Abbott and Langton (Costs) - [2011] FamCA 26

FAMILY COURT OF AUSTRALIA

ABBOTT & LANGTON (COSTS)

[2011] FamCA 26

FAMILY LAW – COSTS – FINAL HEARING – Where competing applications for costs of proceedings under s 79 of the Family Law Act 1975 (Cth) – Where husband’s financial circumstances at conclusion of proceedings superior to that of wife – Where husband and his case guardian failed to provide relevant updated financial information – Where undertaking as to disclosure made by husband but not his case guardian – Where case guardian's failure to update financial information resulted in wife incurring additional costs – Where case guardian made an offer in writing which was not materially different to wife’s entitlements at conclusion of defended proceedings – Where wife unable to properly consider offer by lack of relevant financial information – Circumstances established by wife justifying departure from s 117(1) – Case guardian to cause husband to pay 50 per cent of wife’s costs of the substantive proceedings

FAMILY LAW – COSTS – INTERLOCUTORY APPLICATIONS – Where husband sought costs order where costs reserved – Where husband sought costs of two additional interlocutory applications – No circumstances justifying a departure from s 117(1) – Each party to pay their own costs of interlocutory applications

Browne v Green (2002) FLC 93- 115
Child Support Registrar & Kanavos [2010] FamCAFC 244
Penfold v Penfold (1980) 144 CLR 311
Robinson & Higginbotham (1991) FLC 92-209

Family Law Act 1975 (Cth) ss 117, 117(2A)(f), 117AB, 117C
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Rules 2004

APPLICANT:

Ms Abbott

RESPONDENT:

M Langton as case guardian for Mr Langton

FILE NUMBER:

SYC

2523

2007

DATE DELIVERED:

28 January 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

15 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Beswick Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hill

SOLICITOR FOR THE RESPONDENT:

Kenneth Harrison Solicitor & Attorney

Orders

The Case Guardian’s oral application for costs of the substantive property proceedings, including the review, is dismissed.
The Case Guardian do all acts and things necessary to cause the husband to pay 50 per cent of the wife’s costs of and incidental to the substantive property proceedings, including the review, but excluding the interlocutory applications heard on 16 July 2007, 5 February 2008 and 9 June 2009 as agreed and failing agreement as assessed.
The Case Guardian’s oral application for costs of interlocutory applications heard on 16 July 2007, 5 February 2008 and 9 June 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Abbott & Langton (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2523 of 2007

MS ABBOTT

Applicant

And

M LANGTON as Case Guardian for MR LANGTON

Respondent

REASONS FOR JUDGMENT

Introduction

On 10 December 2010 I published reasons for judgment and made orders in respect of a review of orders made by Johnston JR (as…

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 Abbott and Langton (Costs)

Details

AGLC: Abbott and Langton (Costs) [2011] FamCA 26
Case: [2011] FamCA 26
Decision Date: 28 January 2011

CaseChat Overview and Summary

In *Abbott and Langton (Costs)*, Boland J of the Family Court of Australia considered competing applications for costs arising from property proceedings under s 79 of the *Family Law Act 1975* (Cth). The dispute centred on the husband's financial circumstances, which were superior to the wife's at the conclusion of the proceedings, and the failure of both the husband and his case guardian to provide updated financial information.

The court was required to determine whether circumstances justified a departure from the usual rule that each party bears their own costs under s 117(1) of the *Family Law Act*. Specifically, the court had to assess the impact of the case guardian's failure to update financial information on the wife's ability to consider an offer made by the husband, and whether this failure warranted an order for the husband to pay a portion of the wife's costs. The court also considered the husband's applications for costs of certain interlocutory proceedings.

Boland J reasoned that the case guardian's failure to provide updated financial information, despite an undertaking as to disclosure, prejudiced the wife's ability to properly consider the husband's offer, which was not materially different from her entitlements. This failure, coupled with the husband's superior financial position, constituted circumstances justifying a departure from s 117(1) in relation to the substantive proceedings. Consequently, the court ordered that the case guardian cause the husband to pay 50 per cent of the wife's costs of the substantive property proceedings. However, for the interlocutory applications, the court found no circumstances justifying a departure from s 117(1), and each party was ordered to bear their own costs of those applications.

Orders

Orders of the court

The Case Guardian’s oral application for costs of the substantive property proceedings, including the review, is dismissed.

The Case Guardian do all acts and things necessary to cause the husband to pay 50 per cent of the wife’s costs of and incidental to the substantive property proceedings, including the review, but excluding the interlocutory applications heard on 16 July 2007, 5 February 2008 and 9 June 2009 as agreed and failing agreement as assessed.

The Case Guardian’s oral application for costs of interlocutory applications heard on 16 July 2007, 5 February 2008 and 9 June 2009 is dismissed.

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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