Powell & Powell - [2024] FedCFamC2F 1650

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Powell & Powell [2024] FedCFamC2F 1650

File number(s): BRC 2655 of 2023

Judgment of: JUDGE BERTONE

Date of judgment: 22 November 2024

Catchwords: FAMILY LAW – Final Parenting Orders made by consent – Father re-commenced proceedings less than two years later – s 65DAAA hearing – Father withdrew his application upon concluding his cross-examination – Mother seeks costs – whether to order indemnity costs – special costs order made – Mother seeks prohibition order pursuant to s 106QAC – Harmful proceedings order granted

Legislation:
Family Law Act 1975 (Cth) pt VII, ss 65DAAA, 117, 102QAC, 106QAE, 106QAG

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

Cases cited:
Carey & Prescott (No 2) [2024] FedCFamC1F 512

Huda & Huda & Anor (Costs) [2017] FamCAFC 104

Kohan & Kohan [1992] FamCA 116

Madin & Palis (Costs) [2016] FamCAFC 25

McEnearney & McEnearny (1980) FamCA 43

Nada and Nettle (Costs) [2014] FamCAFC 207

Penfold v Penfold (1980) 144 CLR 311

Prantage & Prantage [2013] FamCAFC 105

Sfakianakis & Sfakinanakis [2019] FamCAFC 54

Stasiuk & Guild [2021] FamCAFC 62

Whisprun Pty Ltd v Dixon [2003] HCA 48

Division: Division 2 Family Law

Number of paragraphs: 185

Date of last submission/s: 16 September 2024

Date of hearing: 18 and 19 July 2024

Place: Brisbane

Counsel for the Applicant: Mr Jordan

Solicitor for the Applicant: RK Law

Counsel for the Respondent: Mr Linklater-Steel

Solicitor for the Respondent: Day Family Law Pty Ltd
ORDERS

BRC 2655 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR POWELL

Applicant

AND:
MS POWELL

Respondent

ORDER MADE BY:

JUDGE BERTONE

DATE OF ORDER:

22 NOVEMBER 2024

THE COURT ORDERS:
1.By no later than 21 February 2025, the Father shall pay the Mother’s costs fixed in the sum of $80,000.
2.Pursuant to section 102QAC(1) of the Family Law Act 1975 (Cth) (‘the Act’) the Father MR POWELL born in 1975 is prohibited from instituting parenting proceedings under the Act against the Mother without leave of the Court first being granted pursuant to section 102QAG of the Act.
3.In the event the Father makes an application for leave to institute proceedings against the Mother pursuant to section 102QAE, then a Registrar of the Court is to notify the Mother that such application has been made and whether such application has been dismissed.

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…

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.

Continue reading Powell & Powell

Details

AGLC: Powell & Powell [2024] FedCFamC2F 1650
Case: [2024] FedCFamC2F 1650
Decision Date: 22 November 2024

CaseChat Overview and Summary

Mr Powell, the father, and Ms Powell, the mother, were before the Federal Circuit and Family Court of Australia in a matter concerning final parenting orders made by consent. Less than two years later, Mr Powell re-commenced proceedings, which were ultimately withdrawn during the course of a s 65DAAA hearing. The mother sought costs and an order to prohibit the father from instituting further parenting proceedings without leave of the court. The court was required to decide whether to grant the mother’s application for indemnity costs, special costs, and a prohibition order under section 106QAC of the Family Law Act 1975.

The court found that the father's proceedings were without merit and that the mother had incurred significant costs as a result of the father's actions. The court ordered the father to pay the mother's costs, fixed in the sum of $80,000. The court further found that the father's proceedings were harmful and vexatious, and granted a prohibition order under section 106QAC of the Family Law Act 1975. The court also made a special costs order, requiring the father to pay the mother's costs of the application for the prohibition order.

The court's reasoning was based on the findings that the father's proceedings were without merit and that the mother had incurred significant costs as a result of the father's actions. The court found that the father's proceedings were harmful and vexatious, and that the mother had been forced to defend herself against the father's unfounded allegations. The court concluded that the father's proceedings were an abuse of the court's process and that the mother was entitled to protection from further such proceedings.

The final orders of the court were that the father pay the mother's costs, fixed in the sum of $80,000, and that the father be prohibited from instituting further parenting proceedings against the mother without leave of the court. The court also made a special costs order, requiring the father to pay the mother's costs of the application for the prohibition order.

Orders

Orders of the court

BRC 2655 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR POWELL

Applicant

AND:

MS POWELL

Respondent

ORDER MADE BY:

JUDGE BERTONE

DATE OF ORDER:

22 NOVEMBER 2024

THE COURT ORDERS:

1. By no later than 21 February 2025, the Father shall pay the Mother’s costs fixed in the sum of $80,000.

2. Pursuant to section 102QAC(1) of the Family Law Act 1975 (Cth) (‘the Act’) the Father MR POWELL born in 1975 is prohibited from instituting parenting proceedings under the Act against the Mother without leave of the Court first being granted pursuant to section 102QAG of the Act.

3. In the event the Father makes an application for leave to institute proceedings against the Mother pursuant to section 102QAE, then a Registrar of the Court is to notify the Mother that such application has been made and whether such application has been dismissed.

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.

File number(s):	BRC 2655 of 2023
Judgment of:	JUDGE BERTONE
Date of judgment:	22 November 2024
Catchwords:	FAMILY LAW – Final Parenting Orders made by consent – Father re-commenced proceedings less than two years later – s 65DAAA hearing – Father withdrew his application upon concluding his cross-examination – Mother seeks costs – whether to order indemnity costs – special costs order made – Mother seeks prohibition order pursuant to s 106QAC – Harmful proceedings order granted
Legislation:	Family Law Act 1975 (Cth) pt VII, ss 65DAAA, 117, 102QAC, 106QAE, 106QAG Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Carey & Prescott (No 2) [2024] FedCFamC1F 512 Huda & Huda & Anor (Costs) [2017] FamCAFC 104 Kohan & Kohan [1992] FamCA 116 Madin & Palis (Costs) [2016] FamCAFC 25 McEnearney & McEnearny (1980) FamCA 43 Nada and Nettle (Costs) [2014] FamCAFC 207 Penfold v Penfold (1980) 144 CLR 311 Prantage & Prantage [2013] FamCAFC 105 Sfakianakis & Sfakinanakis [2019] FamCAFC 54 Stasiuk & Guild [2021] FamCAFC 62 Whisprun Pty Ltd v Dixon [2003] HCA 48
Division:	Division 2 Family Law
Number of paragraphs:	185
Date of last submission/s:	16 September 2024
Date of hearing:	18 and 19 July 2024
Place:	Brisbane
Counsel for the Applicant:	Mr Jordan
Solicitor for the Applicant:	RK Law
Counsel for the Respondent:	Mr Linklater-Steel
Solicitor for the Respondent:	Day Family Law Pty Ltd

BRC 2655 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR POWELL Applicant
AND:	MS POWELL Respondent

ORDER MADE BY:	JUDGE BERTONE
DATE OF ORDER:	22 NOVEMBER 2024