Fabron & Fabron - [2022] FedCFamC1F 312

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fabron & Fabron [2022] FedCFamC1F 312

File number(s): SYC 1089 of 2019

Judgment of: HARPER J

Date of judgment: 10 May 2022

Catchwords: FAMILY LAW – COSTS – Respondent Mother seeks costs of parenting proceedings – Where father commenced parenting proceedings in 2019 – Where mother is self-represented – Where one child was already over the age of eighteen, and another child reached majority after proceedings were commenced – One remaining child aged sixteen within the Court’s jurisdiction – Parenting dispute dismissed by consent – Mother seeks indemnity costs – Disparate financial circumstances not itself sufficient to justify an order for costs – Where father’s conduct does not justify an order for costs – Application dismissed.

Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)

Cases cited:
Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131

B v J (2006) FLC 93-259; [2006] FamCA 256

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123; [2005] FamCA 158

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

Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178

Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83

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

Prantage & Prantage (Costs) [2014] FamCA 850

Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44

Division: Division 1 First Instance

Number of paragraphs: 36

Date of last submission/s: 14 April 2022

Date of hearing: On the papers

Place: Sydney

Solicitor for the Applicant: Barkus Doolan

The Respondent: Litigant in person
ORDERS

SYC 1089 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR FABRON

Applicant

AND:
MS FABRON

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

10 MAY 2022

THE COURT ORDERS THAT:
1.The application in a proceeding filed on 1 February 2022 by the Respondent Wife, seeking a costs order in her favour, be 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 by this Court under the pseudonym Fabron & Fabron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION

This judgment…

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 Fabron & Fabron

Details

AGLC: Fabron & Fabron [2022] FedCFamC1F 312
Case: [2022] FedCFamC1F 312
Decision Date

CaseChat Overview and Summary

In the matter of Fabron & Fabron, the primary dispute revolves around the allocation of legal costs between the parties, specifically the mother and the father, following a series of legal proceedings. The case was adjudicated by a court in Australia. The father raised concerns regarding the mother's financial obligations and her failure to comply with a prior court order, which mandated her to pay his legal costs from a previous appeal. The mother, in turn, sought an order for her legal costs from the period when she was represented by a lawyer.

The court was tasked with determining whether the circumstances warranted an order for the mother's legal costs to be paid by the father. This involved assessing various factors, including the financial disparities between the parties and whether the mother's failure to comply with a prior costs order influenced the court's decision. Furthermore, the court had to consider whether there were any exceptional circumstances that would justify an order for costs in the mother's favour.

The court's reasoning was grounded in the lack of justification for an order in the mother's favour. Despite the financial discrepancies between the parties, the court found that this alone was insufficient to warrant such an order. Additionally, since there were no justifiable circumstances for awarding costs to the mother, the issue of indemnity costs did not arise. Consequently, the court dismissed the mother's application for legal costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The father submits that the mother does not come with “clean hands” to this application, there being an order by the Full Court dated 9 November 2020 for the mother to pay his costs of the appeal in the amount of $5,243.40, which she has yet to comply with.CONCLUSION ON JUSTIFYING CIRCUMSTANCES Taking the above factors into consideration, I am not satisfied that there are circumstances justifying an order for costs in the mother’s favour for the period when she was represented. Although the parties have disparate financial circumstances, this is not, of itself, sufficient to grant an award of costs in the mother’s favour. Since there is no basis to justify any costs order, the question of indemnity costs does not arise. The wife’s application for costs will be dismissed.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 1089 of 2019
Judgment of:	HARPER J
Date of judgment:	10 May 2022
Catchwords:	FAMILY LAW – COSTS – Respondent Mother seeks costs of parenting proceedings – Where father commenced parenting proceedings in 2019 – Where mother is self-represented – Where one child was already over the age of eighteen, and another child reached majority after proceedings were commenced – One remaining child aged sixteen within the Court’s jurisdiction – Parenting dispute dismissed by consent – Mother seeks indemnity costs – Disparate financial circumstances not itself sufficient to justify an order for costs – Where father’s conduct does not justify an order for costs – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Cases cited:	Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131 B v J (2006) FLC 93-259; [2006] FamCA 256 D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123; [2005] FamCA 158 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Prantage & Prantage (Costs) [2014] FamCA 850 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Division:	Division 1 First Instance
Number of paragraphs:	36
Date of last submission/s:	14 April 2022
Date of hearing:	On the papers
Place:	Sydney
Solicitor for the Applicant:	Barkus Doolan
The Respondent:	Litigant in person

SYC 1089 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR FABRON Applicant
AND:	MS FABRON Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	10 MAY 2022