Garwood & Shipton (No 11) - [2024] FedCFamC1F 623

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garwood & Shipton (No 11) [2024] FedCFamC1F 623

File number(s): ADC 4995 of 2018

Judgment of: KARI J

Date of judgment: 17 September 2024

Catchwords: FAMILY LAW – COSTS – Where the Respondent sought the primary judge be disqualified from hearing the proceedings – Where the Respondent had made three unsuccessful attempts to disqualify the primary judge – Where only the disqualification application to which the present costs application relates has proceeded to argument and judgment – Application for an indemnity costs order in relation to both the disqualification application and the costs application – Where offers were exchanged in attempt to resolve the costs application – Where the court considers there to be justifying circumstances for the making of a costs order in relation to both the disqualification application and the costs application – Where the Court is not satisfied that the all of the costs incurred were reasonable and/or proportionate – Where the Court declines to make an order for indemnity costs – Costs ordered fixed in the amount of $16,000.

Legislation:
Family Law Act 1975 (Cth) s 117

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

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

Garwood & Shipton (No 7) [2023] FedCFamC1F 935

Garwood & Shipton (No 9) [2024] FedCFamC1F 350 Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664

Kohan & Kohan (1993) FLC 92-340

Munday & Bowman (1997) FLC 92-784

Shipton & Garwood (2024) FLC 94-189

Division: Division 1 First Instance

Number of paragraphs: 34

Date of last submission/s: 16 August 2024

Date of hearing: In chambers on the papers

Place: Darwin

Solicitor for the Applicant: Mills Oakley

Solicitor for the Respondent: Angela Ferdinandy Pty Ltd
ORDERS

ADC 4995 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GARWOOD

Applicant

AND:
MS SHIPTON

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

17 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.That within sixty (60) days the Respondent do pay the Applicant’s costs fixed in the amount of SIXTEEN THOUSAND DOLLARS ($16,000) apportioned as follows:
(a)ELEVEN THOUSAND DOLLARS ($11,000) for the disqualification application; and
(b)FIVE THOUSAND DOLLARS ($5,000) for the costs of the cost application.

2.That the Application in a Proceeding filed 25 June 2024, and the Response filed 31 July 2024 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).
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…

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.

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Details

Case: [2024] FedCFamC1F 623
Decision Date: 17 September 2024

CaseChat Overview and Summary

The case Garwood & Shipton (No 11) involves protracted family law proceedings between Mr Garwood and Ms Shipton, focusing on parenting arrangements for their child born in 2018 and whether the parties were in a de facto relationship. The proceedings have been ongoing, with the final hearing part-heard and set to resume on 18 November 2024. In January 2024, Ms Shipton filed an unsuccessful application for the primary judge's disqualification and for a mistrial declaration. Following the dismissal of this application, Mr Garwood applied for indemnity costs related to the disqualification application and the costs application itself.

The central legal issues before the court were whether there were justifying circumstances for an indemnity costs order and whether all of the costs incurred were reasonable and proportionate. The court was required to consider the nature of the disqualification application, the efforts made to resolve the costs application through offers exchanged between the parties, and the reasonableness of the costs claimed.

The court found that justifying circumstances existed for making a costs order in relation to both the disqualification application and the costs application, as the disqualification application was both unreasonable and vexatious. However, the court was not satisfied that all of the costs incurred were reasonable and proportionate. Consequently, the court declined to make an order for indemnity costs but instead ordered fixed costs of $16,000 to be paid by Ms Shipton within 60 days, apportioned between the disqualification application and the costs application. The court dismissed both the costs application and the response filed by Ms Shipton.

The final orders of the court were that Ms Shipton must pay Mr Garwood's costs in the amount of $16,000 within 60 days, with $11,000 for the disqualification application and $5,000 for the costs of the costs application. Both the costs application and the response were dismissed.

Orders

Orders of the court

ADC 4995 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GARWOOD

Applicant

AND:

MS SHIPTON

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

17 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. That within sixty (60) days the Respondent do pay the Applicant’s costs fixed in the amount of SIXTEEN THOUSAND DOLLARS ($16,000) apportioned as follows:

(a) ELEVEN THOUSAND DOLLARS ($11,000) for the disqualification application; and

(b) FIVE THOUSAND DOLLARS ($5,000) for the costs of the cost application.

2. That the Application in a Proceeding filed 25 June 2024, and the Response filed 31 July 2024 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).

