made by this Court recognised and enforced in Country D, such that the child returns to Australia.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The most recent evidence proffered by the father as to his legal costs in this matter can be found in a Costs Notice filed 27 February 2023. This at most provides a limited and outdated insight to the Court. It has long been accepted that “where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum, by doing so, the Court can avoid further delay and inconvenience” (Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51]). Due to the paucity of evidence and the practical limitations this imposes, it is appropriate to order a fixed sum of costs in this matter.CONCLUSION Based the mother’s conduct and failure to comply with the orders of this Court, the father ought to receive some relief towards to his costs. The mother’s behaviour since fleeing the jurisdiction can only be thought of as deliberately designed to frustrate proceedings and to prevent the father from accessing the child, especially in circumstances where she continues to view filed material on the Commonwealth Courts Portal. The mother is currently in breach of my orders made 18 April 2024. In the father’s most recent Costs Notice filed 27 February 2023, it is estimated that the father would incur a further $55,000 in legal fees to the conclusion of these proceedings. It is unfortunate that more up-to-date material is not available to verify this. However, on this basis, I am satisfied that it is in the interests of justice for the mother to pay costs fixed in the sum of $55,000.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.