Gadiot & Palko
[2024] FedCFamC1F 121
•1 March 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Gadiot & Palko [2024] FedCFamC1F 121
File number(s): BRC 6460 of 2019 Judgment of: HOGAN J Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – JURISDICTION – Where the husband commenced proceedings for final property orders in Australia – Where the wife commenced proceedings for final property orders in Country C – Where the wife seeks anti-suit injunction relief – Where the husband seeks to stay these proceedings – Where orders were made by consent that the application for a stay of these proceedings made by the husband is dismissed – Where the parties are restrained from taking further action in the property proceedings in the City D Court.
FAMILY LAW – COSTS –Where there was ample opportunity for the husband to consider his position prior to the morning of the interim hearing – Where the husband has been wholly unsuccessful – Where the husband pay the wife’s costs in the amount of $20,000 within 30 days of final orders being made or the proceedings otherwise being resolved by agreement
Legislation: Family Law Act 1975 (Cth) s 117 Division: First Instance Number of paragraphs: 23 Date of hearing: 1 March 2024 Place: Brisbane Counsel for the Applicant: Ms Oakley Solicitor for the Applicant: Evans Brandon Family Lawyers Counsel for the Respondent: Mr Shaw Solicitor for the Respondent: CJM Lawyers Pty Ltd ORDERS
BRC 6460 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PALKO
Applicant
AND: MR GADIOT
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
1 MARCH 2024
THE COURT ORDERS THAT:
1.Paragraphs 2, 3, 4 and 5 inclusive of the relief sought in the Application in a Proceeding filed 26 September 2023 and sealed 27 September 2023 are adjourned to the final hearing of this matter.
AND IT IS FURTHER ORDERED BY CONSENT THAT:
2.The application for a stay of these proceedings sought in the Response to an Application in a Proceeding filed 6 October 2023 is dismissed.
AND IT IS FURTHER ORDERED THAT:
3.The husband and wife be and are hereby restrained from taking any further steps in the proceedings between the parties conducted in the City D Court, Country C or bringing proceedings in any other Court concerning the property of the parties other than to seek that the case be discontinued and/or dismissed without further Order of the Federal Circuit and Family Court of Australia (Division 1).
4.The purposes of Order 3 above, the husband shall forthwith do all acts and things as are necessary, including signing all such documents, to discontinue and/or consent to the dismissal of the proceedings referred to in Order 3 of this Order.
5.In the event that the husband has not, within seven (7) days of the date of this Order, done an act or signed a document required to be done or signed, as the case may be, to give effect to Orders 3 and 4 hereof, a Registrar of this Court is empowered to sign such a document or do an act in the name of the husband so as to give effect to Order 3 and 4 of this Order.
6.The wife is authorised to provide a copy of this Order to the City D Court and to each of the legal practitioners for the parties, in both English and in a format translated by a NAATI accredited translator.
AND IT IS FURTHER ORDERED THAT:
7.The husband pay the wife the sum of $20,000.00 by way of costs in relation to the Application in a Proceeding filed 26 September 2023 and sealed 27 September 2023 and the Response to the Application filed 6 October 2023, with such sum to be paid to the wife as she may direct in writing within 30 days of final orders being made in the proceedings or the proceedings otherwise being resolved by agreement as between the parties.
NOTATION
A.The parties agree to attend a mediation with the Honourable Mr E of King’s Counsel (or such other mediator as greed between the parties) within the next four (4) months.
B.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
C.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 Gadiot & Palko has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
The orders will be that, by consent, the Application for a stay contained in the Response to an Application in a Case filed 6 October 2023 be dismissed.
I intend to make an order restraining these parties from taking any further steps in the proceedings between them that are currently conducted in the Country C Court or bringing proceedings in any other Court concerning the property of the parties, other than to seek that the case be discontinued and/or dismissed, without further order of the Court.
So I make an order in terms, really, of paragraphs 3, 4, 5 and 6 of the Minute of Order provided by Ms Oakley. I do so for these reasons.
The parties are agreed that the proceedings that were commenced by the husband seeking orders for property settlement in 2019 should continue in this Court. Given that, it is clear from authority that the relief accorded by the making of an anti-suit injunction should be exercised to protect the integrity of the processes that have been set in motion by, as here, regularly instituted proceedings.
I am satisfied that failing to restrain the parties from continuing in the Country C proceedings would interfere with, or have a tendency to interfere with, or may, if they continue, interfere with, the proceedings that the parties are agreed they should prosecute in this Court.
