FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kedis & Bainbridge (No 2) [2024] FedCFamC2F 587
File number(s): NCC 3630 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 13 May 2024 Catchwords: FAMILY LAW – Costs - should a costs order be made pertaining to substantive de facto property proceedings – on what basis and quantum - whether it was reasonable or not to accept an offer prior to determination – finding a minimal percentage difference in outcome – making a special costs order in favour of de facto wife is justified Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: AJO & GRO [2005] FamCA 195; (2005) 33 Fam LR 134
Alston & Alston [2021] FedCFamC1A 96
Bircher & Bircher [2016] FamCAFC 123
Booysen & Ferreira [2022] FedCFamC2F 1248
Brady & Brady [2012] FamCAFC 4
Browne & Green [2002] FamCA 791; (2002) 29 Fam LR 428; (2002) FLC 93-115
Cassidy v Murray [1995] FamCA 91; (1995) 19 Fam LR 492; (1995) FLC 92-633
D & D (Costs) (No 2) [2010] FamCAFC 64
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish [2005] FamCA 158; (2005) 33 Fam LR 123
Jess & Jess (No 2) [2021] FedCFamC1A 49
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45
Lawson & Glenning [2021] FedCFamC2F 118; (2021) 64 Fam LR 414
Lombardi & Rider [2021] FedCFamC2F 57; (2021) 64 Fam LR 103
Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) 54 Fam LR 1; (2015) FLC 93-664
Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612
Penfold v Penfold [1980] HCA 4; (1980) 5 Fam LR 579; (1980) FLC 90-800
Pennisi & Pennisi [1997] FamCA 39; (1997) 22 Fam LR 249
Prantage & Prantage (Costs) [2014] FamCA 850
Robinson & Higginbotham [1991] FamCA 5; (1991) 14 Fam LR 559; (1991) FLC 92-209
Sfakianakis & Sfakianakis [2019] FamCAFC 54; (2019) 59 Fam LR 419
Division: Division 2 Family Law Number of paragraphs: 72 Date of last submission/s: 2 May 2024 Date of hearing: Heard in chambers on the papers Place: Newcastle Solicitor for the Applicant: Tonkin Drysdale Partners Solicitor for the Respondent: Kilpatrick Hatton Solicitors ORDERS
NCC 3630 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KEDIS
Applicant
AND: MR BAINBRIDGE
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
13 MAY 2024
THE COURT ORDERS THAT:
1.Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Div 1 Rules’), as may be applicable, the parties are relieved from the effects of r 8.15(3)(e) of the Div 1 Rules so as…
Continue reading Kedis & Bainbridge (No 2)
Sign in free to access the full text
- AGLC
- Kedis & Bainbridge (No 2) [2024] FedCFamC2F 587
- Case
- [2024] FedCFamC2F 587
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether it was appropriate to make a costs order in favour of Ms Kedis, given that she had accepted a settlement offer that was minimally different from the outcome of the proceedings. The court had to weigh the factors outlined in section 90AB of the Family Law Act 1975 (Cth), which provides a framework for assessing costs in family law matters, including the conduct of the parties, the outcome of the proceedings, and the financial resources of the parties. The court also had to determine whether the acceptance of the offer was reasonable and justified in the context of the proceedings.
Judge Kearney found that the acceptance of the offer by Ms Kedis was reasonable, given the minimal difference in the outcome compared to the proceedings. The court considered the financial resources of both parties and the conduct of Ms Kedis in pursuing the proceedings. Given the circumstances, the court found that it was appropriate to make a special costs order in favour of Ms Kedis. The court fixed the costs at $31,000, reflecting the reasonable steps taken by Ms Kedis in the proceedings.
The court dismissed all outstanding interlocutory applications and noted that an enforcement application filed by Mr Bainbridge remained listed for a procedural hearing. The court's decision provided clarity on the circumstances under which a costs order may be made in de facto property proceedings, particularly where the outcome is minimally different from an accepted offer. The enforcement application was to be heard separately, indicating that the court intended to address specific enforcement issues in due course.
Orders
Orders of the court
NCC 3630 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KEDIS
Applicant
AND:
MR BAINBRIDGE
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
13 MAY 2024
THE COURT ORDERS THAT:
1. Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Div 1 Rules’), as may be applicable, the parties are relieved from the effects of r 8.15(3)(e) of the Div 1 Rules so as to permit them to read and rely upon any annexures to their respective affidavits.
2. By 13 August 2024, the de facto husband is to pay the de facto wife’s costs fixed in the sum of $31,000.
3. All outstanding interlocutory applications are otherwise dismissed.
THE COURT NOTES THAT:
A. The enforcement application filed by the de facto husband remains listed for procedural hearing before a Judicial Registrar on Tuesday 11 June 2024 at 9.30am.
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 an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.