Wagner & Oakley (No 2)

Case [2023] FedCFamC1F 687

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Wagner & Oakley (No 2) [2023] FedCFamC1F 687

File number(s): WOC 806 of 2019
Judgment of: ALTOBELLI J
Date of judgment: 18 August 2023
Catchwords: FAMILY LAW – COSTS – Mother’s application for costs – Where the substantive proceedings involved parenting and an alteration of property interests – Where the mother was wholly successful in her parenting application – Where there was an offer accepted by the mother in relation to property proceedings less than what she ultimately received – Where the father reneged on the said offer – Where costs are ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Sch 3 Pt I
Cases cited:

Bhatt & Acharya (Costs) [2017] FamCAFC 71

Cole & Ingram (2020) 62 FamLR 158; [2020] FamCA 966

In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80

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

Lenova & Lenova (Costs) [2011] FamCAFC 141

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

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

Wagner & Oakley [2023] FedCFamC1F 390

Zhou & Mei [2020] FamCA 1116
Division: Division 1 First Instance
Number of paragraphs: 36
Date of last submission/s: 24 July 2023
Date of hearing: In Chambers
Place: Sydney
Solicitor for the Applicant: Mitchell Family Lawyers
Solicitor for the Respondent: RMB Lawyers

ORDERS

WOC 806 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS WAGNER

Applicant
AND:

MR OAKLEY

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

18 AUGUST 2023

Amended pursuant to r 10.13(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 25 September 2023

THE COURT ORDERS THAT:

1.Within 28 days of the date of this order, Tthe Respondent father is to pay the Applicant mother’s costs of the proceedings fixed in the sum of $150,000.

2.All other applications before the Court are 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…

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AGLC
Wagner & Oakley (No 2) [2023] FedCFamC1F 687
Case
[2023] FedCFamC1F 687
Decision Date

CaseChat Overview and Summary

In the matter of Wagner & Oakley (No 2), the mother sought costs from the father after the substantive proceedings which involved parenting and alterations of property interests. The mother was successful in her parenting application and the Court made orders for her to have sole parental responsibility for the children and for the children to live with her and spend time with the father. In relation to property, the mother accepted an offer of settlement on 1 December 2021, which was less than what she ultimately received. The father reneged on this offer. The mother applied for indemnity costs, seeking $232,843.17. The Court considered the financial circumstances of both parties, their conduct during the proceedings, and whether either party had made an offer to settle. The Court determined that the mother was wholly successful in the parenting proceedings and that the property proceedings could have been settled much earlier. Given that the father was wholly unsuccessful in the parenting proceedings, the Court found that an order for costs was warranted.

The Court declined to make an order for costs on an indemnity basis and chose to fix costs at $150,000. The Court took into account the mother's success in the parenting proceedings and the fact that the property proceedings could have been settled earlier. The Court noted that the father reneged on the offer of settlement accepted by the mother. The Court considered the mother's total costs incurred and the relevant factors outlined in the Family Law Act 1975 (Cth). Ultimately, the Court found that an order for fixed costs was appropriate.

The Court ordered that the father pay the mother’s costs of the proceedings in the sum of $150,000 within 28 days of the date of the order. All other applications before the Court were dismissed. This decision reflects the Court's consideration of the specific circumstances of the case and the relevant legal principles governing costs in family law proceedings.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Within 28 days of the date of this order, Tthe Respondent father is to pay the Applicant mother’s costs of the proceedings fixed in the sum of $150,000.

2. All other applications before the Court are dismissed.

Background

Background to the litigation

In his Response to an Application in a Proceeding filed on 13 July 2023, the father seeks that the mother’s application be dismissed. BACKGROUND The Court heard the final hearing in this matter for five days in January 2023 in relation to parenting and property matters. On 19 May 2023, the Court delivered judgment and made orders for the mother to have sole parental responsibility for the children and for the children to live with the mother and spend time with the father, and orders for an alteration of property interests as to 60:40 in the father’s favour. Reasons for judgment were provided, Wagner & Oakley [2023] FedCFamC1F 390 (“my reasons for judgment”), and various passages will be referred to or reproduced where it is relevant.PRESENT APPLICATION In support of her case, the mother relies on the following material:(a)Application in a Proceeding filed 16 June 2023;(b)Her affidavit filed 16 June 2023;(c)Affidavit of Shae Mitchell filed 21 June 2023;(d)Written submissions filed 4 July 2023;(e)Tender bundle filed 6 July 2023; and (f)Written submissions in reply filed 23 July 2023. In support of his case, the father relies on the following material:(a)Response to an Application in a Proceeding filed 13 July 2023;(b)His affidavit filed 13 July 2023;(c)Tender bundle filed 13 July 2023;(d)Financial statement filed 13 July 2023; and (e)Written submissions filed 13 July 2023.LEGAL PRINCIPLES The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that:If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. Section 117(2A) sets out the matters that the Court is to have regard to: (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:(a)the financial circumstances of each of the parties to the proceedings;(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and(g)such other matters as the court considers relevant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court declines to make an order for costs on an indemnity basis. CONCLUSION The Court has found that the mother was wholly successful in the parenting proceedings and that there was an offer of settlement in relation to the property proceedings accepted by the mother on 1 December 2021 in which she was to receive less than what was ultimately awarded. An order for costs is warranted. The mother sought indemnity costs in the sum of $232,843.17. This gives an indication of the total amount of costs she incurred. The Court chooses to fix costs to take into account the fact that the property proceedings could have been settled much earlier, and the fact that the father was wholly unsuccessful in the parenting proceedings. Such costs will be fixed in the sum of $150,000.

Ratio Decidendi

Legal Principle Established

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