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Trayden & Trayden (No 2)

Trayden & Trayden (No 2)

Case [2022] FedCFamC2F 329 24 March 2022

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trayden & Trayden (No 2) [2022] FedCFamC2F 329

File number(s): CAC 2262 of 2017

Judgment of: JUDGE W J NEVILLE

Date of judgment: 24 March 2022

Catchwords: FAMILY LAW– PARENTING – application for costs filed after delivery of final judgment – where the Mother seeks the Father pay her costs of the substantive proceedings in the fixed sum of $140,000, and although being a sizable amount, it is a modest proportion of the Mother's overall costs – where the conduct of the Father throughout the proceedings is relevantly considered – where the orders sought by the Father in the substantive proceedings were not in the best interest of the children - where the Mother made multiple very reasonable offers of settlement notably in relation to property Orders – where found appropriate to make special costs order - Order made for costs as sought by the Mother

Legislation: Family Law Act 1975 (Cth) s. 60CC(3), 75(2)

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Hawkins & Roe [2012] FamCAFC 77

Leslighter v Fitzgerald-Stevens (2013) 47 Fam LR 384

Stephens v Stephens (2011) 44 Fam LR 117

Wrenstead & Eades (2016) FLC 93-697

Division: Division 2 Family Law

Number of paragraphs: 24

Date of last submission/s: 31 January 2022

Date of hearing: 29 & 30 October 2020 – principal hearing on parenting and property

Place: Canberra

Solicitor for the Applicant: Dobinson Davey Clifford Simpson

Solicitor for the Respondent: Neilan Stramandinoli Family Law

ORDERS

CAC 2262 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TRAYDEN
Applicant

AND:
MR TRAYDEN
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

24 MARCH 2022

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Pursuant to Section 117(2) of the Family Law Act 1975 (Cth), the Respondent pay the Applicant’s costs of, and incidental to, the substantive proceedings and the Application in a Proceeding filed 22 November 2021, fixed in the sum of $145,000.00 by no later than 31 May 2022.

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 Trayden & Trayden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

On 3^rd November 2021, I delivered reasons and…

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 Trayden & Trayden (No 2)

Details

AGLC: Trayden & Trayden (No 2) [2022] FedCFamC2F 329
Case: [2022] FedCFamC2F 329
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the parties, Trayden and Trayden, have been involved in a long-standing dispute concerning both parenting and property matters. The Court was required to decide on the appropriate costs to be awarded to the Mother for the substantive proceedings and the Application in a Case. The key legal issues revolved around whether the Father's conduct justified an order for indemnity costs, given the Mother's multiple offers of settlement and the Father's refusal to accept any of these offers. The Court considered the statutory provisions under the Family Law Act 1975 (Cth) and relevant case law, including Colgate-Palmolive Co v Cussons Pty Ltd and Hawkins & Roe.

The Court reasoned that the Father's conduct throughout the proceedings was unreasonable and antagonistic, especially his fixation on a single incident of violence at separation and his insistence on parenting orders that were not supported by expert evidence. The Mother had made numerous reasonable offers of settlement, particularly in relation to property matters, which the Father had refused. The Court found that the Mother was wholly successful in her claims, while the Father was wholly unsuccessful. The Father's financial circumstances, although strained, were largely a result of his own actions in refusing reasonable offers of settlement and pursuing an untenable position in the litigation. The Court concluded that the circumstances justified an order for costs in the Mother's favour, awarding her $145,000 for the substantive proceedings and the Application in a Case. The Court emphasised that the Father's refusal to accept the Mother's offers of settlement led to unnecessary costs for both parties. The order for costs was made to reflect the Father's unreasonable conduct and the Mother's reasonable efforts to resolve the matter amicably.

Orders