Vaughan & Vaughan
[2024] FedCFamC1F 663
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vaughan & Vaughan [2024] FedCFamC1F 663
File number(s): ADC 5154 of 2022 Judgment of: BAUMANN J Date of judgment: 18 September 2024 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Costs – Application for Review partially upheld Legislation: Family Law Act 1975 (Cth) s 117 Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 18 September 2024 Place: Brisbane Counsel for the Applicant: Mr K Tredrea Solicitor for the Applicant: Camatta Lempens Pty Ltd Counsel for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Appearance excused ORDERS
ADC 5154 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VAUGHAN
Applicant
AND: MR VAUGHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS:
1.That Order 1 of the Order dated 24 July 2024 be discharged.
2.That the Respondent husband shall pay to the Applicant wife in respect of the failed Conciliation Conference that took place on 24 July 2024, costs fixed in the sum of $2,500.
3.That the husband shall pay to the wife in respect the Application for Review filed 14 August 2024 and listed for hearing on 18 September 2024, costs fixed in the sum of $2,500.
4.That in respect of the combined Orders for costs of $5,000 payable by the husband to the wife, unless otherwise agreed, those funds shall be paid by the husband from any proceeds of sale he receives from the sale of the former matrimonial home.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaughan & Vaughan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The Court is seized today with a Review Application brought by Mr Vaughan who is the Respondent husband/father in ongoing litigation in the Adelaide registry of the Federal Circuit and Family Court of Australia (Division 1) as a result of proceedings having been transferred to this Court by Judge Dickson on 8 August 2024.
The Review Application relates to an Order made by Senior Judicial Registrar Friend on 24 July 2024.
As I explained to the husband, who is articulate but is not legally qualified, a hearing of the Review Application is a hearing de novo. It is not an appeal against the decision of the Registrar.
This Review Application relates to a cost order, and as a result, no significant principles apply that would prevent the Court from giving reasons in short form.
After the Court has determined the Application, the Court will hear from the parties in relation to any costs flowing from today’s application.
COSTS IN RELATION TO THE COURT EVENT OF 24 JULY 2024
The salient facts that guide the exercise of discretion under s 117 of the Family Law Act1975 (Cth) (“the Act”), which is the section dealing with costs, as I have explained to the husband, are that:
(a)on 27 March 2024, a Judge of Division 2 of the Federal Circuit and Family Court of Australia in the proceedings made various Orders, some relating to property and some relating to parenting. Relevantly, Order 10 was in these terms:
The parties and any lawyers on the record shall personally attend a Conciliation Conference with Senior Judicial Registrar Friend on 24 July 2024 at 9:00am, such Conciliation Conference to take place in the Adelaide Registry of the Federal Circuit and Family Court of Australia on a face-to-face basis in accordance with Court protocols.
The Order further required the attendance to be “face to face”.
(b)by Order 11, the parties and their lawyers on the record were directed to follow directions from the Registrar convening the conference “in relation to attendance in person”;
(c)although that Order was made on 27 March 2024, and although before the conference there was some exchange of correspondence, which is not before me fully, relevantly, and the husband in his affidavit provides this email, the husband on 18 July 2024, namely six days before the conciliation conference, and in circumstances where it was implicit in his email that he was seeking an adjournment, indicated in that email that he would not attend, as ordered by Judge Dickson. For the sake of these Reasons, I provide the terms of Mr Vaughan’s email in full:
Dear Associate
I confirm again,and for the last time, I will not be in attendance and therefore the Conciliation Conference on the 24 July 2024 will need to be vacated to stop costs being thrown away.
On what basis I will not be attending is not relevant, the Family Court jurisdiction cannot press gang me into attending. I ask chambers to consider if I was away interstate on that day or had a long-scheduled operation on that day or was recovering from an operation or was generally unavailable for a host of any other reasons such as parenting duties.
Would Chambers go ahead with the Conciliation Conference if the latter circumstances applied? Of course not. If Chambers refuses to vacate the Conciliation Conference even though knowing full well that one party will not be in attendance and the Conference will therefore achieve nothing then I will seek to make the Family Court liable for any costs the applicant seeks to recover for her legal representatives attending the Conciliation Conference.
If the applicant does not agree to adjourn the conference despite being put on notice for some weeks that I will not be attending then I will use that fact in any arguments for costs being thrown away and I will seek to have the applicant's legal representatives be held personally liable for those costs.
My previous email stated the reasons, not exhaustive, for why I will not be attending. Your previous email stated preconditions for the Conference to go ahead. They have not been met by either party. In addition the applicant had stated they required certain information by a date since past for them to be able to be prepared for the conference. I have not provided them with that information.
I will not be put in a prejudicial position where if there is no agreement reached the applicant solicitor's will no doubt seek costs on that basis.
