Karlsson & Karlsson (No 2) - [2022] FedCFamC2F 1714

Federal Circuit and Family Court of Australia
(DIVISION 2)
Karlsson & Karlsson (No 2) [2022] FedCFamC2F 1714

File number(s): SYC 8036 of 2017

Judgment of: JUDGE M NEVILLE

Date of judgment: 14 December 2022

Catchwords: FAMILY LAW – costs – wife’s application for indemnity costs following summary dismissal of section 79A relief – husband wholly unsuccessful – whether proceedings necessitated by failure of party to comply with court orders – where husband seeks to raise costs of proceedings in 2017 – orders made for costs in favour of the wife at scale – husband’s application for leave to extend time to seek costs refused

Legislation:
Family Law Act 1975 (Cth) ss 79A, 117

Family Law Rules 2004 (Cth)

Federal Circuit Court Rules 2001 (Cth) sch 1, r 21.02

Cases cited:
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

Collins & Collins (1985) FLC 91-602

Cooper & Oakley (No 2) [2012] FamCAFC 187

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123

Fountain Selected Meats Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

I & I (No 2) (1995) FLC 92-625

Jensen & Jensen (1982) FLC 91-263

Karlsson & Karlsson [2018] FCCA 3483

Karlsson & Karlsson [2020] FamCAFC 207

Karlsson & Karlsson (No 2) [2020] FCCA 144

Kohan & Kohan (1993) FLC 92-340

Latoudis v Casey (1990) 170 CLR 534

Munday & Bowman (1997) FLC 92-784

Penfold v Penfold (1980) 144 CLR 311

Prantage & Prantage [2013] FamCAFC 105

Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 115

Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 225

Division: Division 2 Family Law

Number of paragraphs: 160

Date of last submission/s: 28 June 2021

Date of hearing: On the papers

Place: Sydney

Counsel for the Applicant The applicant did not appear

Counsel for the Respondent The respondent did not appear
ORDERS

SYC 8036 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KARLSSON

Applicant

AND:
MR KARLSSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE M NEVILLE

DATE OF ORDER:

14 December 2022

THE COURT ORDERS THAT:
1.The husband is to pay the wife’s costs in relation to the Initiating Application filed by him on 7 June 2018 and dismissed on 29 January 2020, fixed in the amount of $27,123 to be paid from:
(a)The funds presently held on behalf of the parties in the trust account of C Lawyers; and
(b)To the extent that those funds are insufficient to satisfy the costs order, then the balance is to be paid by the husband personally.

2.In the event that the funds presently held on behalf of the parties in the trust account of C Lawyers exceed $27,123, then after that sum has been paid to the wife, the balance of the monies held on trust for the parties shall be paid to the husband.

Note: The form of the order is subject to the entry in the…

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: [2022] FedCFamC2F 1714
Decision Date

CaseChat Overview and Summary

The case of Karlsson & Karlsson (No 2) involved a wife's application for indemnity costs following the summary dismissal of her husband's application under section 79A of the Family Law Act 1975. The husband had sought to set aside property settlement orders on the basis that the wife had engaged in fraudulent conduct and breached court orders. The husband was wholly unsuccessful in his application and the wife sought indemnity costs. The court considered the husband's contentions that the proceedings were necessitated by the wife's breach of orders, and that there had been procedural unfairness and judicial bias. The court found that there were circumstances justifying an order for costs, but declined to order indemnity costs. Instead, the court ordered that the husband pay the wife's costs at a fixed sum of $27,123, to be paid from funds held in trust and, if insufficient, personally by the husband. The court also dismissed the husband's applications for costs in relation to earlier proceedings, as out of time.

Orders