Imani & Etola (No 2)

Case [2024] FedCFamC1F 380

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Imani & Etola (No 2) [2024] FedCFamC1F 380

File number: MLC 4188 of 2015
Judgment of: STRUM J
Date of judgment: 4 June 2024
Catchwords: FAMILY LAW – COSTS – Where the husband has been wholly unsuccessful – Where the husband’s applications were held to be an abuse of process—Where the husband’s applications were held to be a waste of the Court’s and the wife’s time—Where there are circumstances that justify an order for costs in favour of the wife  
Legislation:

Evidence Act (Cth) ss 128,128(5)

Family Law Act 1975 (Cth) ss 102QAB(6), 117, 117(2), 117(2A), 117AA, 117AC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09(1)(c)
Cases cited:

Carson v Turner [2019] VSC 427 [67]

Imani & Etola [2023] FedCFamC1F 905

LGM & CAM [2011] FamCAFC 195 [171]

PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

Penfold v Penfold (1980) 144 CLR 311.
Division: Division 1 First Instance
Number of paragraphs: 31
Date of last submissions: 26 January 2024
Date of hearing: Hearing on the papers
Place: Melbourne
Counsel for the Applicant: Ms Lane
Solicitor for the Respondent: Alexis Bebbington, Bebbington Lawyers

ORDERS

MLC 4188 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS IMANI

Applicant
AND:

MR ETOLA

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

4 JUNE 2024

THE COURT ORDERS THAT:

1.The Respondent pay the Applicant’s costs in the fixed sum of $6,530, being the costs of and incidental to:

(a)The Respondent’s Application in a Proceeding filed on 11 July 2023; and

(b)The Respondent’s Application in a Proceeding filed on 14 September 2023; and

(c)The Respondent’s Application for Review filed on 15 September 2023 (as amended on 20 October 2023; and

(d)The Applicant’s Application in a Proceeding filed on 22 November 2023.

2.The Applicant’s Application in a Proceeding filed on 22 November 2023 and the Respondent’s Response to an Application in a Proceeding filed 28 December 2023 be otherwise 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 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 Imany & Etola has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

STRUM J:

  1. By Application in a Proceeding filed on 22 November 2023 the…

Continue reading Imani & Etola (No 2)

Sign in free to access the full text

Details
AGLC
Imani & Etola (No 2) [2024] FedCFamC1F 380
Case
[2024] FedCFamC1F 380
Decision Date

CaseChat Overview and Summary

The case of Imani & Etola (No 2) involved proceedings between Ms Imani and Mr Etola. The dispute centred on a series of applications filed by Mr Etola, including two applications in a proceeding and an application for review, which were subsequently dismissed. Ms Imani sought costs from Mr Etola, arguing that his applications were an abuse of process and a waste of the court's and her time. The court was tasked with determining whether the circumstances justified an order for costs in favour of Ms Imani.

The primary legal issue was whether the husband's unsuccessful applications warranted an order for costs against him. The court considered the nature of the husband's applications, his failure to appear and prosecute his application for review, and the waste of court resources. The court also assessed the written submissions filed by the husband in response to the wife's costs application, finding them largely unintelligible and unhelpful.

The court concluded that there were circumstances justifying an order for costs in favour of Ms Imani. The husband had been wholly unsuccessful in his applications, and his actions were deemed an abuse of process. The court found that the husband's applications were a waste of the court's and Ms Imani's time. Consequently, the court ordered Mr Etola to pay Ms Imani's costs in the fixed sum of $6,530, reflecting the fees she incurred in obtaining legal advice and deciding not to participate in proceedings that were likely to fail.

The final orders of the court mandated that Mr Etola pay Ms Imani's costs of $6,530, which covered the costs of and incidental to the various applications filed by Mr Etola. Additionally, Ms Imani's application in a proceeding and Mr Etola's response to an application in a proceeding were dismissed. This decision underscored the importance of the judicious use of court resources and the consequences of abusing the court process.

Orders

Orders of the court

MLC 4188 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS IMANI

Applicant

AND:

MR ETOLA

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

4 JUNE 2024

THE COURT ORDERS THAT:

1. The Respondent pay the Applicant’s costs in the fixed sum of $6,530, being the costs of and incidental to:

(a) The Respondent’s Application in a Proceeding filed on 11 July 2023; and

(b) The Respondent’s Application in a Proceeding filed on 14 September 2023; and

(c) The Respondent’s Application for Review filed on 15 September 2023 (as amended on 20 October 2023; and

(d) The Applicant’s Application in a Proceeding filed on 22 November 2023.

