Roswell & Roswell (No 2)

Case [2024] FedCFamC2F 248


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Roswell & Roswell (No 2) [2024] FedCFamC2F 248

File number(s): ADC 5529 of 2020
Judgment of: JUDGE BROWN
Date of judgment: 28 February 2024
Catchwords:  FAMILY LAW – costs – contested property proceedings – wife seeks award of indemnity cost – husband made allegations of fraud which were not accepted at trial – proceeding delayed by husband’s conduct – husband indicated proceedings were consensually resolved but withdrew consent – matter proceeded to trial – husband unrepresented – Calderbank letters – two settlement offers made by the wife – offers not accepted by the husband – legal principles applicable to costs – costs order made in favour of the wife on a party/party basis
Legislation:

 Family Law Act 1975 (Cth) ss 4(1), 75(2), 79, 117, 117C.

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 7, 190, 191.

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1, rr 4.01.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 12; Pt 4.2, 12.8, Sch 3, rr 12.01; 12.08, 12.13, 12.17, 12.47,

Cases cited:

Browne v Green (2002) 29 Fam LR 428

Browne v Green (2002) 170 FLR 411

Bulow & Bulow (No 5) [2021] FedCFamC2F 166

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Roswell & Roswell [2023] FedCFamC2F 579

In the Marriage of I & I (No 2) (1995) 22 Fam LR 557

In the Marriage of Kohan (1992) 16 Fam LR 245

In the Marriage of Steel (1992) 15 Fam LR 556

Pennisi v Pennisi (1997) 141 FLR 401

Prantage & Prantage (2013) FLC 93-544

Stasiuk & Guild [2021] FamCAFC 62

Watson & Ling [2013] FamCA 57

Division: Division 2 Family Law
Number of paragraphs: 114
Date of hearing: 9 November 2023
Place: Adelaide
Counsel for the Applicant: Mr Dillon
Solicitor for the Applicant: Shorter Legal Pty Ltd
Respondent: Appeared in person

ORDERS

ADC 5529 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ROSWELL

Applicant

AND:

MR ROSWELL

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

28 FEBRUARY 2024

THE COURT ORDERS THAT:

1.Within thirty (30) days of the date of these orders, the Respondent Husband, pay the Applicant:

(a)The fixed sum of TEN THOUSAND DOLLARS ($10,000.00) by way of party/party costs arising from the proceedings and relating to the costs application made ancillary to it; and

(b)The sum of the Applicant Wife’s disbursements for her counsel’s fees in the fixed sum of FIFTEEN THOUSAND SEVEN HUNDRED AND FIVE DOLLARS AND SEVENTY-SEVEN CENTS ($15,705.77).

2.The Application in a Proceeding filed 19 June 2023 is 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…

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Roswell & Roswell (No 2) [2024] FedCFamC2F 248
Case
[2024] FedCFamC2F 248
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard a dispute between Ms Roswell and Mr Roswell concerning the division of property following their divorce. The wife sought an indemnity cost order, claiming the husband's conduct had unreasonably delayed the proceedings and that he had made unaccepted settlement offers. The husband's allegations of fraud against the wife were not substantiated, and his conduct led to the proceedings being delayed. Despite initial indications that the parties had resolved their differences consensually, the husband later withdrew his consent, necessitating a trial.

The court needed to determine the appropriate legal principles to apply in awarding costs, particularly focusing on the husband's conduct and the settlement offers made by the wife. The legal framework required the court to consider whether the husband's conduct warranted an indemnity costs order and whether the wife's settlement offers could influence the costs outcome. The court's analysis included evaluating the husband's allegations of fraud, the impact of his conduct on the proceedings, and the procedural fairness of the wife's settlement offers.

In its reasoning, the court found that the husband's conduct had indeed unreasonably delayed the proceedings and that his allegations of fraud were unfounded. The court recognised the wife's attempts to resolve the matter amicably through settlement offers, which were not accepted. Accordingly, the court held that the husband's conduct warranted an indemnity costs order, and it awarded costs to the wife on a party/party basis. The court ordered the husband to pay the wife a fixed sum of $10,000 as party/party costs and an additional $15,705.77 for her counsel’s fees. The application filed on 19 June 2023 was dismissed as the court deemed it unnecessary.

Orders

Orders of the court

ADC 5529 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ROSWELL

Applicant

AND:

MR ROSWELL

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

28 FEBRUARY 2024

THE COURT ORDERS THAT:

1. Within thirty (30) days of the date of these orders, the Respondent Husband, pay the Applicant:

(a) The fixed sum of TEN THOUSAND DOLLARS ($10,000.00) by way of party/party costs arising from the proceedings and relating to the costs application made ancillary to it; and

(b) The sum of the Applicant Wife’s disbursements for her counsel’s fees in the fixed sum of FIFTEEN THOUSAND SEVEN HUNDRED AND FIVE DOLLARS AND SEVENTY-SEVEN CENTS ($15,705.77).

2. The Application in a Proceeding filed 19 June 2023 is 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).

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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