FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Szekely & Szekely (No 3) [2024] FedCFamC2F 227
File number(s): NCC 68 of 2022 Judgment of: JUDGE KEARNEY Date of judgment: 23 February 2024 Catchwords: FAMILY LAW – Costs – should a costs order be made relating to protracted substantive proceedings – type and quantum – where conduct of the mother supported the overarching purpose and conduct of the father did not – failure to comply with previous orders including those for costs - satisfied that party and party costs should be paid by father – compensatory and justified Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 12
Cases cited: Alston & Alston [2021] FedCFamC1A 96
Browne & Green [2002] FamCA 791; (2002) 29 Fam LR 428; (2002) FLC 93-115
Cassidy v Murray [1995] FamCA 91; (1995) 19 Fam LR 492; (1995) FLC 92-633
Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536; (1993) 46 FCR 225
Cross & Beaumont [2008] FamCAFC 68; (2008) 39 Fam LR 389
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish [2005] FamCA 158; (2005) 33 Fam LR 123
In the Marriage of Dickson (No 2) [1999] FamCA 768; (1999) 25 Fam LR 79
Ingles & Ingles [2019] FamCA 514
Kohan and Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45
Limousin v Limousin (Costs) [2007] FamCa 1178; (2007) 38 Fam LR 478
Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) 54 Fam LR 1; (2015) FLC 93-664
Munday v Bowman (1997) 22 Fam LR 32; FLC 92-784
Nada and Nettle (Costs) [2014] FamCAFC 207
Pavlic & Pavlic (No 2) [2023] FedCFamC1A 97
Penfold v Penfold [1980] HCA 4; (1980) 5 Fam LR 579; (1980) FLC 90-800
Pennisi & Pennisi [1997] FamCA 39; (1997) 22 Fam LR 249; (1997) FLC 92-774
Prantage & Prantage (Costs) [2014] FamCA 850
Sfakianakis & Sfakianakis [2019] FamCAFC 54; (2019) 59 Fam LR 419
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447
Yunghanns v Yunghanns [2000] FamCA 681; (2000) 26 Fam LR 331; (2000) FLC 93-029
Division: Division 2 Family Law Number of paragraphs: 61 Date of hearing: Determined on the papers Place: Newcastle Solicitor for the Applicant: self-represented Solicitor for the Respondent: self-represented ORDERS
NCC 68 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SZEKELY
Applicant
AND: MR SZEKELY
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)…
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- Case
- [2024] FedCFamC2F 227
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included whether the mother's conduct supported the overarching purpose of the Family Law Act 1975 (Cth) and whether the father's conduct did not. Another issue was whether the parties had complied with previous orders, including those for costs. The court also had to determine the appropriateness of awarding party and party costs to the mother and whether such an order was compensatory and justified.
The court found that the mother's conduct was aligned with the overarching purpose of the Family Law Act, while the father's conduct was not. The mother's actions were seen as constructive and in the best interests of the children, whereas the father had failed to comply with previous court orders, including those related to costs. As a result, the court ruled that the father should bear the costs incurred by the mother, amounting to $13,608.27. The order was considered compensatory and justified, given the father's non-compliance and the disparity in conduct between the parties.
The court made several orders, including allowing both parties to read and rely on annexures to their affidavits, permitting the father to rely on a late-filed affidavit of service, and mandating that the father pay the specified sum to the mother by a certain date. The mother's broader application for costs was dismissed, and the form of the order was subject to entry in the court’s records.
Orders
Orders of the court
NCC 68 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SZEKELY
Applicant
AND:
MR SZEKELY
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1. Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Div 1 Rules’), as may be applicable, the applicant, MS SZEKELY (‘the mother’) is relieved from the effects of r 8.15(3)(e) of the Div 1 Rules and item 7, Table 2.1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) so as to permit her to read and rely upon any annexures to her respective affidavits.
2. The respondent, MR SZEKELY (‘the father’) is relieved from the effects of r 8.15(3)(e) of the Div 1 Rules and item 7, Table 2.1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) so as to permit him to read and rely upon any annexures to his respective affidavits.
3. Pursuant to r 1.33 of the Div 1 Rules the father is permitted to rely upon his late-filed Affidavit of Service filed 14 February 2024.
4. By 22 March 2024, the father shall pay the costs of the mother fixed in the sum of $13,608.27 (‘the sum’), with such payment to be made in accordance with mother’s written direction which can be communicated electronically to the father via the email address specified in his service address …@...
5. The mother’s application in a proceeding for costs is otherwise 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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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