McMillan & McMillan

Case [2023] FedCFamC1F 60

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

McMillan & McMillan [2023] FedCFamC1F 60

File number(s): CSC 355 of 2015
Judgment of: BAUMANN J
Date of judgment: 17 February 2023
Catchwords: FAMILY LAW – REVIEW OF REGISTRAR’S DECISION – COSTS – Where the parties have been litigating for over 20 years – Where the wife sought enforcement of costs orders made over five years ago – Where the husband has brought multiple applications of a similar nature of which none have been successful   
Legislation:

Family Law Act 1975 (Cth) ss 102QB, 105, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.50, 19.23

Cases cited:

McMillan & McMillan [2017] FamCAFC 88

McMillan & McMillan [2017] FamCA 1102

McMillan & McMillan (No. 3) [2020] FamCAFC 256

Division: Division 1 First Instance
Number of paragraphs: 32
Date of hearing: 4 July 2022
Place: Brisbane
Solicitor for the Applicant: Litigant in person
Solicitor for the Respondent: WGC Lawyers

ORDERS

CSC 355 of 2015

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

MR MCMILLAN

Applicant
AND:

MS MCMILLAN

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

17 FEBRUARY 2023

THE COURT ORDERS:

1.That the Application for Review filed 12 May 2022 be dismissed.

2.That the Application in a Proceeding filed 17 June 2022 be dismissed

3.That the husband pay the wife the fixed sum of $2,000 for the costs of both Applications, within sixty (60) days of the date of this Order.

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 publication of this judgment by this Court under the pseudonym McMillan & McMillan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

  1. The parties in this matter, Mr McMillan (“the husband”) and Ms McMillan (“the wife”) have been litigating in this jurisdiction since before 2015.  Considering the amount of judicial intervention, I chose only to deal with the Applications listed before me on 22 July 2022, however I am well aware of the history of litigation.

    BRIEF BACKGROUND

  2. This current phase of the litigation begins with a costs order made on 24 April 2017 by Justice Murphy (sitting as a single Appellant Judge) on these terms:

    The applicant husband pay the respondent wife’s costs of and incidental to both Applications in an Appeal in an amount to be agreed between the parties…

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AGLC
McMillan & McMillan [2023] FedCFamC1F 60
Case
[2023] FedCFamC1F 60
Decision Date

CaseChat Overview and Summary

In the case of McMillan & McMillan, the husband and wife continued their long-standing litigation with a series of applications brought before the court. The husband sought various orders, including a refusal to enforce certain costs orders, an investigation into the conduct of the wife and her lawyer, and a costs hearing to separately litigate ongoing costs matters. The wife opposed these applications, seeking costs against the husband for the applications. The legal issues before the court involved whether the husband could challenge the enforcement of previous costs orders and if he could obtain relief from the ongoing litigation.

The court found that the husband had previously raised similar issues, and the Full Court had already dismissed an appeal against one of the costs orders. The court concluded that there was no basis to overturn the costs orders or grant the husband the relief he sought. The court emphasized that while the wife was entitled to enforce the costs orders, the husband's numerous applications were largely in response to her enforcement actions. The court also noted that the husband had assets and had been unsuccessful in his applications, and his Application in a Proceeding was not the first time he sought similar relief. As a result, the court dismissed the husband's applications and ordered him to pay costs to the wife.

In summary, the court found no grounds to vacate or overturn the previous costs orders or grant the husband the relief he sought. The court dismissed the husband's applications and ordered him to pay costs to the wife. The court also noted that the husband's numerous applications were largely in response to the wife's enforcement actions, and that he had been unsuccessful in his attempts to challenge the costs orders.

