Gillen & Lindo (No 4) - [2023] FedCFamC1F 384

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gillen & Lindo (No 4) [2023] FedCFamC1F 384

File number(s): CAC 2594 of 2019

Judgment of: GILL J

Date of judgment: 17 May 2023

Catchwords: FAMILY LAW - COSTS – parenting proceedings – caution before making costs order in contested parenting proceedings – where a party is wholly unsuccessful – where the father placed into contest pivotal factual issues – where those matters were proven against the father – where the father was successful in relation to some factual contests – costs awarded – claim for indemnity costs – insufficient to establish matter as extreme as to justify indemnity costs

Legislation:
Family Law Act 1975 (Cth) ss - 60B, 60CC, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) - r 12.13

Cases cited:
Colgate Palmolive Co and Another v Cussons Pty Ltd

Hawkins & Roe [2012] 47 FamLR 526

I & I (1995) FLC 92-625

In the Marriage of W P J Munday and H J Bowman (1997) 22 Fam LR 321

Kohan & Kohan (1993) FLC 92-340

McDonald & McDonald (1994) FLC 92-508

Quickley & Pelissier [2016] FamCAFC 124

Division: Division 1 First Instance

Number of paragraphs: 39

Date of last submission/s: 7 February 2023

Date of hearing: Heard in Chambers

Place: Canberra

Solicitor for the Applicant: Ms Riley, Parker Coles Curtis

Solicitor for the Respondent: Mr Minshall, GA Lawyers

Solicitor for the Independent Children's Lawyer: Ms Cruise, Legal Aid, ACT
ORDERS

CAC 2594 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GILLEN

Applicant

AND:
MS LINDO

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

GILL J

DATE OF ORDER:

17 MAY 2023

THE COURT ORDERS THAT:
1.The father shall pay to the mother costs in relation to the hearing of the proceedings conducted on 12-15 December 2022 as agreed or as assessed.

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 Gillen & Lindo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J

Following a contested hearing as to parenting in relation to the parties’ child the mother seeks that the father pay her costs, initially on an indemnity basis, or otherwise on a party-party basis.
The father opposes an order that he pay the mother’s costs.
Material…

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 Gillen & Lindo (No 4)

Details

AGLC: Gillen & Lindo (No 4) [2023] FedCFamC1F 384
Case: [2023] FedCFamC1F 384
Decision Date

CaseChat Overview and Summary

The case of Gillen & Lindo (No 4) involved the parents of a child, where the father sought to challenge the mother's custody and care arrangement. The court was tasked with resolving the dispute and determining the appropriate basis for costs. This case reached the Family Court of Australia, which was responsible for making decisions on the matter at hand.

The legal issues central to this case included the determination of the appropriate basis for costs and the assessment of whether the circumstances warranted indemnity costs. The father argued that the mother's conduct during the proceedings was so egregious that it warranted an order for indemnity costs. In contrast, the mother contended that the costs should be paid in the usual form, as neither party had acted unreasonably or vexatiously. The court was required to weigh the arguments from both parties and decide on the most appropriate course of action.

The Family Court found that the circumstances did not reach the level of extremity necessary to justify an order for indemnity costs. Both parties had unsuccessfully pursued certain factual conclusions from the court, but the father's lack of success in his case and his pursuit of findings in relation to a pivotal factual matter did not warrant indemnity costs. The court determined that costs in the usual form were appropriate in this situation. Therefore, the father was ordered to pay costs as agreed or as assessed.

The court's decision in Gillen & Lindo (No 4) highlights the importance of carefully considering the circumstances of each case when determining the appropriate basis for costs in family law disputes. The court's ruling in this case serves as a reminder that indemnity costs are only warranted in situations of extreme misconduct, and that costs in the usual form are more commonly appropriate.

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 second key issue is the basis on which the costs should be paid. The circumstances are not, however, such that fall into the description of extreme that is necessary to justify an order for indemnity costs. Each party unsuccessfully pursued factual conclusions from the court, and whilst the father was unsuccessful in his case and in his pursuit of findings in relation to a pivotal factual matter, this is not here sufficient to warrant indemnity costs as opposed to costs in the usual form.CONCLUSION Orders will be made for the father to pay costs as agreed or as assessed.

Ratio Decidendi

Legal Principle Established

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File number(s):	CAC 2594 of 2019
Judgment of:	GILL J
Date of judgment:	17 May 2023
Catchwords:	FAMILY LAW - COSTS – parenting proceedings – caution before making costs order in contested parenting proceedings – where a party is wholly unsuccessful – where the father placed into contest pivotal factual issues – where those matters were proven against the father – where the father was successful in relation to some factual contests – costs awarded – claim for indemnity costs – insufficient to establish matter as extreme as to justify indemnity costs
Legislation:	Family Law Act 1975 (Cth) ss - 60B, 60CC, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) - r 12.13
Cases cited:	Colgate Palmolive Co and Another v Cussons Pty Ltd Hawkins & Roe [2012] 47 FamLR 526 I & I (1995) FLC 92-625 In the Marriage of W P J Munday and H J Bowman (1997) 22 Fam LR 321 Kohan & Kohan (1993) FLC 92-340 McDonald & McDonald (1994) FLC 92-508 Quickley & Pelissier [2016] FamCAFC 124
Division:	Division 1 First Instance
Number of paragraphs:	39
Date of last submission/s:	7 February 2023
Date of hearing:	Heard in Chambers
Place:	Canberra
Solicitor for the Applicant:	Ms Riley, Parker Coles Curtis
Solicitor for the Respondent:	Mr Minshall, GA Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Cruise, Legal Aid, ACT

CAC 2594 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GILLEN Applicant
AND:	MS LINDO Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	GILL J
DATE OF ORDER:	17 MAY 2023