Princeton & Gleeson (No 2)
[2022] FedCFamC1F 865
Federal Circuit and Family Court of Australia
(DIVISION 1)
Princeton & Gleeson (No 2) [2022] FedCFamC1F 865
File number(s): BRC 9261 of 2019 Judgment of: BAUMANN J Date of judgment: 21 November 2022 Catchwords: FAMILY LAW – COSTS – Where a party has been wholly unsuccessful in an application on a limited remaining disputed issue – fixed costs ordered Legislation: Family Law Act 1975 (Cth) s 117(1). Cases cited: Princeton & Gleeson [2022] FedCFamC1F 486 Division: Division 1 First Instance Number of paragraphs: 13 Date of last submission/s: 13 September 2022 Date of hearing: 5 September 2022 Place: Brisbane The First Applicant: Litigant in person The Second Applicant: Litigant in person Counsel for the First Respondent: Ms Wardle Solicitor for the First Respondent: Griffiths Lawyers Pty Ltd Solicitor for the Second Respondent: Doyle Family Law ORDERS
BRC 9261 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR C PRINCETON
First Applicant
MS D PRINCETON
Second Applicant
AND: MS PRINCETON
First Respondent
MR GLEESON
Second Respondent
order made by:
BAUMANN J
DATE OF ORDER:
21 November 2022
THE COURT ORDERS:
1.That the maternal grandmother Ms D Princeton make a contribution to the costs of the Second Respondent father, fixed in the sum of $3,000, payable within thirty (30) 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 Princeton & Gleeson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The Court’s Judgment delivered orally on 1 April 2022 for which Reasons were published (see Princeton & Gleeson [2022] FedCFamC1F 486), gave some of the history since final Orders and parenting arrangements for X (born 2014) were made by a Judge of the Federal Circuit Court of Australia (as it was then known) on 14 May 2019.
Suffice it so say that the effect of those Orders were that X would live with her maternal grandparents Mr C Princeton and Ms D Princeton (“the grandparents”) and spend supervised time with the mother Ms Princeton (“the mother”) and defined unsupervised time with the father Mr Gleeson. The history reveals the mother had a problematic history of illegal drug use. The grandparents were strongly of the view that the father also had unresolved drug issues, but more destructively had both influenced and subjected their daughter (the mother), to take up drugs and otherwise coercively controlled her. Clearly the grandparents, in the years soon after X’s birth, acted protectively whilst trying to persuade their daughter that Mr Gleeson was not a good person to be involved with in the future.
No point arises in undertaking an analysis as to how, from the Orders made in 2019, we come to the position on 1 April 2022, three years later, where the Court made fresh final Orders essentially providing for:
(a)the mother and father to have equal shared parental responsibility;
(b)X to live with the mother; and
(c)the child to spend time with the father and also the grandparents as defined.
To the extent that some of the Orders made 1 April 2022 were by consent, and some were not, no appeal against any of the Orders was filed. However, on 1 April 2022 there was one significant remaining issue which related to the application by the grandparents (but in essence the grandmother) to be permitted to travel overseas with X. At orders 32 to 35, the terms of the remaining dispute were identified and a process for its determination, which was followed, was directed by the Court.
On 5 September 2022, a hearing on the remaining discrete issue was held, resulting in the following Orders being made:
1.That the Second Applicant’s Application in a Proceeding filed 22 April 2022 is dismissed, noting that the Second Applicant orally sought to vary her Application for the child [X] born […] 2014 to be permitted to travel internationally with the Second Applicant every two (2) years.
2.That Order 32 of the Orders made 1 April 2022 on an interim basis is henceforth made on a final basis.
Oral Reasons for such Orders were delivered on that day. No costs issues arose for determination in respect of proceedings before the hearing on 5 September 2022. In effect that gave recognition to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”).
However, the father, who was represented by solicitor advocate Ms Shearer at the conclusion of this short hearing, made an application for costs and tendered (marked Exhibit 2) written submissions seeking payment of costs for the period from 3 May 2022 to 5 September 2022 in the sum of $5,302.00. It seems clear that the estimate is on an indemnity costs – noting the use of the term “units” – which finds no reference in the scale under the Act.
The grandparents were directed to file any written submissions in response, which they did, on 13 September 2022. I have read all the submissions and have considered them, and the fact that a contention or submission is not mentioned in these Reasons should not be construed otherwise.
The Court has a power to depart from the general rule that each party bear their own costs of proceedings (s 117(1)) if the Court is satisfied there are circumstances which justify the making of a costs order, then the Court may make an order it regards as just (s 117(2)).
The written submissions on behalf of the father follows the pathway for determining this issue and I make the following findings:
(a)The grandparents are in a superior financial position to the father;
(b)The grandmother continued to pursue the issue of overseas travel (particularly after the trial on 1 April 2022) and caused the father, at his election, to engage legal representatives. The mother was unrepresented between 1 April 2022 and 5 September 2022, but fully supported the father’s position, with both parents opposing the grandmother’s application to spend more time (and more frequently) with X overseas. I also accept, to some extent, despite the Orders of 1 April 2022 identifying only one discrete issue, the grandmother wished to re-agitate other issues – she was unsuccessful and those parts of her Application were dismissed on 11 July 2022;
(c)The Orders made 5 September 2022 dismissed the grandmother’s application filed 22 April 2022, varied orally at the hearing, to seeking to travel every two years rather than annually. She was therefore wholly unsuccessful; and
(d)Most of the grandparents’ submissions is a return to, and re-statement of, earlier submissions made about the conduct in earlier parts of the proceedings; of other Judges’ determinations; and an alleged failure of a counsellor to provide a response to a subpoena. These issues were before me on 1 April 2022 as my Reasons at paragraphs 23 to 32 make clear.
Discussion
I am satisfied circumstances exist to justify an order for costs. As it was the grandmother who pursued the Application (although on 5 September 20222 the grandfather sat beside her and supported her), it is in my view proper that the grandmother bear responsibility for payment of the costs order.
There are no exceptional circumstances in this case to justify an order for indemnity costs. Costs should be fixed, so as to relieve the parties of the further costs to be incurred by assessment or taxation of costs.
I will fix costs in the sum of $3,000, and allow the grandmother 30 days to pay this sum to the father.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 21 November 2022
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