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Sprule & Mollis

Sprule & Mollis

Case [2025] FedCFamC2F 458 11 April 2025

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sprule & Mollis [2025] FedCFamC2F 458

File number(s): BRC 7049 of 2023

Judgment of: JUDGE SHOEBRIDGE

Date of judgment: 11 April 2025

Catchwords: FAMILY LAW – COSTS – Conduct of the Respondent – Imprudent Failure to Accept Offers

Legislation:
Family Law Act 1975 (Cth)

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

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

Cases cited:

Atkins & Hunt [2015] FamCAFC 66

Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160

Black and Kellner (1992) FLC 92-287

Brown & Greene [2002] FamCA 791

D & D (No 2) [2010] FamCAFC 64

Firmer & Britton [2012] FamCA 576

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

In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

In the marriage of Greedy (1982) FLC 91-250

Hadid v Lenfest Communications Inc [2000] FCA 628

Higginbotham & Robinson (1991) 103 FLR 110

Ketteman v Hansel Properties Ltd [1987] AC 189

Medlon & Medlon (No 6) [2015] FamCAFC 157

Nemeth v Nemeth (1987) FLC 91-844

Parke & the Estate of the Late A Parke (2016) 314 FLR 322; [2016] FamCAFC 248

Penfold v Penfold (1980) 144 CLR 311

Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788

Sparnon v Apand Pty Limited [1998] FCA 164

Venter & Venter (No 2) [2024] FedCFamC1F 862

Weir and Weir (1993) FLC 92-338

White v Overland [2001] FCA 1333

Division: Division 2 Family Law

Number of paragraphs: 125

Date of last submission/s: 20 December 2024

Place: Sydney in Chambers

Counsel for the Applicant: Mr James Linklater-Steele

Solicitor for the Applicant: Keating Lehn Solicitors

Counsel for the Respondent: Aspire Family Law

ORDERS

BRC 7049 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SPRULE

Applicant

AND:
MS MOLLIS

Respondent

ORDER MADE BY:

JUDGE SHOEBRIDGE

DATE OF ORDER:

11 APRIL 2025

THE COURT ORDERS THAT:
1.Pursuant to s 117(2) of the Family Law Act 1975 (Cth) (“the Act”), the Respondent is to pay the Applicant the costs of and incidental to the proceedings fixed in the amount of $84,632 within 60 days of the date of these Orders.
2.In the event the Respondent neglects, refuses or fails to pay the costs so ordered within 60 days from the date of this Order, interest shall accrue on any outstanding balance in accordance with the provisions of the Act.
3.From the date of this Order, the sum of $84,632 (or such portion of it as remains unpaid), together with any interest is hereby declared to be a debt owing by Respondent to the Applicant.

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…

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: Sprule & Mollis [2025] FedCFamC2F 458
Case: [2025] FedCFamC2F 458
Decision Date: 11 April 2025

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Sprule, the applicant, brought proceedings against Ms Mollis, the respondent, concerning family law matters. The primary issue was the allocation of costs pursuant to section 117(2) of the Family Law Act 1975, following a protracted litigation process where the respondent's conduct was found to be imprudent, specifically her failure to accept reasonable offers that could have led to an earlier resolution of the matter.

The court was required to assess the merits of the respondent's conduct and determine if her failure to accept offers justified an order for costs against her. The court considered the principle that parties should act reasonably and fairly in their litigation conduct, particularly in family law cases where the welfare of any children involved is paramount. The applicant argued that the respondent's refusal to accept reasonable offers led to unnecessary delays and increased costs, which should be borne by her. The respondent, on the other hand, contended that her decisions were made in the best interest of the parties involved.

In its reasoning, the court found that the respondent's conduct was indeed imprudent, as she had failed to accept offers that were reasonable under the circumstances. The court held that such conduct warranted an order for costs against the respondent. The court emphasised the importance of parties considering offers realistically and the impact of their decisions on the proceedings' duration and cost. Consequently, the court ordered the respondent to pay the applicant $84,632 within 60 days, with interest accruing on any unpaid balance. The court also declared the sum, including interest, to be a debt owed by the respondent to the applicant if payment was not made within the specified timeframe.

Orders

Orders of the court

BRC 7049 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR SPRULE

Applicant

AND:

MS MOLLIS

Respondent

ORDER MADE BY:

JUDGE SHOEBRIDGE

DATE OF ORDER:

11 APRIL 2025

THE COURT ORDERS THAT:

1. Pursuant to s 117(2) of the Family Law Act 1975 (Cth) (“the Act”), the Respondent is to pay the Applicant the costs of and incidental to the proceedings fixed in the amount of $84,632 within 60 days of the date of these Orders.

