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Stokerton & Stokerton (No 3)

Stokerton & Stokerton (No 3)

Case [2023] FedCFamC1F 821 27 September 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stokerton & Stokerton (No 3) [2023] FedCFamC1F 821

File number(s): MLC 1922 of 2020

Judgment of: GILL J

Date of judgment: 27 September 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for costs – Where the mother failed to participate in attempts to settle the matter or in the parenting proceedings – Where the financial circumstances of the parties are limited – Costs awarded on an indemnity basis

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248

Idoport Pty Ltd v National Australia Bank Ltd & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23

Munday v Bowman (1997) 22 FamLR 321

Quickley & Pelissier [2016] FamCAFC 124

Division: Division 1 First Instance

Number of paragraphs: 38

Date of hearing: 8 September 2023

Place: Canberra

Solicitor for the Applicant: Hope Earle Lawyers

Solicitor for the First Respondent: Litigant In-Person (did not participate)

Solicitor for the Second Respondent: AFL Kordos Lawyers
ORDERS

MLC 1922 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR STOKERTON

Applicant

AND:
MS C STOKERTON

First Respondent

MS D STOKERTON

Second Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

27 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.Ms C Stokerton pay to Ms D Stokerton costs on an indemnity basis fixed in the sum of $35,237.60 in relation to the parenting proceedings of 17 July 2023.
2.Ms C Stokerton pay to Mr Stokerton costs on an indemnity basis fixed in the sum of $30,673.00 incurred in relation to the parenting proceedings from 5 June 2023 to 17 July 2023.
3.Ms C Stokerton is liable to pay costs under Orders (1) and (2) within 30 days of the sale of the family home as provided for in the property orders dated 21 August 2023.
4.Mr Stokerton’s application seeking costs in relation to Ms C Stokerton’s application for an adjournment on 17 July 2023 is dismissed.
5.Mr Stokerton’s application seeking costs in relation to the Interim Defended Hearing on 23 March 2021 is dismissed.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J

The father filed an…

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 Stokerton & Stokerton (No 3)

Details

AGLC: Stokerton & Stokerton (No 3) [2023] FedCFamC1F 821
Case: [2023] FedCFamC1F 821
Decision Date: 27 September 2023

CaseChat Overview and Summary

The matter of Stokerton & Stokerton (No 3) involved Mr Stokerton, the applicant, and Ms C Stokerton and Ms D Stokerton, the respondents, with proceedings before the Family Court of Australia. The case revolved around an application for costs, focusing on the participation of the mother in settlement attempts and the parenting proceedings. The court had to decide the appropriate allocation of costs given the financial limitations of the parties and the mother's lack of participation in the proceedings.

The legal issues included whether the mother's non-participation in settlement attempts and parenting proceedings warranted an indemnity costs order against her. Additionally, the court had to assess whether the father's previous unsuccessful applications for costs should affect the current decision. The court needed to balance the default position of each party bearing their own costs with the specific circumstances of this case.

In its reasoning, the court held that, despite the mother's lack of participation, the default position of each party bearing their own costs should generally be maintained. However, given the father's successful application for costs in the parenting proceedings from 5 June 2023 to the hearing date of 17 July 2023, an indemnity costs order was appropriate. The court awarded the father $30,673 in costs and dismissed the father's other applications for costs.

The court ordered that Ms C Stokerton pay Ms D Stokerton $35,237.60 in costs for the parenting proceedings and Mr Stokerton $30,673 for costs incurred from 5 June 2023 to 17 July 2023. Both payments were to be made within 30 days of the sale of the family home. The father's applications for costs related to an adjournment application and an interim defended hearing were dismissed.

Orders

Orders of the court

MLC 1922 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR STOKERTON

Applicant

AND:

MS C STOKERTON

First Respondent

MS D STOKERTON

Second Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

27 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. Ms C Stokerton pay to Ms D Stokerton costs on an indemnity basis fixed in the sum of $35,237.60 in relation to the parenting proceedings of 17 July 2023.

2. Ms C Stokerton pay to Mr Stokerton costs on an indemnity basis fixed in the sum of $30,673.00 incurred in relation to the parenting proceedings from 5 June 2023 to 17 July 2023.

3. Ms C Stokerton is liable to pay costs under Orders (1) and (2) within 30 days of the sale of the family home as provided for in the property orders dated 21 August 2023.

4. Mr Stokerton’s application seeking costs in relation to Ms C Stokerton’s application for an adjournment on 17 July 2023 is dismissed.