(As per the original)
(d)the husband seems to not understand that a conciliation conference is confidential. As the orders of Judge Dickson make clear, the purpose of the conference before a Senior Judicial Registrar is for the parties to make a bona fide endeavour to resolve the matter. Often, conciliation conferences occur and resolutions are achieved, even when full compliance or discovery has not been made, such is the desire of parties to bring a finalisation to their matter; and
(e)in this case, the husband gave notice he would not attend and did not attend. The wife and her legal representative were, in my view, obliged by order of Judge Dickson to attend.
Whilst it might have been a matter where the Registrar could have vacated the conference, she gave reasons for her intention not to vacate the date. It needs to be remembered that Court resources are scarce, and when dates are allocated to matters for a Court event, merely adjourning such event could create further resources to be expended and/or other litigants being disadvantaged.
The husband was on notice by the notations to the Order of Judge Dickson that costs could follow his failure to attend. Furthermore, on 24 July 2024, being some two days before the scheduled conference, the Registrar’s Associate informed all parties that as the wife had not agreed to an adjournment, the Conciliation Conference “will remain listed and will proceed”.
The fact that the husband chose not to attend meant that he was not in the position to make submissions. He knew that it was an option open to the Registrar to consider an application for costs in his absence. His failure to attend is not breach of procedural fairness in circumstances where he knew that could well occur.
Statutory pathway
Issues of costs is dealt with by ss 117(1), 117(2) and 117(2A) of the Act. As I explained to the husband today, the first question is whether the general rule in s 117(1) should not be applied in this case because of some circumstance that justifies an order for costs.
I have heard the submissions of the parties. In my view, the husband’s unilateral decision, for his own reasons, not to attend, is a circumstance within the rubric of s 117(2A) that justifies an order for costs. It is a circumstance to which the husband could have averted by merely turning up. He cannot now say if he had turned up, what things may have happened. We simply do not know. He took away any opportunity for any negotiations to occur whether compliance with orders for discovery had been made or not. Although the authorities make clear that not every aspect of s 117(2A) needs to be considered in a costs application, in my view, this is a compelling case for a costs order as a result of:
(a)the husband’s unilateral decision not to comply with an order made by a Division 2 Judge; and
(b)in circumstances where he was on notice about costs.
Having formed the view that a costs order is open to me now on this hearing de novo, the question then returns to what is an appropriate order for costs? I have heard those submissions.
I am not satisfied in circumstances where the wife was on notice that the husband would not appear, that it was a case appropriate for Counsel and a solicitor to attend. The solicitor for the wife, as a result of the costs notification filed for today’s event, is shown to be an experienced family law practitioner.
This was a conciliation conference where there was a strong likelihood the husband would not attend. I take that into account. I do not know what level of preparation may have taken place from when the husband indicated he would not attend, but I accept that some preparation was required because the Registrar was entitled to expect to hear from those who chose to attend in accordance with the Order of Judge Dickson about the matter so that she could discharge her duty to seek to resolve the matter.
Mr Tredrea of Counsel who appears today, indicated that, of course, and it is clear from all the material, an order for indemnity costs is not being sought. There are no special circumstances in this matter that would warrant indemnity cost orders in my view. I propose to fix costs.
I will make an order for costs, that the husband pay the wife in respect of the failed conciliation conference that took place on 24 July 2024, costs fixed in the sum of $2,500.
COSTS IN RELATION TO THE HEARING TODAY
I will now hear from Mr Tredrea about any application for costs in respect of today, after which I will hear from the husband, and then I will determine when the costs should be paid, noting that the husband’s view is that they ought be paid, if they were ordered, from the proceeds of the sale of the former matrimonial home, which may not occur until March next year at the latest.
The Review Application filed by the husband has been partially successful in that it reduced the amount of costs which flow from the conciliation conference on 24 July 2024.
Mr Tredrea indicates that there are costs for responding to this Review Application, that he estimates to be on the scale at $4,500. With respect to them all, I think six hours preparing by solicitors for this event is higher than I would be prepared to allow. It is a very simple application. In respect of the hearing today, I could even go as far as to say I would struggle to certify for Counsel on what is, again, a very simple Application in circumstances where the instructor of Mr Tredrea of Counsel says they are an experienced family lawyer.
Taking all factors into account, however, I believe there are circumstances that justify an order for costs because of the husband’s failure to successfully prosecute that there be no costs.
In my view, considering all the submissions, I will make an order fixed in the sum of $2,500 for today’s event.
So, the order I will make is in respective of the combined cost order of $5,000 payable by the husband to the wife for the applications dealt with today, and as otherwise agreed, those funds shall be paid by the husband from any proceeds of sale he receives from the sale of the former matrimonial home.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 12 February 2025
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