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.
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- Case
- [2023] FedCFamC1F 384
- Decision Date
CaseChat Overview and Summary
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.
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