Haykal and Krawiec (No 4) - [2012] FamCA 748

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC (NO. 4)

[2012] FamCA 748

FAMILY LAW – COSTS – where the mother seeks an order that the father pay her costs on an indemnity basis – where final parenting orders had previously been made in the Federal Magistrates Court – where the father subsequently sought alternate parenting orders – where the matters agitated by the father before this Court were almost identical to those agitated in the Federal Magistrates Court – where the mother contends that the father’s conduct borders on “vexatious” – whether an order for costs should be made pursuant to s 117, Family Law Act 1975 (Cth) – where the father has filed numerous applications, affidavits and subpoenae – where an order made that the father pay the mother’s costs on an indemnity basis.

Family Law Act 1975 (Cth)

Family Law Rules 2004

Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248
Latoudis v Casey (1990) 170 CLR 534
Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123
Penfold v Penfold (1979 – 1980) 144 CLR 311
Rice v Asplund (1979) FLC 90-725
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Krawiec

RESPONDENT:

Mr Haykal

FILE NUMBER:

SYC

731

2009

DATE DELIVERED:

31 August 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Chambers

JUDGMENT OF:

Murphy J

HEARING DATE:

By way of written submissions:

Mother on 1 June 2012
Father on 27 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

SOLICITOR FOR THE RESPONDENT:

Johnston Vaughan Solicitors (Parenting) AND Paul & Paul Lawyers (Financial)

Orders

IT IS ORDERED THAT

Pursuant to s 117 of the Family Law Act 1975 (Cth) the father pay the mother’s costs on an indemnity basis, assessed in accordance with the costs agreement entered into between the mother and her solicitors annexed to the written submissions of the mother filed 1 June 2012 in a total amount to be agreed between the parties in writing or, failing agreement within 14 days of the date of these orders, as assessed.
In the event that agreement is not reached in respect of the amount of the costs payable pursuant to paragraph one (1) of these orders within the timeframe specified therein, and the mother’s indemnity costs are assessed as equal to or exceeding $69,202.02, the father shall, in addition, pay the mother’s costs of assessment on an indemnity basis.
The costs payable pursuant to paragraph one (1) of these orders should be paid within 21 days of the date of this order if the amount of costs is agreed, or within five (5) working days of the date of assessment as the case may be.
In the event that the costs payable pursuant to paragraph one (1) of these orders are required to be assessed, interest at the rate prescribed from time to time by the Family Law Rules 2004, shall be…

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.

Keep reading for free

Create a free CaseChat account to read Haykal and Krawiec (No 4) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FamCA 748
Decision Date

CaseChat Overview and Summary

In *Haykal and Krawiec (No 4)*, the Family Court of Australia considered an application by the mother for an order that the father pay her costs on an indemnity basis. This application arose following final parenting orders made in the Federal Magistrates Court, after which the father sought alternate parenting orders. The mother contended that the matters agitated by the father before the Family Court were substantially the same as those previously determined and that his conduct bordered on vexatious.

The central legal issue before the Court was whether the circumstances justified an order for costs pursuant to section 117 of the *Family Law Act 1975* (Cth), and specifically, whether those costs should be awarded on an indemnity basis. The Court was required to consider the father's conduct throughout the proceedings, including the numerous applications, affidavits, and subpoenas he had filed, in light of the statutory factors outlined in section 117(2A) of the Act and relevant case law concerning indemnity costs.

The Court reasoned that an award of indemnity costs could be justified by circumstances such as the making of allegations that ought not to have been made or the undue prolongation of a case by groundless contentions, as per *Colgate-Palmolive Co & Anor v Cussons Pty Ltd*. It noted that the categories for such an award were not closed and that the Court needed to be satisfied that particular facts and circumstances warranted costs other than on a party-party basis. The Court found that the father had been wholly unsuccessful in his application, which sought to re-agitate issues already determined by the Federal Magistrate. The father's conduct, including the filing of numerous documents and attempts to re-open previously decided matters with little apparent change in circumstances, was considered to border on vexatious. The Court also noted the father's failure to engage with expert reports and previous judicial findings.

Consequently, the Court ordered that the father pay the mother's costs on an indemnity basis. These costs were to be assessed in accordance with the mother's costs agreement, to be agreed between the parties within 14 days or otherwise assessed. The order also stipulated payment timelines and provided for the payment of costs of assessment and interest if applicable. Furthermore, the Court certified that it was reasonable for the mother to have engaged senior counsel.

Orders