Jennings & Barrese (No 2) [2025] FedCFamC1F 421 (24 June 2025)

(a) These reasons;

(b) The orders made 15 April 2025 and 20 May 2025;

(c) The Affidavit of the father filed 16 May 2025; and

(d) The email communications referred to in these reasons.

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 Jennings & Barrese has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons relate to an application for costs thrown away made by the father. The order for costs is sought against the mother's former solicitor.
2. For the reasons that follow, an order for costs shall be made as sought.

1. Orders were made by the Court on 17 April 2025 referring the mother's former solicitor, Ms B to the South Australian Legal Profession Conduct Commissioner (Jennings & Barrese [2025] FedCFamC1F 257); ostensibly as a result of her failure to comply with orders of the Court and her failure to attend three separate hearings in these proceedings on each 11 March 2025, 8 April 2025 and 15 April 2025.
2. At a hearing on 15 April 2025 the Court indicated to the parties (as reflected in Notation B to the orders made that day) that an order would be made referring the practitioner to the Legal Profession Conduct Commissioner. Of significance for present purposes, orders were also made on 15 April 2025 which provided for:

(a) A hearing on 20 May 2025 to hear and determine the father's oral application for costs thrown away arising from the three separate hearings the mother's solicitor failed to attend (Order 4).

(b) The father to file and serve any affidavit he relied on for the purposes of that costs application by 2 May 2025 (Order 5).

(c) The mother's former solicitor to file and serve any affidavit that she wished to rely upon by 14 May 2025 (Order 6).

(d) The mother's former solicitor to personally attend the adjourned hearing "whether legally represented or not" (Order 7).

1. On 16 May 2025 the father filed an affidavit purportedly in compliance with Order 5 made 15 April 2025. It is observed that the affidavit was filed late and, significantly, a day after the date upon which the mother's solicitor was directed to file any affidavit in reply if she wished to so do.
2. At the hearing on 20 May 2025:

(a) The mother's former solicitor did not appear, despite the order requiring her to do so; and

(b) The Court noted its concern regarding the late filing of the affidavit by the father.

1. As a result (and in particular due to the lack of procedural fairness afforded to the mother's former solicitor), an order was made adjourning the hearing of the father's application for costs to 20 June 2025.
2. In addition, and as recorded in Notation D to the orders made 20 May 2025, the Court indicated that an email would be sent to the mother's former solicitor (to the email address previously provided for in the Notice of Address for Service she had filed on behalf of the mother on 4 December 2024) providing her with a copy of the orders made 15 April 2025 and 20 May 2025. The court file indicates that such email was duly sent to the mother's former solicitor (and copied to each of the parties) on 23 May 2025.
3. Unfortunately, the mother's former solicitor failed to attend the hearing on 20 June 2025; this now being the fifth occasion that she has failed to attend a court hearing, and it being the third occasion she has failed to do so in the face of an order of the court that she personally attend.

1. The father has made an application for costs thrown away against the mother's former solicitor fixed in the amount of $1,417.71. Curiously, those costs appear to have been calculated in accordance with items contained in the applicable Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") and the Daily Hearing fee item contained in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth), which does not apply to proceedings in the Federal Circuit and Family Court of Australia, Division 1.
2. Despite this anomaly, I have had regard to the schedule of costs set out by the father and consider that each of the charges appear reasonable in all of the circumstances; noting that aside from attendances at the three hearings, costs have been claimed for repeated communications from the father's solicitors to the mother's former solicitors in an attempt to engage her in the proceedings.

1. The recently amended Part XIVC of the Family Law Act 1975 (Cth), and Chapter 12 of the Rules govern the making of orders for costs.
2. In particular, r 12.15 and r 12.16 provide:

(1) The court may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs to be incurred by a party or another person, or to be thrown away, because of:

(a) a failure to comply with these Rules or an order; or

(b) a failure to comply with a pre‑action procedure; or

(c) improper or unreasonable conduct; or

(d) undue delay or default.

(2) A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:

(a) to attend, or send another person to attend, the hearing; or

(b) to file, lodge or deliver a document as required; or

(c) to prepare any proper evidence or information; or

(d) to do any other act necessary for the hearing to proceed.

(3) An order under subrule (1) may be made on the initiative of the court, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.

(4) An order under subrule (1) may include an order that the lawyer:

(a) not charge the lawyer's client for work specified in the order; or

(b) repay money that the client has already paid towards those costs; or

(c) repay to the client any costs that the client has been ordered to pay to another party or another person; or

(d) pay the costs of a party; or

(e) repay another person's costs found to be incurred or wasted.

(1) Before making an order for costs against a lawyer or other person who is not a party to a proceeding, the court must give the lawyer or other person a reasonable opportunity to be heard.

(2) If a party who is represented by a lawyer is not present when an order is made that costs are to be paid by the party or the party's lawyer, the party's lawyer must give the party written notice of the order and an explanation of the reason for the order.

1. The reasons delivered on 17 April 2025 make plain the Court's concerns regarding the conduct of the mother's former solicitor.
2. I am satisfied that the conduct of the mother's former solicitor has resulted in the father incurring unnecessary costs.
3. I am satisfied that the mother's former solicitor was given the opportunity to be heard in relation to the application for costs made against her (particularly in circumstances where the hearing on 20 May 2025 was adjourned to afford her the opportunity to do so, due to the late filing of the father's affidavit). For reasons which the Court does not know, the mother's former solicitor has declined the opportunity to be heard.
4. In all the circumstances, I am satisfied that the circumstances justify the making of a costs order against the mother's former solicitor, and that the same shall be fixed in the amount sought.
5. In circumstances where the Court made orders that the mother's former solicitor attend the hearings on each 20 May 2025 and 20 June 2025, and she has failed to do so, and taking into account the basis for the referral as discussed in the reasons published on 17 April 2025, regrettably, a further order shall be made referring the conduct of the mother's former solicitor to the professional regulatory body.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.