Shee & Hale - [2022] FedCFamC1F 169

Federal Circuit and Family Court of Australia
(DIVISION 1)
Shee & Hale [2022] FedCFamC1F 169

File number(s): SYC 2311 of 2017

Judgment of: BAUMANN J

Date of judgment: 18 March 2022

Catchwords: FAMILY LAW – COSTS – Where circumstances exist to justify an order for costs in respect of the unsuccessful application (heard over four days) and the unsuccessful recusal application – Parties seek that costs be fixed – Costs fixed in the sum of $230,000

Legislation:
Family Law Act 1975 (Cth), ss 44, 117

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

Cases cited:
Krach & Krach (No. 2) [2009] FamCA 886

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Shee & Hale [2020] FamCA 84

Shee & Hale (No. 2) [2020] FamCA 494

Shee & Hale [2020] FamCAFC 140

Division: Division 1 First Instance

Number of paragraphs: 45

Date of last submission/s: 20 November 2020

Date of hearing: On the papers

Place: Brisbane

Solicitor for the Applicant: York Law Family Law Specialists

Solicitor for the Respondent: Broun Abrahams Burreket
ORDERS

SYC 2311 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SHEE

Applicant

AND:
MR HALE

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

18 March 2022

THE COURT ORDERS:
1.That within sixty (60) days, the Applicant, Ms Shee, shall make a contribution to the costs of the Respondent, Mr Hale, fixed in the sum of $230,000.
2.That these proceedings be certified as appropriate for Senior Counsel.

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 Shee & Hale has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:

On 18 February 2020, the Court ordered that the Applicant, Ms Shee and the Respondent, Mr Hale were in a de facto relationship from 2007 to March 2010, (which the parties had agreed was the case), but the Court was not satisfied that a de facto relationship between the parties within the meaning of the Act was created or existed for the period from mid-2012 to mid-2016, as asserted by the Applicant (see Shee & Hale [2020] FamCA 84).
Arising from that Judgment, further steps in the proceedings took place, in particular:
(a)an application for me to recuse myself was filed by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shee & Hale

Details

AGLC: Shee & Hale [2022] FedCFamC1F 169
Case: [2022] FedCFamC1F 169
Decision Date

CaseChat Overview and Summary

The case of Shee and Hale involved a dispute between Ms Shee and Mr Hale, which ultimately led to a costly four-day trial. The litigation arose from proceedings under the Family Law Act and related to the dissolution of a de facto relationship. The Family Court of Australia was tasked with resolving the legal issues and awarding costs.

The primary legal issue before the court was whether Ms Shee should contribute to the costs incurred by Mr Hale due to her unsuccessful litigation. This included considering the merits of Ms Shee's application for recusal of the judge and her decision to discontinue the proceedings. The court also needed to determine whether Ms Shee's limited financial resources justified any cost orders against her.

The court found that Ms Shee's decision to counter-offer a settlement of $950,000 instead of accepting Mr Hale's offer of $250,000 contributed to the costs of the trial. The court held that Ms Shee's application for recusal lacked merit and was unsuccessful. Additionally, the court considered the financial position of Ms Shee, who had approximately $1 million, most of which she intended to use to purchase a home. Despite her argument that a cost order would affect her quality of life, the court concluded that circumstances justified her making a significant contribution to the costs.

The court ordered Ms Shee to pay a specified amount towards Mr Hale's costs, reflecting the findings of the trial and the unsuccessful nature of her litigation. Ms Shee's appeal against the court's decision was also unsuccessful, with additional costs ordered against her.

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

Naturally it is a course for regret by both parties that this costly litigation proceed to trial over four days and judgment thereafter. If as Mr Hale alleges (at paragraph 34 of his affidavit), he offered Ms Shee $250,000 to settle the proceedings at 1.00pm on the first day of the hearing, she should have accepted such an offer rather than, as Mr Hale alleges, counter-offering for settlement of $950,000.conclusion I am satisfied on the findings above that circumstances exist which justify the unsuccessful Applicant, Ms Shee, making a significant contribution to the costs incurred for the trial by Mr Hale. I note the final written submissions made 17 August 2020, was in these terms:6.Given the Applicant’s limited resources in the form of about $1million which she intends to use the majority of to buy a home and the balance to fund her litigation referrable to the s.44(6), any cost order made against her will visit injustice upon her and affect her quality of living in her ageing years. The costs consequences that flow from Ms Shee pursuing this unsuccessful proceeding was a risk she seemed prepared to take, no doubt hoping to achieve a different outcome. For completeness, I observe that Ms Shee (as she was perfectly entitled to do), launched an Appeal against my decision; was represented at the Appeal by Senior Counsel and was unsuccessful, with an order for costs made against her (see Shee & Hale [2020] FamCAFC 140). Before dealing with the assessment of costs, I will now deal succinctly with the two other events which Mr Hale seeks to have a costs order in his favour.Recusal application I rely upon the earlier findings. In this application, the Applicant, Ms Shee, was wholly unsuccessful. The fact that Ms Shee says that the Application “was not a frivolous application nor did it lack merit” is best answered by reading my judgment. It lacked merit. Ms Shee was not unrepresented when she pursued her application for disqualification and she was represented by a solicitor who says he “is a specialist family law solicitor with considerable experience”. This contention (paragraph 11 of Ms Shee’s second written submissions filed 6 November 2020), appears to be made to support the submission that Mr Hale should not be entitled to engage Senior Counsel. I disagree. Mr Kirk SC was Counsel at the hearing for Mr Hale and it was, in those circumstances, perfectly appropriate for Mr Kirk SC to appear, without I note, Junior Counsel. I will deal with the assessment of costs later in this judgment. The discontinuance At paragraphs 17 to 20 of the second written submissions of Ms Shee, she sets out the reasons why she brought these proceedings to an end, despite apparently “wanting to continue.” Every litigant must undertake a “cost/benefit” analysis about pursuing litigation. I accept that the time to consider her s 44(6) Application, only referable to the de facto relationship found to exist which ended in March 2010, was after the threshold decision about a longer de facto relationship was delivered.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 2311 of 2017
Judgment of:	BAUMANN J
Date of judgment:	18 March 2022
Catchwords:	FAMILY LAW – COSTS – Where circumstances exist to justify an order for costs in respect of the unsuccessful application (heard over four days) and the unsuccessful recusal application – Parties seek that costs be fixed – Costs fixed in the sum of $230,000
Legislation:	Family Law Act 1975 (Cth), ss 44, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 12.17
Cases cited:	Krach & Krach (No. 2) [2009] FamCA 886 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Shee & Hale [2020] FamCA 84 Shee & Hale (No. 2) [2020] FamCA 494 Shee & Hale [2020] FamCAFC 140
Division:	Division 1 First Instance
Number of paragraphs:	45
Date of last submission/s:	20 November 2020
Date of hearing:	On the papers
Place:	Brisbane
Solicitor for the Applicant:	York Law Family Law Specialists
Solicitor for the Respondent:	Broun Abrahams Burreket

SYC 2311 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS SHEE Applicant
AND:	MR HALE Respondent

order made by:	BAUMANN J
DATE OF ORDER:	18 March 2022