Nixon & Dawkes

Case [2021] FCCA 1390

FEDERAL CIRCUIT COURT OF AUSTRALIA

Nixon & Dawkes [2021] FCCA 1390

File number: BRC 10703 of 2016
Judgment of: JUDGE LAPTHORN
Date of judgment: 22 June 2021
Catchwords: FAMILY LAW – property – application to set aside property orders pursuant to section 79A – application for summary dismissal
Legislation:

Family Law Act 1975 (Cth) ss 45A, 79A, 117

Federal Circuit Court Rules 2001 (Cth) r 13.10
Cases cited:

Beck & Beck [2004] FamCA 92

Bigg v Suzi (1998) FLC 92-799

Donaghey v Donaghey (Costs) (2012) 47 FamLR 306

Fitzgerald v Fish (2005) 33 FamLR 123

Lindon v Commonwealth of Australia (No 2) [1996] HCA 14

Karlsson & Karlsson [2020] FamCAFC 207

Pelerman and Pelerman (2000) FLC 93-037

Ritter & Ritter and Anor [2020] FamCAFC 86

Rohnan & Rohnan [2010] FMCAfam 1091

Webster v Lampard (1993) 177 CLR 598

Number of paragraphs: 33
Date of hearing: 19 April 2021
Place: Brisbane
Solicitor for the Applicant: Cherry Family Lawyers
Counsel for the Applicant: Mr Bunning
Solicitor for the Respondent: Lawyers With Integrity

ORDERS

BRC 10703 of 2016
BETWEEN:

MS NIXON

Applicant
AND:

MR DAWKES

Respondent

ORDER MADE BY:

JUDGE LAPTHORN

DATE OF ORDER:

22 JUNE 2021

THE COURT ORDERS THAT:

1.The Response to an Application in a Case filed 18 February 2021 and the Amended Response to an Application in a Case filed 18 April 2021 be dismissed.

2.Each party to bear their own costs.

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 under the pseudonym Nixon & Dawkes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE LAPTHORN

INTRODUCTION

  1. A Registrar of the Family Court of Australia made final property adjustment orders by consent of the parties on 20 July 2018.  Throughout this judgment I will refer to these orders as the consent orders.  On 25 November 2020 the applicant wife, Ms Nixon, filed an Application in a Case seeking enforcement of the consent orders by way of having her made trustee for sale of an investment property (the Town B property) that had been ordered to be sold in the consent orders.  Orders were made by consent to that effect on 23 February 2021 with her costs reserved. 

  2. The respondent husband, Mr Dawkes, in his Response filed 18 February 2021, sought orders varying the consent orders and costs. Although not specifically pleaded, it was understood between the parties, that he was seeking the variation pursuant to section 79A of the Family Law Act 1975 (Cth). His case was based on his belief that the consent orders had become impracticable to enforce and that they were entered into by him in the circumstance of the wife not having made full and frank disclosure of certain liabilities. The wife, in her Reply filed 23 March 2021, sought that the husband’s response be…

Continue reading Nixon & Dawkes

Sign in free to access the full text

Details
AGLC
Nixon & Dawkes [2021] FCCA 1390
Case
[2021] FCCA 1390
Decision Date

CaseChat Overview and Summary

In the matter of *Nixon & Dawkes*, heard in the Federal Circuit and Family Court of Australia, Ms Nixon was the applicant and Mr Dawkes was the respondent. The dispute concerned applications made by Mr Dawkes under section 79A of the *Family Law Act 1975* (Cth) and applications by Ms Nixon for enforcement and summary dismissal.

The court was required to determine whether to dismiss Mr Dawkes' response to an application in a case and his amended response, and to consider the appropriate costs orders. The court also implicitly considered the merits of Ms Nixon's applications for enforcement and summary dismissal, and the husband's section 79A application.

Justice Lapthorn found that Mr Dawkes had been unsuccessful in his section 79A application, while Ms Nixon had been wholly successful in her applications for enforcement and summary dismissal. Despite Ms Nixon's meritorious arguments and her offer to forgo costs if Mr Dawkes discontinued his application, the court exercised its discretion to order that each party bear their own costs. This decision was made notwithstanding the wife's success, taking into account the husband's parlous financial position.

The court ordered that the Response to an Application in a Case filed 18 February 2021 and the Amended Response to an Application in a Case filed 18 April 2021 be dismissed. Furthermore, each party was ordered to bear their own costs.

Orders

Orders of the court

BRC 10703 of 2016

BETWEEN:

MS NIXON

Applicant

AND:

MR DAWKES

Respondent

ORDER MADE BY:

JUDGE LAPTHORN

DATE OF ORDER:

22 JUNE 2021

THE COURT ORDERS THAT:

1. The Response to an Application in a Case filed 18 February 2021 and the Amended Response to an Application in a Case filed 18 April 2021 be dismissed.

2. Each party to bear their own costs.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The husband was put on notice by the wife in correspondence dated 10 March 2021 that she would seek indemnity costs if he persisted with his s.79A application. She offered not to press for her costs of the enforcement proceedings if he filed a notice of discontinuance leaving each party to bear their own costs. That offer was not taken up.Conclusion as to whether a costs order should be made When I take into account all of the above considerations I have come to the conclusion that each party should bear their own costs. I have arrived at that conclusion notwithstanding the very meritorious arguments raised by the wife. I am satisfied that she had to bring her application for enforcement given the delay in finalising the consent orders and should not have faced the s.79A application. She offered not to press her costs if he filed a notice of discontinuance. This would in most cases be sufficient to warrant a costs order. However in this case I have taken into account the husband’s parlous financial position and will exercise my discretion and decline to make any costs order save that each party bear their own costs.

Ratio Decidendi

Legal Principle Established

The husband has been unsuccessful in prosecuting his s.79A application. The wife has been wholly successful in her application for enforcement and in her application for summary dismissal.Consideration of offers made in writing The husband was put on notice by the wife in correspondence dated 10 March 2021 that she would seek indemnity costs if he persisted with his s.79A application. She offered not to press for her costs of the enforcement proceedings if he filed a notice of discontinuance leaving each party to bear their own costs. That offer was not taken up.Conclusion as to whether a costs order should be made When I take into account all of the above considerations I have come to the conclusion that each party should bear their own costs. I have arrived at that conclusion notwithstanding the very meritorious arguments raised by the wife. I am satisfied that she had to bring her application for enforcement given the delay in finalising the consent orders and should not have faced the s.79A application. She offered not to press her costs if he filed a notice of discontinuance. This would in most cases be sufficient to warrant a costs order. However in this case I have taken into account the husband’s parlous financial position and will exercise my discretion and decline to make any costs order save that each party bear their own costs.