SIMPKIN & SMEETS - [2018] FCCA 2504

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMPKIN & SMEETS

[2018] FCCA 2504

Catchwords:
FAMILY LAW – Application in a Case by father for orders which some one (1) year later were in large part made by consent – where substantial costs had been incurred in the interim – where mother’s conduct in prolonging proceedings was detrimental to the ongoing welfare of both children – where mother exhibited flagrant disregard of Court orders – application for costs granted on indemnity basis and on party/party basis in accordance with Family Law scale.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Coshott v Spencer [2018] HCA Trans 81

Hawkins v Rowe (2012) 47 FamLR 526

London Scottish Benefit Society v Chorley (1884) 13 QBD 87

Applicant:

MR SIMPKIN

Respondent:

MS SMEETS

File Number:

BRC 4678 of 2008

Judgment of:

Judge Egan

Hearing date:

18 July 2018

Date of Last Submission:

15 August 2018

Delivered at:

Brisbane

Delivered on:

7 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr Baston

Counsel for the Respondent:

Mr Page QC

Solicitors for the Respondent:

Grays Family Law

IT IS ORDERED ON A FINAL BASIS:

That the mother pay the father’s costs of and incidental to the father’s Application in a Case filed on 4 July 2017 (excluding the costs of the appearance on 5 July 2017 fixed by order of the Court in the amount of $1,000.00) on the indemnity basis, to be assessed if not agreed.
That save and except for the costs ordered to be paid as provided for in paragraph 1 hereof, that up to and including 30 October 2017, the mother pay the father’s costs and outlays/disbursements of and incidental to the proceeding in respect of the father’s Initiating Application filed on 31 May 2017, each subsequent Application in a Case filed by either the father or the mother, and all appearances at interim hearings.
That the mother pay the father’s costs of and incidental to the proceedings subsequent to 30 October 2017 on the indemnity basis, as assessed if not agreed.
That the father’s costs as ordered in respect of paragraph 2 hereof be assessed on a party/party basis to be assessed on the Family Court scale of costs unless otherwise agreed.

IT IS NOTED that publication of this judgment under the pseudonym Simpkin & Smeets is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 4678 of 2018

MR SIMPKIN

Applicant

And

MS SMEETS

Respondent

REASONS FOR JUDGMENT

Costs Application

By Application filed on 7 June 2018, the Applicant father seeks an order that the Respondent mother pay “the Applicant’s costs of and incidental to these proceedings on an indemnity basis or alternatively on the standard basis as fixed by the Court or otherwise determined.”
That Application was supported by an affidavit of the father filed on 7 June 2018. The affidavit quantifies costs which might be ordered as payable both on a party/party basis and on an indemnity basis. There is…

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.

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Details

AGLC: SIMPKIN & SMEETS [2018] FCCA 2504
Case: [2018] FCCA 2504
Decision Date: 7 September 2018

CaseChat Overview and Summary

The parties to this proceeding were the father and the mother, who were engaged in a dispute concerning their children. The father sought orders from the court, which were largely made by consent approximately one year after the initial application. Substantial costs had been incurred during this interim period. The court was the Family Court of Australia, presided over by Egan J.

The central legal issues before the court concerned the mother's conduct in prolonging the proceedings, which was found to be detrimental to the welfare of the children. The court was required to determine whether the mother had exhibited a flagrant disregard of court orders and, consequently, whether costs should be awarded against her. The basis upon which costs should be awarded, specifically on an indemnity basis and on a party/party basis in accordance with the Family Law scale, was also a key issue.

Egan J found that the mother's actions had indeed prolonged the proceedings unnecessarily and to the detriment of the children's welfare. Her conduct was characterised as a flagrant disregard of court orders. In light of these findings, the court determined that costs should be awarded against the mother. The court ordered that the mother pay the father's costs on an indemnity basis and also on a party/party basis in accordance with the Family Law scale.

Orders