Siddell & Siddell (No 2) - [2022] FedCFamC2F 1522

Federal Circuit and Family Court of Australia
(DIVISION 2)
Siddell & Siddell (No 2) [2022] FedCFamC2F 1522

File number(s): ADC 1336 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 9 November 2022

Catchwords: FAMILY LAW – application for costs – assessment of legal principles applicable to costs – proceedings relating to release from Harman Undertaking

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 1, ch 12, rr 4.01, 12.08, 12.13, 12.17

Cases cited:
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557

Jensen & Jensen (1983) FLC 91-26

Division: Division 2 Family Law

Number of paragraphs: 45

Date of hearing: In Chambers on the papers

Place: Adelaide

Counsel for the Applicant:
Mr Werner

Solicitor for the Applicant: O’Keefe Schroeder Lawyers

Counsel for the Respondent: Mr Mort

Solicitor for the Respondent: In person
ORDERS

ADC 1336 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SIDDELL

Applicant

AND:
MS SIDDELL

Respondent

order made by:

JUDGE BROWN

DATE OF ORDER:

9 nOVEMBER 2022

THE COURT ORDERS THAT:
1.The Applicant do pay to the Respondent’s costs in the sum of TWO THOUSAND FOUR HUNDRED AND SEVENTY FIVE DOLLARS ($2,475.00).

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 a pseudonym Siddell & Siddell (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

These reasons for judgment relate to competing applications for costs, which the parties concerned have requested be dealt with on the papers in order to save further costs.
On 31 August 2022, I determined that Mr Siddell could utilise court documents and other records subpoenaed by him, relating to family law proceedings, instituted by him against his former wife, Ms Siddell, in criminal proceedings against him in the Victorian Magistrates Court.
In the jargon of lawyers, Mr Siddell’s application concerned what is called a Harman Undertaking. By way of background, Mr Siddell and Ms Siddell had been engaged in family law proceedings, before me, in City O, regarding the division of their property and parenting arrangements for their children.
As a consequence of these proceedings, each of them prepared affidavits, which were used in the proceedings before me. A central evidentiary issue, in those…

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 Siddell & Siddell (No 2)

Details

AGLC: Siddell & Siddell (No 2) [2022] FedCFamC2F 1522
Case: [2022] FedCFamC2F 1522
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Brown delivered a judgment on 9 November 2022 in the case of ADC 1336 of 2020, Siddell & Siddell (No 2). The case involved an application for costs, where the parties had agreed to have their dispute resolved on the papers to avoid additional costs. The proceedings related to a request by Mr Siddell to be released from an implied undertaking, also known as a Harman Undertaking, to use specific court documents in criminal proceedings against him. The application was heard urgently due to the impending committal hearing, which prevented the parties from resolving the matter consensually.

The legal issues before the court were whether the late filing of Mr Siddell's application warranted an order for costs in favour of Ms Siddell and, if so, what the appropriate quantum of such costs should be. The court considered the financial circumstances of the parties, their conduct during the proceedings, and the other relevant factors outlined in the Family Law Act 1975 (Cth). Judge Brown concluded that the late notice of the application caused the proceedings to become more expensive than necessary and that Ms Siddell had demonstrated a sufficient circumstance to justify a departure from the normal rule that parties in family law proceedings must bear their own costs.

In light of the above, the court ordered that Mr Siddell pay one half of Ms Siddell's costs as sought, which amounted to $2,475.00. The court exercised its discretion under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to make this order, taking into account the overall circumstances of the case, including the fact that Mr Siddell obtained the order he desired.

Orders