Field & Kingston (No 2) - [2022] FedCFamC1F 210

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Field & Kingston (No 2) [2022] FedCFamC1F 210

File number(s): PAC 2095 of 2014

Judgment of: RIETHMULLER J

Date of judgment: 6 April 2022

Catchwords: FAMILY LAW – Costs – Lump sum order made on party and party basis – No matters of principle.

Legislation: Family Law Act 1975 (Cth) ss 79A, 117(1), 117(2), 117(2A)(d)

Cases cited:
Field & Kingston [2021] FedCFamC1F 353

Field & Kingston [2021] FedCFamC1A 66

Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23

Division: Division 1 First Instance

Number of paragraphs: 28

Date of last submission/s: 9 February 2022

Place: Parramatta

Solicitor for the Applicant: Matthews Folbigg Lawyers

Solicitor for the Respondent: Cathers Beavers & Kamiya Lawyers
ORDERS

PAC 2095 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FIELD

Applicant

AND:
MR KINGSTON

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

6 APRIL 2022

THE COURT ORDERS THAT:
1.Within 14 days of the date of these orders, the respondent husband pay the applicant wife’s costs fixed in the sum of $22,604.38.

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 Field & Kingston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION

The wife was entirely successful in resisting an application by the husband pursuant to s 79A of the Family Law Act 1975 (Cth) (the Act) to set aside the property orders made in this matter and further to correct orders made by a registrar with respect to the amounts of interest owing on the outstanding monies due pursuant to property settlement orders.
The facts and circumstances relevant to this proceeding are set out in Field & Kingston [2021] FedCFamC1F 353, and the numerous judgments referred to therein.
BACKGROUND
On 21 November 2019 final property orders were made following a contested hearing. Those orders provided the husband with the option of paying the wife a sum of money to retain the parties’ property, and that if he did not pay the wife within a certain timeframe then the property be sold and the proceeds divided in shares set out in the orders. The husband was unable or unwilling to make the payment in the timeframe provided for in the orders.
Proceedings…

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 Field & Kingston (No 2)

Details

AGLC: Field & Kingston (No 2) [2022] FedCFamC1F 210
Case: [2022] FedCFamC1F 210
Decision Date: 6 April 2022

CaseChat Overview and Summary

The case of Field & Kingston (No 2) involved a lengthy, expensive, and protracted dispute between the parties over property settlement. The husband had been given the option to pay the wife a sum of money to retain the parties’ property, but he failed to do so within the specified timeframe, leading to the sale of the property. The wife sought interest on the money she was entitled to receive, and the husband sought to set aside the property settlement orders. The wife sought the summary dismissal of the husband's application, and the husband sought to stay the payment of the monies to the wife pending the determination of his application. The judge heard both applications together and dismissed the husband's application. The judge made a lump sum order for costs in favour of the wife, finding that the husband's application had no prospects of success and was an abuse of process. The judge also found that the husband's conduct throughout the proceedings had been unreasonable and had caused unnecessary expense to the wife.

The legal issues in the case centred around the interpretation and application of section 117 of the Family Law Act 1975 (Cth), which deals with costs in family law proceedings. The wife argued that the husband's application was an abuse of process and had no prospects of success, and that the judge should make a costs order against him. The husband argued that the judge should not make a costs order against him as his application was not an abuse of process and had prospects of success. The judge found that the husband's application was an abuse of process and had no prospects of success, and that the wife was entitled to costs. The judge also found that the husband's conduct throughout the proceedings had been unreasonable and had caused unnecessary expense to the wife.

The judge's reasoning in the case was based on the principles set out in section 117 of the Family Law Act 1975 (Cth). The judge found that the husband's application was an abuse of process as it was brought after the property had been sold and the wife had already been paid the sum of money she was entitled to receive. The judge also found that the husband's application had no prospects of success as it was unlikely that the court would set aside the property settlement orders. The judge further found that the husband's conduct throughout the proceedings had been unreasonable and had caused unnecessary expense to the wife, and that this was a relevant factor in determining whether to make a costs order against him. The judge made a lump sum order for costs in favour of the wife, and the husband was ordered to pay the wife's costs within 14 days of the date of the order.