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

For the reasons that follow, a costs order in a fixed amount shall be made in relation to both the disqualification application and the costs of the costs application.BACKGROUND These proceedings have a lengthy history which is not relevant for present purposes, particularly given the narrow focus of the application for costs that has been made. Relevantly, the application for costs has been made against the following background:(a)The parties are currently engaged in protracted litigation regarding the parenting arrangements for their child X born in 2018, in addition to the threshold jurisdiction question of whether the parties were in a de facto relationship.(b)The final hearing is part heard, with a trial having commenced on 5 September 2022 and proceeding for 12 days.(c)The final hearing is set to resume on 18 November 2024 with an additional 15 sitting days allocated.(d)There are a number of reasons that the final hearing has become protracted, which are not germane to the present dispute.(e)Relevantly, however, on 31 January 2024 the Respondent filed an Application in a Proceeding seeking that I disqualify myself (“the disqualification application”). In addition to the order that I be disqualified, an order was also sought that a “mistrial” be declared.(f)The disqualification application was filed shortly prior to the re-commencement of the part heard final hearing, which was then listed to resume on 5 February 2024.(g)The disqualification application was heard on what would have been the first day of resumed part heard trial on 5 February 2024. Given the nature of the application and it going to the heart of the integrity of the trial process it was dealt with in priority, with the court hearing argument and reserving its decision.(h)The disqualification was dismissed by orders made 27 May 2024 (Garwood & Shipton (No 9) [2024] FedCFamC1F 350). By Application in a Proceeding filed on 25 June 2024 (“the costs application”), which was accompanied by an affidavit of the Applicant, the Applicant sought costs in relation to the disqualification application in the following terms:1.That the Respondent mother pay the Applicant father’s costs on an indemnity basis for costs incurred as a result of the Application made by her that the Honourable Justice Kari be disqualified and a resulting Order that there be a declaration of a Mistrial. Orders were made in chambers on 26 June 2024, which provided for:(a)The costs application to be dealt with on the papers in chambers;(b)The Respondent to file any responding material by 31 July 2024; and(c)The parties to file written submissions, limited to 5 pages, by 16 August 2024. The Respondent filed a Response and an Affidavit in support on 31 July 2024. The orders sought in the Response were:1.That [Mr Garwood]’s Application for Costs filed 25 June 2024 be dismissed in its entirety and that there be no orders as to costs and, in the alternative if the court considers that an order for costs is warranted:(a)that the costs be assessed on a party and party basis by way of an assessment of costs pursuant to Rule 12.17(1)(d) of the Federal circuit and Family Court Rules; or(b)in the event costs are quantified that such costs be payable upon the conclusion of the matter at which time the various applications and cross applications for costs can be set off against each other; and(c)in any event that any order for costs against [Ms Shipton] be payable within thirty (30) days of the making of final orders in these proceedings and upon the determination of all costs applications and cross applications.2. That [Mr Garwood] pay [Ms Shipton]’s costs of and incidental to this Application.(As per the original)

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):	ADC 4995 of 2018
Judgment of:	KARI J
Date of judgment:	17 September 2024
Catchwords:	FAMILY LAW – COSTS – Where the Respondent sought the primary judge be disqualified from hearing the proceedings – Where the Respondent had made three unsuccessful attempts to disqualify the primary judge – Where only the disqualification application to which the present costs application relates has proceeded to argument and judgment – Application for an indemnity costs order in relation to both the disqualification application and the costs application – Where offers were exchanged in attempt to resolve the costs application – Where the court considers there to be justifying circumstances for the making of a costs order in relation to both the disqualification application and the costs application – Where the Court is not satisfied that the all of the costs incurred were reasonable and/or proportionate – Where the Court declines to make an order for indemnity costs – Costs ordered fixed in the amount of $16,000.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:	Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Garwood & Shipton (No 7) [2023] FedCFamC1F 935 Garwood & Shipton (No 9) [2024] FedCFamC1F 350 Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 Kohan & Kohan (1993) FLC 92-340 Munday & Bowman (1997) FLC 92-784 Shipton & Garwood (2024) FLC 94-189
Division:	Division 1 First Instance
Number of paragraphs:	34
Date of last submission/s:	16 August 2024
Date of hearing:	In chambers on the papers
Place:	Darwin
Solicitor for the Applicant:	Mills Oakley
Solicitor for the Respondent:	Angela Ferdinandy Pty Ltd

ADC 4995 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GARWOOD Applicant
AND:	MS SHIPTON Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	17 SEPTEMBER 2024