JAROS & CALDEN (No.2) - [2020] FCCA 2059

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAROS & CALDEN (No.2)

[2020] FCCA 2059

Catchwords:
FAMILY LAW – Costs – where father withheld the children contrary to orders – where father made allegations not reasonably capable of belief – where mother compelled to make application for recovery – where father wholly unsuccessful in opposing mother’s application – where father opposes costs – where application for indemnity costs – exceptional circumstances – order made for indemnity costs on recovery application.

Legislation:

Family Law Act 1975 (Cth), ss.117(1) & (2) & 117(2A)

Federal Circuit Court Rules 2001 (Cth), Part 1, Schedule 1

Cases cited:

Penfold v Penfold (1980) 144 CLR 311

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158
Brown v Brown [1998] FLC 92-822
In the Marriage of Kohan (1992) 112 FLR 151
Muldoon & Carlyle [2012] FLC 93-513
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600
R v Kelly [2000] 1 QB 198
Yunghanns v Rentiers Machinery Pty Ltd (2000) FLC 93-029
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
D & D (Costs) (No.2) [2010] FamCAFC 64
Jaros & Calden [2019] FCCA 1221

Applicant:

MS JAROS

Respondent:

MR CALDEN

File Number:

ADC 1152 of 2018

Judgment of:

Judge Heffernan

Hearing dates:

8 April 2019, 1 August 2019 & 5 August 2019

Date of Last Submission:

4 December 2019

Reserved from chambers:

20 January 2020

Delivered at:

Adelaide

Delivered on:

28 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms M Dickson

Solicitors for the Applicant:

Resolve Divorce Lawyers

Counsel for the Respondent:

Ms Read & Mr Boehm

Solicitors for the Respondent:

Adelaide Hills Legal, & from 6 November 2019, Jacqui Ion Lawyers Pty Ltd

ORDERS

The father is to pay the costs of the mother for the Application in a Case filed 26 March 2019 on an indemnity basis in the amount of SEVEN THOUSAND AND EIGHTY THREE DOLLARS ($7,083.00).
The father is to pay the costs of the mother on the costs application on a party/party basis in accordance with Part 1 of the Schedule of the Federal Circuit Court Rules 2001 (Cth) including an advocacy loading.
All extant applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym is Jaros & Calden (No.2) approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1152 of 2018

MS JAROS

Applicant

And

MR CALDEN

Respondent

REASONS FOR JUDGMENT

This is the applicant mother’s claim for costs of and incidental to an Application in a Case filed on 26 March 2019 and the Response filed by the father on 29 March 2019. The mother seeks costs be paid on an indemnity basis or in the alternative on a party/party basis. The father opposes the costs order being made. I heard the mother’s Application in a Case on 4 April 2019. It was an application for delivery up or in default of…

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.

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Details

Case: [2020] FCCA 2059
Decision Date: 28 July 2020

CaseChat Overview and Summary

In the matter of JAROS & CALDEN (No.2), Judge Heffernan of the Federal Circuit Court of Australia considered an application for costs made by the mother against the father. The dispute arose from the father's alleged withholding of the children contrary to court orders and his making of allegations that were not reasonably capable of belief, which compelled the mother to make an application for recovery. The father was wholly unsuccessful in opposing the mother's recovery application and subsequently opposed the mother's application for indemnity costs.

The central legal issue before the court was whether exceptional circumstances existed to warrant an order for indemnity costs in favour of the mother. This required the court to assess the conduct of the father in the proceedings, particularly in relation to his withholding of the children and the nature of the allegations he advanced.

Judge Heffernan reasoned that the father's conduct in withholding the children contrary to court orders and his pursuit of unsubstantiated allegations constituted exceptional circumstances justifying an award of indemnity costs. The court applied the principles governing costs in family law proceedings, recognising that while costs are not usually awarded as of course, they may be ordered on an indemnity basis where a party's conduct has been unreasonable or vexatious, thereby causing the other party to incur costs that were unnecessary. The court found that the father's actions had directly led to the mother incurring significant legal expenses in seeking the recovery of the children.

Consequently, the court ordered that the father pay the mother's costs for the Application in a Case filed 26 March 2019 on an indemnity basis in the amount of $7,083.00. The father was also ordered to pay the mother's costs on the costs application itself on a party/party basis, including an advocacy loading. All other extant applications were dismissed.

Orders

Orders of the court

The father is to pay the costs of the mother for the Application in a Case filed 26 March 2019 on an indemnity basis in the amount of SEVEN THOUSAND AND EIGHTY THREE DOLLARS ($7,083.00).

The father is to pay the costs of the mother on the costs application on a party/party basis in accordance with Part 1 of the Schedule of the Federal Circuit Court Rules 2001 (Cth) including an advocacy loading.

All extant applications are otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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