Sewin & Cheals (No 2)

Case [2023] FedCFamC1F 364

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sewin & Cheals (No 2) [2023] FedCFamC1F 364

File number(s): PAC 4193 of 2018
Judgment of: SCHONELL J
Date of judgment: 12 May 2023
Catchwords: FAMILY LAW – COSTS – Where the three respondents sought costs against the applicant – Where the applicant filed three Contempt Applications against the respondents which she subsequently discontinued – Consideration of factors in s 117 of the Family Law Act 1975 (Cth) – Where an offer was made which the applicant rejected – Costs ordered against the applicant on a party/party basis.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

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

Cases cited:

Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Colgate Palmolive Company and Another v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

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

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

Shwarz and Schwarz (1985) FLC 91-618; [1985] FamCA 21

Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: Division 1 First Instance
Number of paragraphs: 43
Date of last submissions: 20 April 2023
Date of hearing: 12 May 2023
Place: Sydney
Solicitor for the Applicant: Christina Lam & Associates
Counsel for the First Respondent: Mr McCaw
Solicitor for the First Respondent: Brighton Lawyers
Counsel for the Second and Third Respondents: Mr Blackah
Solicitor for the Second and Third Respondents: Justice Family Lawyers

ORDERS

PAC 4193 of 2018

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

MS SEWIN

Applicant
AND:

MR CHEALS

First Respondent

MS NANG

Second Respondent

MR G CHEALS

Third Respondent

order made by:

SCHONELL J

DATE OF ORDER:

12 MAY 2023

THE COURT ORDERS THAT:

1.The applicant pay the costs incurred on a party/party basis as agreed or assessed of the first, second and third respondents in the period between 28 October 2022 and 9 February 2023 in relation to the three Application–Contempt filed by the applicant.

2.Upon such assessment and/or agreement, the applicant shall pay the costs from any funds received as a consequence of orders being made on a final basis in the financial proceedings as between the parties.

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…

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AGLC
Sewin & Cheals (No 2) [2023] FedCFamC1F 364
Case
[2023] FedCFamC1F 364
Decision Date

CaseChat Overview and Summary

In the case of Sewin & Cheals (No 2), the applicant brought Contempt Applications against the first, second, and third respondents. The matter proceeded to be dismissed by the Court, and the respondents sought costs on the basis that the applications were defective and the applicant had failed to comply with directions. The central issue before the Court was whether the costs incurred by the respondents from the filing of the Contempt Applications until the filing of the Notice of Discontinuance could be awarded under the circumstances.

The Court considered the nature of the Contempt Applications, noting that the applications themselves were defective and that the evidence provided by the applicant was insufficient to meet the requisite standard of proof. The Court also took into account that the applicant had failed to comply with directions, including the requirement to serve evidence and submissions on the respondents. Despite these issues, the Court did not find the applications to be fatally flawed but did acknowledge that they had resulted in costs being incurred by the respondents.

In making its decision, the Court noted that the overarching purpose of the Family Law Act, as reinforced by the Rules and the Central Practice Direction, required parties to conduct proceedings in a manner consistent with that purpose. The Court found that the applicant's actions had not aligned with this requirement, and as a result, costs were justified. However, the Court also had regard to the financial circumstances of the applicant and decided that she should only be required to pay the costs of the first, second, and third respondents from any monies received as a consequence of the final property proceedings.

The Court ordered that the applicant was to pay the costs of the first, second, and third respondents on a party/party basis from the date of the filing of the Contempt Applications until the filing of the Notice of Discontinuance on 9 February 2023. However, the applicant was only required to pay those costs out of any monies she received as a consequence of the final property proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The second and third respondents relied upon the following documents:(1)Affidavit of Mr M, solicitor filed 10 March 2023; (2)Written submissions of the second and third respondents filed 10 March 2023; and (3)Written submissions in reply of the second and third respondents filed 13 April 2023. BACKGROUND On 28 October 2022, the applicant filed three Contempt Applications as against the first, second and third respondents. The first return date of the applications was on 11 November 2022. On that date the matter was adjourned to 16 December 2022 for further directions in circumstances where the applications had not been served in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). On 16 December 2022, the Court listed the matter for hearing on 14 February 2023, directing the applicant to file and serve any evidence and submissions on which she intended to rely on by 4.00 pm on 20 January 2023. The applicant did not comply with that direction and on 9 February 2023 filed a Notice of Discontinuance in relation to the Contempt Applications. At the listing on 14 February 2023, the Court formally dismissed the applications and made directions for the parties to file written submissions as to costs. Each of the respondents contend that on the basis of the evidence adduced so far by the applicant, she could never have satisfied the Court on the requisite standard of proof that there had been a breach of an order. The first respondent submits:22. In summary, the evidence provided by the applicant was defective, paultry, and there was no prospect of the application succeeding. The applicant was given two opportunities to produce and file further evidence and failed to comply with court orders. The first respondent submits that the application was doomed to fail and amounted to no more than a waste of resources of the Court and the respondents. (First respondent’s written submissions filed 17 March 2023) Whilst the second and third respondents submit that the Contempt Applications themselves were fatally flawed because:1. They do not specify whether the alleged contempt is pursuant to Family Law Act s. 112AP (1)(a) or s. 112AP (1)(b); they do not allege flagrant challenge to the authority of the Court;2. They refer to but do not annexe the orders of 15 September 2022; they only annexe the orders of 15 June 2022;3. They allege that “the Respondent” further dissipated all proceeds of sale without identifying which Respondent is being referred to;4. They contain a word that is not known in the English language, “depsite”; and 5. They refer to “the time the order was made” without identifying which order is being referred to (Second and third respondents’ written submissions filed 10 March 2023, page 3) They further contend:Further, the wife’s Affidavit of 17 October 2022 in support of the Contempt Applications is defective and deficient because:1. Much of it is inadmissible; the whole of paras 8, 9, 11 & 12, para 10 commencing on line 1 with the words “which showed” to the end of the paragraph and including Annexure “A”, paragraph 13 commencing on line 2 with the words “in an attempt” to the word “proceedings” on line 3, and para 14 all words from and including “in clear breach” to the end of the paragraph; and2. The bases of the inadmissibility of those parts of the wife’s Affidavit are hearsay, opinion, and in the case of Annexure “A” it fails to fall within the exception to the hearsay rule in Evidence Act s. 69 because of sub section (3)(a) – it was prepared for the purpose of these proceedings 3. What remains is incapable of sustaining the charge (Second and third respondents’ written submissions filed 10 March 2023, page 3)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The overarching purpose is reinforced by the Rules and the Central Practice Direction – Family Law Case Management (CPD), especially the core principles which include that parties must conduct the proceedings (including negotiations for settlement of the dispute) in a way that is consistent with the overarching purpose. CONCLUSION The applications filed by the applicant were one that required her to establish the elements of a contempt according to the criminal standard. The evidence filed in support of the applicant’s application on its face would have struggled to meet the requisite standard of proof. The applicant did not comply with the Rules as to service and whilst the Court does not embrace the proposition that the application was fatally flawed, as all of the evidence in support of it had not been filed, the filing of the application resulted in the incurring of costs by the respondents. I am satisfied that there are circumstances that justify the making of a costs order on a party/party basis from the date of the filing of the applications until the filing of the Notice of Discontinuance on 9 February 2023. I have, however, had regard to the financial circumstances of the applicant and will make an order that the applicant is only required to pay the costs of the first, second and third respondents on a party/party basis out of any monies that she receives as a consequence of the final property proceedings. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

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