Orders

Orders of the court

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Background

Background to the litigation

The parties in this matter, Mr McMillan (“the husband”) and Ms McMillan (“the wife”) have been litigating in this jurisdiction since before 2015. Considering the amount of judicial intervention, I chose only to deal with the Applications listed before me on 22 July 2022, however I am well aware of the history of litigation.BRIEF BACKGROUND This current phase of the litigation begins with a costs order made on 24 April 2017 by Justice Murphy (sitting as a single Appellant Judge) on these terms: The applicant husband pay the respondent wife’s costs of and incidental to both Applications in an Appeal in an amount to be agreed between the parties in writing or failing agreement, as assessed.with the costs ordered to be payed within 60 days of the date of any such assessment or agreement. The substantive Appeal was dismissed on 24 April 2017 when leave to appeal out of time was refused. The wife has filed multiple enforcement warrants seeking to enforce costs orders made against the husband – the last one being on 19 January 2021 seeking enforcement of various orders calculated to amount to $15,707.15 plus costs of $642.08. The wife then sought an order, by an Application in a Proceeding, to provide itemised costs accounts in respect of the aforementioned order of 24 April 2017 and a subsequent costs order made by Justice Tree on 22 December 2017. On 21 April 2022, a Senior Judicial Registrar ordered the husband to pay the wife $5,366.48 for the costs order made 24 April 2017 and $3,626.10 for the costs order made 22 December 2017. On 12 May 2022 the husband filed a Review Application against the order of the Senior Judicial Registrar of 21 April 2022. On 17 June 2022, the husband filed a further Application in a Proceeding. On 4 July 2022, the matter came before me and I received some brief submissions, in addition to written submissions, namely: (a)The husband’s summary of argument in support of the orders he seeks, which were expressed as follows:1.That The Court “Refuse to Enforce” the Costs Orders, being the Costs Order made by Judge Murphy of The Full Court on 24-4-20172.That The Court “Refuse to Enforce” the Costs Orders made by Judge Tree on 22-12-20173.That The Court Order an “Investigation” into The Conduct of The Respondent: [Ms McMillan] and into The Conduct of The Respondent's Lawyer: [Mr J] with Regard to Their MisConduct throughout These Proceedings4.That The Court Allow a “Publication Order” or that The Court Alternatively, “Refer” this Question of Law to “The High Court”5.That The Court Order a “Costs Hearing” so ongoing Costs Matters can be Separately Litigated6.That The Court Order a Costs Order in Favour of The Applicant, that will bring Adequate “Relief” and “Resolution” for the Costs Incurred by The Applicant to Date, in “Defending Himself” in These Ongoing Matters7.That The Court Make any other Order that will Bring “Justice and Equity” and bring “Finality” and “Resolution” to These Matters for “Evermore”[Sic](b)The wife’s written submissions dated 1 July 2022 in respect of: (i)the Application for Review, seeking the review be dismissed, with costs estimated at $1,036.88; and (ii)the Application in a Proceeding be dismissed with costs fixed in the sum of $1,555.32.THE APPLICATION FOR REVIEW

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The husband is correct when he says he has raised all these issues before. For example, in the published decision of the Full Court (Strickland, Ainslie-Wallace & Ryan JJ) of McMillan & McMillan (No. 3) [2020] FamCAFC 256, the Full Court, in dismissing another appeal against the order by Justice Tree when he refused to recuse himself, referred, at [12], to similar orders being pursued as the husband has done now. It is clear from those Reasons, Justice Tree was asked to consider similar submissions previously.CONCLUSION I am sure the wife seeks finality, as does the husband, however there is no basis that would permit this Court now, as a trial division matter, to vacate or “overturn” the orders made by Justice Murphy or Justice Tree, which have been the subject of proper assessment. Why the wife regards it as important to prolong this litigation through these Court orders is entirely a matter for her. She is entitled to do so. Whether or how, considering s 105 of the Act, those costs orders are to be enforced is not a matter for me at this time. The husband’s Application in a Proceeding has been agitated many times before with no success. Nothing I can say is likely to change the husband’s beliefs, but there is no basis on the evidence he continues to present again and again, that would support this Court granting him the relief he seeks. As a result, his Application in Proceeding will be dismissed. I have already indicated that, in the absence of a formal application properly heard, I am not prepared to consider making an order that the husband be declared a vexatious litigant. I accept the Court has the power under s 102QB(3) to initiate such an application. I do however make this observation, and that is almost entirely the applications made by the husband are in response to the applications for enforcement made by the wife – namely she is the initiator.COSTS In respect of both Applications, the wife seeks an order for costs being:(a)$1,036.88 for the Review Application; and(b)$1,555.12 for the Application in a Proceeding. Whilst s 117(1) of the Act provides that each party should bear their own costs of proceedings, s 117(2) enlivens the Court to award costs if the circumstances justify a costs order and any costs order shall be at a level that is just. It is not necessary to consider all the s 117(2A) factors, however it is clear that the husband has some assets (as he claims the wife’s intent is to take his home from him); that he has been entirely unsuccessful in this Application for Review and Application in a Proceeding, and further his Application in a Proceeding is not the first time he has sought similar relief. In the circumstances, I propose to fix costs – but do not allow the wife to claim the appearance fee of $259.22 twice. As the Rules permit, I fixed costs for both applications I heard on the same day in a sum of $2,000 payable in 60 days.

Ratio Decidendi

Legal Principle Established

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