McLaughlin & McLaughlin (No 2)

Case [2023] FedCFamC2F 1440


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

McLaughlin & McLaughlin (No 2) [2023] FedCFamC2F 1440

File number(s): SYC 3839 of 2022
Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND
Date of judgment: 9 November 2023
Catchwords: FAMILY LAW – COSTS – Review of an arbitral award – Application for stay and enforcement – Application for indemnity costs – Where the applicant wife was wholly unsuccessful in the proceedings – Applicant wife ordered to pay respondent husband’s costs in a fixed sum
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:

Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Colgate-Palmolive v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801

Collins and Collins (1985) FLC 91-603; [1985] FamCA 15

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania) v Fish (2005) 191 FLR 294; [2005] FamCA 158

Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23

Kohan and Kohan (1993) FLC 92-340; (1992) 112 FLR 151

McLaughlin & McLaughlin [2023] FedCFamC2F 1160

McLaughlin & McLaughlin (No 2) [2023] FedCFamC1F 516

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Prantage v Prantage (Costs) [2014] FamCA 850

Stoian v Fiening (Costs) [2014] FamCA 944

Wagner & Oakley [2023] FedCFamC1F 687

Division: Division 2 Family Law
Number of paragraphs: 19
Date of last submissions: 26 September 2023
Date of hearing: Determined on the papers
Place: Sydney
Solicitor for the Applicant: Santone Lawyers
Counsel for the Respondent: Mr Heazlewood
Solicitor for the Respondent: John & Co Lawyers

ORDERS

SYC 3839 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MCLAUGHLIN

Applicant

AND:

MR MCLAUGHLIN

Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

9 NOVEMBER 2023

THE COURT ORDERS THAT:

1.Within 28 days of the date of these orders, the applicant is to pay the costs of the respondent in and in connection with proceedings SYC 3839 of 2022 in both the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) in the fixed sum of $27,381.64.

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).

Section 121 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…

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McLaughlin & McLaughlin (No 2) [2023] FedCFamC2F 1440
Case
[2023] FedCFamC2F 1440
Decision Date

CaseChat Overview and Summary

The case of McLaughlin & McLaughlin (No 2) involves a dispute between the former spouses, Ms McLaughlin and Mr McLaughlin. The matter came before the Federal Circuit and Family Court of Australia, Division 2, which was tasked with reviewing an arbitral award, and subsequently, considering an application for a stay and enforcement of that award, as well as an application for indemnity costs. Ms McLaughlin, the applicant, sought to have the arbitral award enforced but was unsuccessful in her application. The legal issues before the court were whether the arbitral award should be enforced and, if so, who should bear the costs associated with the proceedings. The court was required to determine the appropriateness of an order for indemnity costs, given the applicant's unsuccessful outcome.

Deputy Chief Judge McClelland, in delivering the court's judgment, noted that the applicant had been entirely unsuccessful in her application. The court considered the statutory provisions under the Family Law Act 1975 (Cth) that permit the awarding of costs in such circumstances. The court reasoned that the applicant's failure to succeed in her application warranted a costs order against her. The judge assessed the amount of costs to be awarded, taking into account the complexity of the issues, the time spent by the respondent's legal team, and the overall outcome of the proceedings. The court found that the costs incurred by the respondent amounted to $27,381.64, which the applicant was ordered to pay within 28 days.

In light of the above, the court made an order that Ms McLaughlin was to pay the costs of the respondent in the fixed sum of $27,381.64. This order reflects the court's determination that the applicant should bear the costs associated with the proceedings due to her unsuccessful application for enforcement of the arbitral award. The form of the order is subject to the entry in the Court’s records and can be reviewed or varied as necessary under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

SYC 3839 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MCLAUGHLIN

Applicant

AND:

MR MCLAUGHLIN

Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

9 NOVEMBER 2023

THE COURT ORDERS THAT:

1. Within 28 days of the date of these orders, the applicant is to pay the costs of the respondent in and in connection with proceedings SYC 3839 of 2022 in both the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) in the fixed sum of $27,381.64.

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).

Section 121 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

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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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