Griffiths & Griffiths (No 2) - [2022] FedCFamC1F 379

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Griffiths & Griffiths (No 2) [2022] FedCFamC1F 379

File number(s): PAC 3392 of 2020

Judgment of: WILSON J

Date of judgment: 27 May 2022

Catchwords: FAMILY LAW – NATIONAL ARBITRATION LIST – COSTS – applicant’s application for indemnity costs – costs to be paid pursuant to s 117(1) of the Family Law Act and not otherwise.

Legislation: Family Law Act 1975 ss 117(1), 117(2A).

Cases cited:
Agosti & Agosti [2021] FedCFamC1F 72

Fitzgerald v Fish (2005) 33 Fam LR 12

Griffiths & Griffiths [2022] FedCFamC1F 219

In the Marriage of Hogan (1986) 10 Fam LR 681

Division: Division 1 First Instance

Number of paragraphs: 21

Date of last submissions: 14 March 2022

Date of hearing: 6 May 2022

Place: Melbourne

Solicitor for the Applicant: John Hall Lawyers

Solicitor for the Respondent: Watts McCray (NSW) Pty Ltd
ORDERS

PAC 3392 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GRIFFITHS

Applicant

AND:
MS GRIFFITHS

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

27 MAY 2022

THE COURT ORDERS THAT:
1.Pursuant to s 117(1) of the Family Law Act each party must bear his and her own costs of the proceeding, the arbitration and this costs application.

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 Griffiths & Griffiths is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION

These reasons address –
(a)the husband’s application for the wife to pay his costs and disbursements assessed on an indemnity basis from 24 February 2020 to 3 December 2021 in the sum of $139,418.95;
(b)the husband’s application for the wife to pay his costs on this costs application; and
(c)the wife’s application for the dismissal of all of the husband’s costs applications.
The wife requested all questions of costs to be deferred until the determination of the wife’s application to review the arbitral award.
On 6 May 2022 I handed down judgment on the wife’s review application, dismissing it and all grounds of review.[1]
[1]Griffiths & Griffiths [2022] FedCFamC1F 219.
In essence, in support of the husband’s indemnity costs application he contended that –
(a)the wife had conducted her case in this proceeding is such manner as to warrant the imposition of a costs order…

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 Griffiths & Griffiths (No 2)

Details

AGLC: Griffiths & Griffiths (No 2) [2022] FedCFamC1F 379
Case: [2022] FedCFamC1F 379
Decision Date

CaseChat Overview and Summary

The matter of Griffiths & Griffiths (No 2) was heard by Wilson J in the Federal Circuit and Family Court of Australia (Division 1). The case concerned the husband’s application for indemnity costs against the wife, which he claimed were due to the wife’s unreasonable conduct in rejecting a settlement offer and her conduct during the litigation process. The wife sought to have the husband’s costs applications dismissed. The court had to determine whether the husband was entitled to indemnity costs based on the wife’s conduct and her refusal to accept a settlement offer.

In considering the application, the court examined the husband’s submissions regarding the wife’s alleged non-compliance with orders and her refusal to accept a settlement offer dated 24 February 2020. The husband argued that the wife’s conduct warranted indemnity costs, as the offer would have resulted in a more favourable outcome for her than the arbitral award. However, the wife disputed the husband’s characterization of the offer and argued that she could not assess its fairness due to the husband’s lack of proper disclosure. The court noted that the wife’s conduct did not deviate from the principle in s 117(1) of the Family Law Act, and the proposal did not clearly indicate that indemnity costs would be sought if it was not accepted. The court found that the wife’s approach to the husband’s offer was not unreasonable.

The court concluded that an indemnity costs order would not be just and ordered that each party bear their own costs of the proceeding, including the arbitration and the costs application, pursuant to s 117(1) of the Family Law Act. The court emphasized the need for any cost order under s 117(2) to be just and found that the wife’s conduct did not warrant such an order.

Orders