5. Mr Stokerton’s application seeking costs in relation to the Interim Defended Hearing on 23 March 2021 is dismissed.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this instance there should be no departure from the starting position that each party bear his or her own costs. Whilst it is true that the mother failed to participate in this aspect of the proceedings, the matters pursued by the father have included claims for costs where he has not been successful. On balance the default position should be maintained.Conclusion regarding the father’s application The father will be awarded costs, on an indemnity basis, of the parenting proceedings from 5 June 2023 to the hearing date of 17 July 2023 fixed in the sum of $30,673. The father’s other costs applications are dismissed. The mother will be liable to pay the sum following the sale of the family home as provided for in the property orders.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Stokerton & Stokerton (No 3) [2023] FedCFamC1F 821

Cases Citing This Decision

No citing cases yet.

Cases Cited

Quickley & Pelissier [2016] FamCAFC 124
Citation 1 (Para 8)

…emnity costs are sought, which brings further principles into play. The principles in relation to indemnity costs are set out in Quickley & Pelissier [2016] FamCAFC 124: 119.We then turn to consider whether costs should be awarded on a party/party or indemnity basis. 120.In Colgate Palmolive Co and Another v Cussons…
Madin & Palis (Costs) [2016] FamCAFC 25
Citation 2 (Para 8)

…tifying the departure should be of an exceptional kind (Kohan and Kohan (1993) FLC 92-340). 122.In the recent case of Madin & Palis (Costs) [2016] FamCAFC 25 this Court made reference to the increasing number of applications for indemnity costs and said at [23]: Finally, we take the opportunity to observe that in so…
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Citation 3 (Para 12)

…In Idoport Pty Ltd v National Australia Bank Ltd & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 Einstein J set out the principles underpinning both the reason for, and the approach to a fixed sum costs order: 9For present purposes it seems convenient to commence with a recitation of the principles wh…
Harrison v Schipp; Sony Entertainment (Aust) Ltd v Smith [2005] FCA 228
Citation 4 (Para 12)

…following ( Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199]; iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional ta…
Sony Entertainment (Australia) Ltd v Smith [2004] FCA 1315
Citation 5 (Para 12)

…s JA at para [22]; [following ( Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199]; iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in…
Harrison v Schipp [2002] NSWCA 213
Citation 6 (Para 12)

…airness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at para [22]; [following ( Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smit…
Hadid v Lenfest Communications Inc [2000] FCA 628
Citation 7 (Para 12)

…can only be fixed broadly having regard to the information before the Court”: Beach Petroleum at 124; [ In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that ... is wha…
Easterday, Clark Ervin v Australian Securities Commission [1996] FCA 793
Citation 8 (Para 12)

…se of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gro…
Colgate-Palmolive Co v Cussons Pty ltd [1993] FCA 801
Citation 9 (Para 8)

…then turn to consider whether costs should be awarded on a party/party or indemnity basis. 120.In Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 at 256, Sheppard J referred to the “settled practice” that where a court orders one party to pay another party’s costs, the order is for costs to be…
Beach Petroleum NL v Johnson [1993] FCA 392
Citation 10 (Para 12)

…the discretion: i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixi…
[1987] 1 WLR 72 [1987] 1 WLR 72
Citation 11 (Para 12)

…s sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120”; vii. In terms of the necessity for the approach taken to be logical, fair and reasonabl…
Munday v Bowman
Citation 12 (Para 9)

…The principles in Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 are also usefully discussed in Munday v Bowman (1997) 22 FamLR 321. In that judgment, Holden CJ extracted a series of circumstances which have been thought to warrant the exercise of the discretion to award costs on an indemnity basis…

Legislation Cited

Family Law Act 1975 (Cth) 117
2 mentions (from Para 5)

File number(s):	MLC 1922 of 2020
Judgment of:	GILL J
Date of judgment:	27 September 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Application for costs – Where the mother failed to participate in attempts to settle the matter or in the parenting proceedings – Where the financial circumstances of the parties are limited – Costs awarded on an indemnity basis
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 Idoport Pty Ltd v National Australia Bank Ltd & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23 Munday v Bowman (1997) 22 FamLR 321 Quickley & Pelissier [2016] FamCAFC 124
Division:	Division 1 First Instance
Number of paragraphs:	38
Date of hearing:	8 September 2023
Place:	Canberra
Solicitor for the Applicant:	Hope Earle Lawyers
Solicitor for the First Respondent:	Litigant In-Person (did not participate)
Solicitor for the Second Respondent:	AFL Kordos Lawyers

MLC 1922 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR STOKERTON Applicant
AND:	MS C STOKERTON First Respondent MS D STOKERTON Second Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	27 SEPTEMBER 2023