2. The Applicant’s Application in a Proceeding filed on 22 November 2023 and the Respondent’s Response to an Application in a Proceeding filed 28 December 2023 be otherwise 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 proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons which follow, I shall order that the husband pay the wife’s costs fixed in the sum of $6,530, as sought by her.BACKGROUND Final parenting orders were made in proceedings between the parties on 1 February 2018. Between 2018 and 2021, various orders were made allowing documents to be released and used in professional disciplinary and regulatory proceedings in relation to the husband. In relation to the two Applications in a Proceeding filed on 11 July 2023 and 14 September 2023 by the husband, in his reasons for judgment, Austin J describes them as “seeking swathes of orders” (at [8]). On 15 September 2023, a Senior Judicial Registrar referred discrete parts of the second Application in a Proceeding to me, to be heard on 1 December 2023, which hearing date was subsequently vacated and brought forward to 27 November 2023. The Senior Judicial Registrar otherwise dismissed the balance of the father’s Applications. On 15 September 2023, the husband filed an Application for Review of the Senior Judicial Registrar’s orders, which he subsequently amended on 20 October 2023 (“Review Application”). That application was heard by Austin J on 23 October 2023, conducted electronically. At [12] of his reasons for judgment, Austin J said:There was no appearance by the applicant father at the hearing. He connected to the Microsoft Teams environment before 9.30 am using the connection details supplied, but then disconnected shortly before the hearing commenced. Nor was there any appearance by the mother. Austin J dismissed the Review Application, as well as the remaining extant aspects of the husband’s Applications that were adjourned for hearing before me, and he vacated that hearing. Austin J said:21The review application is dismissed for lack of merit, rather than because of the father’s failure to appear and prosecute it.…32The review application is plainly an abuse of process. It and the interlocutory applications which preceded it should be summarily dismissed pursuant to r 10.09(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which means the listing before the other judge on 27 November 2023 may also now be vacated. The wife filed her Costs Application on 18 November 2023, together with a supporting affidavit. The matter was listed for mention before me on 12 December 2023 and I made orders requiring the husband to file a Response to an Application in a Proceeding, as well as for each party to file any written submissions and thereafter for the mother’s Costs Application to be determined on the papers in chambers. The husband did not appear at the hearing that day. On 28 December 2023, the husband filed a Response and supporting affidavit opposing the wife’s Costs Application. Pursuant to the orders made by me on 12 December 2023, the wife filed written submissions on 5 January 2024. The husband filed two written submissions on 19 January 2024; the first spanning 55 pages and the second spanning 116 pages. The husband’s first submissions address the wife’s Costs Application, in the first six pages, and thereafter attach various transcripts, judgments and emails spanning the proceedings. The husband’s second submissions, filed without leave, are titled “SECOND SUBMISSION OF [sic] BEHALF OF RESPONDENT AS TO COSTS TO EXPLAIN HIS REQUEST FOR FILES”. At paragraph 2 of those submissions, the husband states: “This is to highlight the reason why I requested the files that I did as they formed the basis of errors in common law” [sic]. The husband appears to have mistaken the opportunity to file submissions in relation to the wife’s Costs Application as an opportunity to raise swathes of the errors he perceives were made in the course of the proceedings, which commenced in 2015. The second submissions do not address Costs Application; are largely unintelligible; are akin to wading through treacle; and are of no assistance to the Court. Accordingly, although I have read them, I do not take them into consideration when determining the wife’s Costs Application. Indeed, even his first submissions, which purport to address the wife’s Costs Application, are largely unintelligible and unhelpful, and do not address the relevant law and authorities in relation to orders for costs in this Court and the application thereof to the circumstances in this case.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is clear from Austin J’s judgment that the husband has been wholly unsuccessful in his Applications in a Proceeding, as well as his Review Application.CONCLUSION In the circumstances, and for the reasons above, I find that there are circumstances that well justify the Court making an order for costs. The wife seeks costs in a fixed sum, relying upon invoices attached to her written submissions as “Schedule A”. She submits that, although she did not file documents or participate in the hearing before Austin J, she incurred fees in obtaining legal advice and, at paragraph 8 of her submissions in reply, she submits that having been served with the husband’s Applications, she was entitled to do so. She submits that she obtained such advice and decided not to participate in proceedings “which were doomed to fail”. That was insightful, if not prophetic. Hence, the quantum sought in her Costs Application is lower than otherwise would have been the case. I agree. Accordingly, I will order that the husband pay the wife’s costs fixed in the sum of $6,530, as set out in Schedule A of her written submissions. The balance of the orders sought by the husband in his Response have no merit and his Response will be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.