In summary, the case of Field & Kingston (No 2) involved a dispute between the parties over property settlement, and the wife sought costs against the husband for his unsuccessful application to set aside the property settlement orders. The judge found that the husband's application was an abuse of process and had no prospects of success, and that the wife was entitled to costs. The judge also found that the husband's conduct throughout the proceedings had been unreasonable and had caused unnecessary expense to the wife, and that this was a relevant factor in determining whether to make a costs order against him. The judge made a lump sum order for costs in favour of the wife, and the husband was ordered to pay the wife's costs within 14 days of the date of the order.

Orders

Orders of the court

PAC 2095 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FIELD

Applicant

AND:

MR KINGSTON

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

6 APRIL 2022

THE COURT ORDERS THAT:

1. Within 14 days of the date of these orders, the respondent husband pay the applicant wife’s costs fixed in the sum of $22,604.38.

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

The facts and circumstances relevant to this proceeding are set out in Field & Kingston [2021] FedCFamC1F 353, and the numerous judgments referred to therein.BACKGROUND On 21 November 2019 final property orders were made following a contested hearing. Those orders provided the husband with the option of paying the wife a sum of money to retain the parties’ property, and that if he did not pay the wife within a certain timeframe then the property be sold and the proceeds divided in shares set out in the orders. The husband was unable or unwilling to make the payment in the timeframe provided for in the orders. Proceedings were brought before each Altobelli and Wilson JJ (on different points), and ultimately the property was sold pursuant to consent orders that were made in February 2021. The sale of the property settled in May 2021. Thereafter there was a dispute as to the correct sum to be paid to the wife, which was settled by the Full Court in Field & Kingston [2021] FedCFamC1A 66 in the wife's favour. Unsurprisingly, the wife also sought interest on the money she was entitled to receive pursuant to the orders. Thereafter, the husband, in September 2021, brought an application pursuant to s 79A of the Act seeking to set aside the property settlement orders, which had been affirmed previously by the Full Court in Field & Kingston [2021] FedCFamC1A 66, and with respect to which the High Court had refused to grant special leave to appeal. The wife sought the summary dismissal of the husband's s 79A application and the husband sought to stay the payment of the monies to the wife pending the determination of his s 79A application. In order to attempt to minimise the number of court events involved in the matter, I heard the summary dismissal application at the same time as the stay application. As I determined that the matter ought to be summarily dismissed it was not appropriate to grant a stay. On 17 December 2021 I gave judgment entirely in the wife's favour. There is no doubt that the issues determined in the most recent applications come at the end of particularly long, expensive and protracted litigation between the parties. It is also the case that these proceedings concerned the property of the parties and did not involve any parenting issues.COSTS In family law proceedings parties ordinarily bear their own costs, as is set out in s 117(1) of the Act. However, the court may make a costs order having regard to the circumstances set out in s 117(2) of the act which provides as follows:(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. The factors relevant to this application are set out in s 117(2A) which provides:(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:(a)the financial circumstances of each of the parties to the proceedings;(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and(g) such other matters as the court considers relevant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 2095 of 2014
Judgment of:	RIETHMULLER J
Date of judgment:	6 April 2022
Catchwords:	FAMILY LAW – Costs – Lump sum order made on party and party basis – No matters of principle.
Legislation:	Family Law Act 1975 (Cth) ss 79A, 117(1), 117(2), 117(2A)(d)
Cases cited:	Field & Kingston [2021] FedCFamC1F 353 Field & Kingston [2021] FedCFamC1A 66 Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23
Division:	Division 1 First Instance
Number of paragraphs:	28
Date of last submission/s:	9 February 2022
Place:	Parramatta
Solicitor for the Applicant:	Matthews Folbigg Lawyers
Solicitor for the Respondent:	Cathers Beavers & Kamiya Lawyers

PAC 2095 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FIELD Applicant
AND:	MR KINGSTON Respondent

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	6 APRIL 2022