Sedgley & Charton (No 3)
[2024] FedCFamC1F 746
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sedgley & Charton (No 3) [2024] FedCFamC1F 746
File number(s): SYC 4446 of 2020 Judgment of: JARRETT J Date of judgment: 7 November 2024 Catchwords: FAMILY LAW – COSTS – Where respondent filed no response to costs application – Where respondent’s conduct justifies costs order – Costs ordered in fixed sum Legislation: Family Law Act 1975 (Cth) ss 102NA(2), 117(1), 117(2), 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.05(1), 10.27(1), 10.27(2).
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: On the papers Place: [Brisbane] Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: Did not participate ORDERS
SYC 4446 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SEDGLEY
Applicant
AND: MR CHARTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs of the final hearing that took place on 26 August 2024 fixed in the sum of $61,316.75.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 12 September 2024 I delivered reasons for judgment and made orders in an application for parenting orders by the applicant Ms Sedgley. The applicant now seeks an order that the respondent, Mr Charton, pay her costs of the final hearing fixed in the sum of $61,316.75 (calculated on the indemnity basis).
When the extant Application in a Proceeding was filed, I issued directions for the conduct of the application. The directions required the respondent to file a response to the application by 21 October 2024, the applicant to file written submissions in support of the application by 28 October 2024 and the respondent to file his written submissions by 4.00pm on 4 November 2024.
Rule 5.05(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that a respondent to an Application in a Proceeding who seeks to oppose the application, or seeks different orders, must file and serve a Response to an Application in a Proceeding. The respondent has not filed a response to the present Application in a Proceeding and I infer from that, that he does not wish to oppose the orders sought in the Application in a Proceeding or seek different orders to those sought by the applicant.
Additionally, I find that the respondent is in default of the order I made on 8 October 2024. He has not filed a response to the Application in a Proceeding filed by the applicant on 16 October 2024. He is also in default of that order because he has not filed written submissions by the designated date.
Consequently, the powers set out in FCFCR 10.27(1) and (2) are engaged.
I have had regard to the written submissions filed by the applicant on 28 October 2024. Those submissions persuade me that it is just to make the orders sought by the applicant. The orders she seeks are unopposed.
Quite separately to that determination, I also consider that the order sought by the applicant is appropriate having regard to ss 117(1), 117(2) and 117(2A) of the Family Law Act 1975 (Cth).
I find that the respondent’s conduct of his response to the principal application and in particular his conduct in the lead up to the trial of the principal application before me, and his failure to file any evidence or prosecute any positive case before me, despite his assertions to the contrary in the mentions and directions hearing prior to the trial, are circumstances justifying a departure from the usual rule relating to costs prescribed by s 117(1) of the Act.
The applicant has, with the assistance of her parents, funded her own legal costs. The parties’ financial circumstances are evidenced by the final orders for property adjustment made on 8 February 2024. I take those into account.
I accept the applicant’s submission that the respondent has failed to prosecute his response in the principal application with due diligence. I accept that he has protracted the proceedings unnecessarily, consistently refused to update pleadings and affidavits, did not file any evidence for the final hearing and did not file a case outline document for that hearing. He took no advantage of the fact that s 102NA(2) of the Act applied so as to avail himself of legal representation.
Moreover, prior to the final hearing, the applicant offered to compromise the proceedings on terms that were consistent with the orders I pronounced on 12 September 2024.
I am satisfied that the amount claimed by the applicant is, in the circumstances, reasonable.
I make orders as set out at the commencement of these reasons.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 7 November 2024
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