Shipman & Shipman (No 2)

Case [2023] FedCFamC1F 1080

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Shipman & Shipman (No 2) [2023] FedCFamC1F 1080

File number(s): SYC 8192 of 2018
Judgment of: ALTOBELLI J
Date of judgment: 15 December 2023
Catchwords: FAMILY LAW – COSTS – Where the husband seeks indemnity costs – Where the wife opposes the application and seeks that each party pay their own costs – Order for each party to pay their owns costs.   
Legislation:

Evidence Act 1995 (Cth) s 128

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:

Anison & Anison (2019) FLC 93-908; [2019] FamCAFC 108

Bhatt & Acharya (Costs) [2017] FamCAFC 71

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

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish & Another (2005) 33 Fam LR 123; [2005] FamCA 158

In the Marriage of Higginbotham (1991) FLC 92-209; [1991] FamCA 5

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

Lenova & Lenova (Costs) [2011] FamCAFC 141

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

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

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

Pennisi v Pennisi (1997) FLC 92-774; [1997] FamCA 39

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

Shipman & Shipman [2023] FedCFamC1F 152
Division: Division 1 First Instance
Number of paragraphs: 54
Date of last submission/s: 21 November 2023
Date of hearing: In Chambers
Place: Sydney
Solicitor for the Applicant: Newnhams Solicitors
Solicitor for the Respondent: Barkus Doolan Winning

ORDERS

SYC 8192 of 2018

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

MR SHIPMAN

Applicant
AND:

MS SHIPMAN

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS THAT:

1.The Applicant Husband’s Application in a Proceeding filed 18 May 2023 is dismissed.

2.The Respondent Wife’s Response to Application in a Proceeding filed 27 September 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).

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 Shipman & Shipman has been approved pursuant to s 121(9)(g) of the Family Law…

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AGLC
Shipman & Shipman (No 2) [2023] FedCFamC1F 1080
Case
[2023] FedCFamC1F 1080
Decision Date

CaseChat Overview and Summary

The case of Shipman & Shipman (No 2) involved a dispute between a husband and wife concerning costs in family law proceedings. The husband sought indemnity costs from the wife, arguing that her conduct had significantly impacted the outcome of the proceedings. In contrast, the wife opposed the husband's application and sought for each party to bear their own costs, including those related to the costs application itself. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the husband's conduct justified an order for indemnity costs and whether the wife should be ordered to pay the husband's costs incidental to the costs application. The court considered the well-established legal principles regarding costs in family law proceedings, particularly the general presumption under section 117(1) of the Family Law Act 1975 (Cth) that each party should bear their own costs. The court also examined whether the circumstances of the case warranted a deviation from this presumption under section 117(2) of the Act.

The court found that there was insufficient evidence to support the husband's claim that the wife's conduct had a significant impact on the outcome of the proceedings, and thus, indemnity costs were not warranted. The court also concluded that the combined circumstances of the case did not justify an order for the wife to pay the husband's costs incidental to the costs application. Therefore, the court ruled that each party should bear their own costs, both for the period between 7 September 2021 and 8 September 2022, and for the costs of the present application.

The court dismissed all applications and ordered that each party pay their own costs, including those relating to the costs application. This decision upheld the principle that each party should bear their own costs unless there are exceptional circumstances that justify an order otherwise.

Orders

Orders of the court

SYC 8192 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SHIPMAN

Applicant

AND:

MS SHIPMAN

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

15 DECEMBER 2023

THE COURT ORDERS THAT:

1. The Applicant Husband’s Application in a Proceeding filed 18 May 2023 is dismissed.

2. The Respondent Wife’s Response to Application in a Proceeding filed 27 September 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).

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

The wife opposes the application for costs and seeks for the husband to pay her costs incidental to the application as agreed in writing or as assessed. The precise orders sought are as follows:1. The Applicant Husband's Application in a Proceeding filed 18 May 2023 be dismissed 2. The Applicant Husband pay the Respondent Wife's costs of and incidental to the Application in a Proceeding filed 18 May 2023 as agreed in writing, or failing agreement within 14 days from the date of these Orders, as assessed. BACKGROUND This matter was listed for final hearing between 5–8 September 2022 regarding property matters only. My reasons for judgment were provided on 16 March 2023: Shipman & Shipman [2023] FedCFamC1F 152 (“my reasons for judgment”). Orders were made on the same day requiring the parties to provide the Court with orders which effected my reasons for judgment, and final orders were made on 20 April 2023 in accordance with a joint Minute of Order provided by the parties. The husband seeks that the wife pay his costs of the proceedings as and from 7 September 2021, at which date he filed a Second Further Amended Initiating Application (Annexure F of the husband’s affidavit filed 18 May 2023) and parenting proceedings were resolved by consent (Annexure E of the husband’s affidavit filed 18 May 2023), until the conclusion of the final hearing on 8 September 2022. The wife seeks for each party to bear their own costs of the proceedings and that the husband pay her costs incidental to this application.PRESENT APPLICATION Orders were made on 5 September 2023 providing for the wife to file and serve a Response to the husband’s Application in a Proceeding filed 18 May 2023 as well as any affidavit material in support. Further orders were made for both parties to file and serve written submissions. In support of his case, the husband relies upon the following material:(a)Application in a Proceeding filed 18 May 2023;(b)His affidavit filed 18 May 2023;(c)Written submissions filed 17 October 2023;(d)His affidavit filed 17 October 2023;(e)Written submissions in reply filed 21 November 2023; and(f)His affidavit filed 21 November 2023. In support of her case, the wife relies upon the following material:(a)Response to an Application in a Proceeding filed 27 September 2023;(b)Her affidavit filed 27 September 2023;(c)Her affidavit filed 14 November 2023; and(d)Written submissions filed 15 November 2023.LEGAL PRINCIPLES The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that:If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As stated earlier in these reasons, the Court finds that there is no evidence supporting the husband’s contention that the wife’s conduct had a significant impact on the outcome of the proceedings, and this conduct thus has little weight in the context of the present costs application. Indemnity costs will not be awarded. CONCLUSION For these reasons, I am not satisfied it is in the interests of justice for an order for costs to be made in favour of either party. 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 period between 7 September 2021 and 8 September 2022. In relation to the costs of the present costs application, the Court also considers that s 117(1) applies. All applications are dismissed.

Ratio Decidendi

Legal Principle Established

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