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Sweet & Sweet (No 2)

Sweet & Sweet (No 2)

Case [2022] FedCFamC2F 1078 16 August 2022

Costs

Limitation Periods

Party/Party Costs

Unconscionable Conduct

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Sweet & Sweet (No 2) [2022] FedCFamC2F 1078

File number(s): MLC 4622 of 2021

Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment: 16 August 2022

Catchwords: FAMILY LAW – COSTS – Where the mother seeks an order for costs on an indemnity basis following the conclusion of the final parenting and property proceedings – Where the parties came to an agreement in September 2021 for the property proceedings to be resolved – Where the father withdrew his consent to resolve the property proceedings – Where the father was wholly unsuccessful in the final parenting and property proceedings – Where the father’s conduct does not justify an order for indemnity costs – Party/party costs ordered in a lump sum from date of September 2021 agreement

Legislation:
Family Law Act 1975 (Cth) ss 102NA, 117

Family Law Rules 2004 (Cth) r 19.18

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) r 12.17

Cases cited:
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

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

Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Legal Aid ACT & Westwell (2021) 62 Fam LR 546; [2021] FamCAFC 50

Moy & Pao [2022] FedCFamC1A 17

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

Prantage v Prantage (Costs) [2014] FamCA 850

Rimac and Rimac (No 2) [2022] FedCFamC1F 159

Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5

Somers & Ettridge [2020] FamCAFC 37

Stasiuk & Guild [2021] FamCAFC 62

Stoian v Fiening (Costs) [2014] FamCA 944

Sweet & Sweet [2022] FedCFamC2F 676

Division: Division 2 Family Law

Number of paragraphs: 40

Date of last submission/s: 24 June 2022

Date of hearing: On the papers

Place: Sydney

The Applicant: Litigant in person (did not participate)

Counsel for the Respondent: Ms Damon

Solicitor for the Respondent: Cahill & Rowe Family Law
ORDERS

MLC 4622 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SWEET

Applicant

AND:
MS SWEET

Respondent

order made by:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

16 August 2022

THE COURT ORDERS THAT:
1.Pursuant to r 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), within 28 days of the date of these orders, the applicant father is to pay the costs incurred by the respondent mother, in the period subsequent to 17 September 2021, in the fixed sum of $40,100.

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…

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 Sweet & Sweet (No 2)

Details

AGLC: Sweet & Sweet (No 2) [2022] FedCFamC2F 1078
Case: [2022] FedCFamC2F 1078
Decision Date

CaseChat Overview and Summary

The case Sweet & Sweet (No 2) involved Mr. Sweet (the father) and Ms. Sweet (the mother) in the Federal Circuit and Family Court of Australia. The mother sought an order for costs following the conclusion of the final parenting and property proceedings. The parties had reached an agreement in September 2021 for the property proceedings to be resolved; however, the father later withdrew his consent, leading to a continued dispute. The father was wholly unsuccessful in the final parenting and property proceedings, and the court had to decide on the appropriate legal issues regarding the costs. The court found that the father's conduct did not justify an order for indemnity costs. Instead, the court decided that party/party costs should be ordered in a lump sum from the date of the September 2021 agreement. The reasoning behind this decision was that while the father's rejection of the settlement offer was imprudent, it did not warrant indemnity costs as the agreement only related to the property proceedings, not the parenting ones. The court also considered the financial circumstances of the parties and the mother's reasonable conduct throughout the litigation. Ultimately, the court ordered that the father pay the mother's costs in a fixed sum of $40,100 within 28 days of the judgment date.

The final orders made by the court required the father to pay the costs incurred by the mother from September 2021 in a lump sum of $40,100. This decision was based on the court's assessment that while the father's actions were imprudent, they did not merit indemnity costs, and a fixed sum was more appropriate to avoid further delay and inconvenience for the mother. The court's decision was influenced by the financial and emotional burden the mother had endured due to the litigation, which she was compelled to undertake. The court's order aimed to balance the need for fairness and the avoidance of protracted litigation over costs assessment.

Orders