Selwood & Selwood

Case [2023] FedCFamC1F 680

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Selwood & Selwood [2023] FedCFamC1F 680

File number(s): SYC 4251 of 2021
Judgment of: ALTOBELLI J
Date of judgment: 17 August 2023
Catchwords: FAMILY LAW – COSTS – Where both parties seek a costs order against the other – Where both parties seek indemnity costs – Where neither party was wholly unsuccessful – Where both parties made more favourable offers to settle than the orders provided – Where the evidence is insufficient to displace the starting position that each party will bear their own costs as set out under s 117(1) of the Family Law Act 1975 (Cth) – Costs application dismissed – Each party pay their own costs of the proceedings.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17(1)

Cases cited:

Browne & Green (2002) FLC 93-115; [2002] FamCA 791

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

Gambetto & Farrelli (No 2) [2022] FedCFamC1A 202

Gambetto & Farrelli (No 6) [2022] FedCFamC2F 1007

In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Munday v Bowman (1997) FLC 92-784

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Selwood & Selwood [2023] FedCFamC2F 339

Division: Division 1 First Instance
Number of paragraphs: 45
Date of last submission/s: 31 July 2023
Date of hearing: In Chambers
Place: Sydney
Solicitor for the Applicant: Edwards Moloney Family Law
Solicitor for the Respondent: Dorter Family Lawyers and Mediators

ORDERS

SYC 4251 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SELWOOD

Applicant
AND:

MS SELWOOD

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

17 AUGUST 2023

THE COURT ORDERS THAT:

1.The Applicant husband’s Amended Application in a Proceeding filed 4 July 2023 is dismissed.

2.The Respondent wife’s Response to an Application in a Proceeding filed 15 June 2023 is dismissed.

3.Each party is to pay their own costs of the proceedings including the present costs application.

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).

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AGLC
Selwood & Selwood [2023] FedCFamC1F 680
Case
[2023] FedCFamC1F 680
Decision Date

CaseChat Overview and Summary

Selwood & Selwood involved a dispute between the parties regarding parenting arrangements for their children. The case was heard in the Family Court of Australia. The parents were in disagreement over various aspects of their children’s upbringing, including residence and contact arrangements, which necessitated judicial intervention. The court was tasked with determining the best interests of the children in the context of the parents’ conflicting views and actions.

The legal issues the court had to address included whether either party's conduct warranted an order for costs under section 117 of the Family Law Act. Specifically, the court needed to assess whether the adversarial conduct of either party was unjust and whether it was in the interests of justice to order one party to pay the other’s costs. This required a detailed examination of the evidence and arguments presented by both parties regarding their respective actions and contributions to the adversarial nature of the proceedings.

The court found that neither party's conduct met the criteria for an order of costs. The reasoning involved a thorough analysis of the evidence, which revealed that both parties contributed to the adversarial atmosphere of the proceedings. The findings indicated that the adversarialism was not sufficiently attributable to one party alone, nor was it severe enough to justify a costs order. Consequently, the court concluded that it was not in the interests of justice to order either party to pay the other’s costs. Instead, the court determined that each party should bear their own costs associated with the interim application, the review application, and the application for costs. This decision underscored the need for a less adversarial approach in parenting disputes to better serve the interests of the children.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court finds that neither of the parties’ conduct falls within the parameters described by the High Court and the findings made in my reasons for judgment support this conclusion.CONCLUSION For these reasons, I am not satisfied that it is in the interests of justice for an order for costs to be made in favour of either party. These are parenting proceedings that are being conducted with undue and unhelpful adversarialism. On balance, the combined circumstances above are insufficient to displace the starting position that each party will bear their own costs in proceedings as set out under s 117(1) of the Act. Each party will bear their own costs relating to the interim application, the review application, and the application for costs.

Ratio Decidendi

Legal Principle Established

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