2. In the event the Respondent neglects, refuses or fails to pay the costs so ordered within 60 days from the date of this Order, interest shall accrue on any outstanding balance in accordance with the provisions of the Act.

3. From the date of this Order, the sum of $84,632 (or such portion of it as remains unpaid), together with any interest is hereby declared to be a debt owing by Respondent to the Applicant.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Sprule & Mollis [2025] FedCFamC2F 458

Cases Citing This Decision

No citing cases yet.

Cases Cited

Venter & Venter (No 2) [2024] FedCFamC1F 862
Citation 1 (Para 12)

…In Venter & Venter (No 2) [2024] FedCFamC1F 862 (“ Venter ”), Carew J summarised the law in relation to costs thus: [29]Generally, in this Court, each party bears their own costs unless there are circumstances that justify a costs order having regard to the matters contained in s 117 of the Family Law Act 1975 (Cth) (“t…
Parke & The Estate of the Late A Parke [2016] FamCAFC 248
Citation 2

…] AC 189 Medlon & Medlon (No 6) [2015] FamCAFC 157 Nemeth v Nemeth (1987) FLC 91-844 Parke & the Estate of the Late A Parke (2016) 314 FLR 322; [2016] FamCAFC 248 Penfold v Penfold (1980) 144 CLR 311 Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788 Sparnon v Apand Pty Limited [1998] FCA 164 Venter & Vent…
Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157
Citation 3 (Para 7)

…swer of itself to an application for costs (see Atkins & Hunt [2015] FamCAFC 66 at [28] in relation to security for costs; see Medlon & Medlon (No 6) [2015] FamCAFC 157 at [23] in relation to indemnity costs; and D & D (No 2) [2010] FamCAFC 64 at [21]). The conduct of the parties in relation to the proceedings…
Atkins & Hunt (Security for Costs) [2015] FamCAFC 66
Citation 4 (Para 7)

…acity to meet a costs order. In any event impecuniosity is, of course, not a complete answer of itself to an application for costs (see Atkins & Hunt [2015] FamCAFC 66 at [28] in relation to security for costs; see Medlon & Medlon (No 6) [2015] FamCAFC 157 at [23] in relation to indemnity costs; and D & D (No 2) [20…
Firmer and Britton [2012] FamCA 576
Citation 5 (Para 22)

…Kent J in Firmer & Britton [2012] FamCA 576 said at [12]: The Court has limited resources and parties need to be mindful that there is always the prospect, if justifying circumstances exist, that they litigate at their peril in terms of the potential for an Order for costs after an offer.…
D & D (Costs) (No 2) [2010] FamCAFC 64
Citation 6 (Para 7)

…66 at [28] in relation to security for costs; see Medlon & Medlon (No 6) [2015] FamCAFC 157 at [23] in relation to indemnity costs; and D & D (No 2) [2010] FamCAFC 64 at [21]). The conduct of the parties in relation to the proceedings…
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243
Citation 7 (Para 17)

…ust, quick and equitable resolution of the real issues in dispute (see Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243 at 161).…
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Citation 8 (Para 7)

…In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.…
Sony Entertainment (Australia) Ltd v Smith [2004] FCA 1315
Citation 9 (Para 6)

…is appropriate for the Court to apply a “much broader brush” than would be applied on a taxation (see Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788 at [197]–[200]; Hadid at [35]).…
Browne v Green [2002] FamCA 791
Citation 10 (Para 24)

…In Brown & Greene [2002] FamCA 791 (“ Brown & Greene ”), the Full Court of Kay, Coleman & Warnick JJ noted at 57: We think that whilst s 117(2A) does not provide any direct guidance to where weight should be given in any one particular case, it is very important for the Court to give proper consideration to written…
Harrison v Schipp [2002] NSWCA 213
Citation 11

…FC 64 Firmer & Britton [2012] FamCA 576 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 In the marriage of Greedy (1982) FLC 91-250 Hadid v Lenfest Communications Inc [2000] FCA 628 Higginbotham & Robinson (1991) 103 FLR 110 Ketteman v Hansel…
White v Overland [2001] FCA 1333
Citation 12 (Para 19)

…The Court in White v Overland [2001] FCA 1333 at [4] outlined the positive obligation to give proper notice of claims as being a matter fundamental to the proper conduct of litigation: However, by way of general principle I would simply like to make perfectly plain my view that in the efficient and proper conduct…
Hadid v Lenfest Communications Inc [2000] FCA 628
Citation 13 (Para 5)