So for those very short reasons, in the circumstances of this case and given the submissions made by Mr Shaw on behalf of the husband, I have determined it appropriate to make the orders in terms of paragraphs 3 through 6 of the Minute of Order provided by Ms Oakley, as I have said.
Wife’s application for an Order that the husband pay the wife costs in relation to the Application in a Proceeding filed 26 September 2023 and the Response to the Application in a Proceeding filed 6 October 2023
Ms Oakley of Counsel, who appears on behalf of the wife in the proceedings, applies for an order that the husband pay the wife $20,000 by way of costs in relation to the Application in a Proceeding filed 26 September 2023 and the Response to the Application in a Proceeding filed 6 October 2023, with such sum to be paid by him to the wife, as she may direct in writing, within 28 days.
The application for an order for costs is opposed by Mr Shaw, who appears on behalf of the husband today.
In summary, Ms Oakley submits on behalf of the wife, in essence, that: the wife has been successful in her application for an anti-suit injunction and the ancillary orders that have been made today; the husband has been wholly unsuccessful, in that his previously filed application seeking an order staying these proceedings was withdrawn (in the sense that he has agreed to an order being made that it be dismissed) his opposition to the making of anti-suit injunctions and associated orders was entirely unsuccessful. Those submissions address, of course, the statutory considerations which are found in the Family Law Act 1975 (Cth) (“the Act”) commencing at s 117(1), which provides that, subject to s 117(2) of the Act, each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject relevantly to subsection (2A) and the applicable Rules of Court, make such order as to costs and security for costs, whether by interlocutory order or otherwise, as the Court considers just.
The matters to which a Court must have regard in determining whether an order as to costs should be made are those matters prescribed in s 117(2A) of the Act. They are:
The financial circumstances of each of the parties to the proceedings – there is some relatively limited evidence before the Court about that issue at present.
Neither party is in receipt of assistance by way of Legal Aid.
A third consideration is the conduct of the parties to the proceedings generally and it is to this factor, in essence, that at least an aspect of Ms Oakley’s submissions were addressed – particularly the submission that the husband, properly advised, should have appreciated prior to this morning (particularly given the relief sought by the wife as set out in the Further Amended Response to Initiating Application filed 26 September 2023) that the orders she seeks on a final basis do not relate to property owned by him in Country C but are limited to the property of the parties in Australia.
I am not persuaded that the current application was necessitated by a failure of a party to comply with previous orders of the Court.
As I have said, Ms Oakley’s submission is, in essence, that the husband was wholly unsuccessful in the proceedings, given his determination to agree to the dismissal of his application for a stay of the proceedings and his unsuccessful opposition to the making of the anti-suit injunction and the orders associated with this that I have made.
There is no evidence in relation to the issue of offers in writing as to settlement.
Whilst I had initially been attracted to the idea that it would be appropriate and proper in the circumstances of the case to defer the consideration of the making of an order for costs to the trial (which is now listed before me in November), I have been persuaded by the submissions made by Ms Oakley on behalf of the wife that the more appropriate course is that I consider the application for costs today and resolve it.
Given the fact of the husband being wholly unsuccessful in his approach to the various applications that were before the Court today and taking into account the relief sought by the wife, as particularised in the Further Amended Response to Initiating Application filed on 26 September of last year, I am satisfied that the circumstances of this case justify the making of an order that the husband pay the wife’s costs in the amount of $20,000.
I arrive at this conclusion because I consider that, given the relief sought by the wife was made clear in late September of last year, there was ample opportunity for the husband to consider his position prior to this morning. Had he done so, the wife would not have been put to the costs associated with the appearance by Counsel today to argue matters which, if argued, may well have occupied every bit of the two hours allocated for interim hearings in this jurisdiction.
However, I am not persuaded, having regard to the existence of the evidence before me at this point about the parties’ financial circumstances, that it is just or appropriate that the husband be required to pay the sum of $20,000 to the wife by way of order for costs within 28 days of today.
Rather, I consider the appropriate order, and one that is just in the circumstances, is that the husband be required to pay that amount, by way of costs in relation to the Application in a Proceeding filed 26 September 2023 and the Response to the Application filed 6 October 2023, within 30 days of the making of a final order or other resolution of the current proceedings between the parties.
In that way, I have determined the costs to which the wife has been put but I have also afforded the husband the opportunity to make that payment within 30 days of final orders being made – particularly noting that the matter is listed for final hearing before me in the week commencing 11 November of this year.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 1 March 2024
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