…rties and, potentially, further proceedings (see Sparnon v Apand Pty Limited [1998] FCA 164 per Von Doussa J at 4; Hadid v Lenfest Communications Inc [2000] FCA 628 (“ Hadid ”)).…
Sparnon v Apand Pty Ltd [1998] FCA 164
Citation 14 (Para 5)

…s in taxable form would visit yet further significant expense upon the parties and, potentially, further proceedings (see Sparnon v Apand Pty Limited [1998] FCA 164 per Von Doussa J at 4; Hadid v Lenfest Communications Inc [2000] FCA 628 (“ Hadid ”)).…
Easterday, Clark Ervin v Australian Securities Commission [1996] FCA 793
Citation 15 (Para 4)

…If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court” ( Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, at [24] cited in Idaport [sic] at [9]). The process does not “by its very nature ... envisage that a process similar to that involved in a traditional t…
Colgate-Palmolive Co v Cussons Pty ltd [1993] FCA 801
Citation 16 (Para 30)

…ing costs on an indemnity basis. The principles were stated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225. [50]The Full Court went on to restate the principles from Colgate-Palmolive in the following terms: (a)the Court ought not to depart from the rule that costs be order…
Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536
Citation 17 (Para 30)

…basis and ordering costs on an indemnity basis. The principles were stated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225. [50]The Full Court went on to restate the principles from Colgate-Palmolive in the following terms: (a)the Court ought not to depart from the rule…
Beach Petroleum NL v Johnson [1993] FCA 392
Citation 18 (Para 4)

…In Venter , Carew J said: [52]In Parke & the Estate of the Late A Parke , Murphy J quoted with approval the observations made by Einstein J in Idoport Pty Ltd v National Australia Bank Limited, Idoport Pty Ltd v Donald Robert Argus when that court was considering an analogous provision to that conta…
Penfold v Penfold [1980] HCA 4
Citation 19 (Para 15)

…n applicant for costs bears no “additional or special onus” other than the establishment of “justifying circumstances” (see Penfold v Penfold (1980) 144 CLR 311 at 315 (“ Penfold ”).…
[1987] AC 189 [1987] AC 189
Citation 20 (Para 18)

…In Ketteman v Hansel Properties Ltd [1987] AC 189 at 220, Lord Griffiths spoke of the “pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently”.…
Ltd v Smith (1965) 1 WLR 855
Citation 21 (Para 6)

…of costs it is appropriate for the Court to apply a “much broader brush” than would be applied on a taxation (see Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788 at [197]–[200]; Hadid at [35]).…

Legislation Cited

Family Law Act 1975 (Cth) 68(4), 69(4)(d)
3 mentions (from Para 12)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
1 mention (from Para 12)

File number(s):	BRC 7049 of 2023
Judgment of:	JUDGE SHOEBRIDGE
Date of judgment:	11 April 2025
Catchwords:	FAMILY LAW – COSTS – Conduct of the Respondent – Imprudent Failure to Accept Offers
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia Act 2021 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Atkins & Hunt [2015] FamCAFC 66 Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited & Ors [2008] NSWCA 243 Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 Black and Kellner (1992) FLC 92-287 Brown & Greene [2002] FamCA 791 D & D (No 2) [2010] FamCAFC 64 Firmer & Britton [2012] FamCA 576 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 In the marriage of Greedy (1982) FLC 91-250 Hadid v Lenfest Communications Inc [2000] FCA 628 Higginbotham & Robinson (1991) 103 FLR 110 Ketteman v Hansel Properties Ltd [1987] AC 189 Medlon & Medlon (No 6) [2015] FamCAFC 157 Nemeth v Nemeth (1987) FLC 91-844 Parke & the Estate of the Late A Parke (2016) 314 FLR 322; [2016] FamCAFC 248 Penfold v Penfold (1980) 144 CLR 311 Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788 Sparnon v Apand Pty Limited [1998] FCA 164 Venter & Venter (No 2) [2024] FedCFamC1F 862 Weir and Weir (1993) FLC 92-338 White v Overland [2001] FCA 1333
Division:	Division 2 Family Law
Number of paragraphs:	125
Date of last submission/s:	20 December 2024
Place:	Sydney in Chambers
Counsel for the Applicant:	Mr James Linklater-Steele
Solicitor for the Applicant:	Keating Lehn Solicitors
Counsel for the Respondent:	Aspire Family Law

BRC 7049 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR SPRULE Applicant
AND:	MS MOLLIS Respondent

ORDER MADE BY:	JUDGE SHOEBRIDGE
DATE OF ORDER:	11 APRIL 2025