Addison & Leahy

Case [2008] FamCA 248

FAMILY COURT OF AUSTRALIA

ADDISON & LAHEY [2008] FamCA 248
FAMILY LAW – COSTS - Inter Parties- whether husband should be ordered to pay wife’s costs including a claim for costs on an indemnity basis – facts and circumstances of the case
Family Law Act 1975 (Cth) s 117

Woodley & Time and Anor[2008] FamCA 162
Kelly & Kelly (No. 2) (1981) FLC 91-108
Jensen and Jensen (1982) FLC 91-263
Re David: costs (1998) FLC 92-809
Munday and Bowman (1997) FLC 92-784
Kohan and Kohan (1993) FLC 92-340
Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225
Yunghanns v Yunghanns (2000) FLC 93-029
In JEL and DDF (No 2) (2001) FLC 93-083

ZH & N [2005] FamCA 828
APPLICANT: Ms Addison
RESPONDENT: Mr Lahey
FILE NUMBER: (P)SYF 3280 of 2003
DATE DELIVERED: 16 April 2008
PLACE DELIVERED: Hobart
PLACE HEARD: Hobart
JUDGMENT OF: Benjamin J
HEARING DATE: 13 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bruce Crawford
SOLICITOR FOR THE APPLICANT Murray & Associates
COUNSEL FOR THE RESPONDENT Mr Phillip Connor
SOLICITOR FOR THE RESPONDENT Argyle Partnership

Orders

  1. The husband pay the wife’s costs in relation to the objections to a subpoena filed 23 August 2006 and directed to the wife’s solicitors Murray & Associates, with such costs to include any appearances before a Registrar (but excluding the costs in respect of actual appearances before Benjamin J).

  2. The subpoena to Murray & Associates filed by the husband on the 23 August 2006 be set aside.

  3. The husband pay 70 per cent of the wife’s costs of the property and children’s proceedings, on a party/party basis, as and from the 12 May 2004 up to and including the date of final orders on 13 January 2006 but excluding:-

    (a)the costs on the subpoena to Murray & Associates referred to in paragraph 1 above (but including 70% of the costs in respect of actual appearances before Benjamin J in respect of such subpoena);

    (b)the costs associated with work done or disbursements incurred in respect of the costs orders made by Mushin J on the 8 June 2005 and the costs orders made by Hannon J on the 29 November 2004.

    (c)The costs payable by the wife in respect of the Children’s Representative, totalling $14,175.50.

  4. Each party pay their own costs in respect of these proceedings prior to the 12 May 2004.

  5. The husband pay the wife’s costs, on a party/party basis, of the application for costs.

  6. Costs payable pursuant to this order to be as agreed between the parties or as otherwise determined under the Rules of this Court and in that regard time be extended for the filing of a Bill of Costs for a period of ninety (90) days from the date of these orders.

  7. This application is removed from the list of cases requiring determination.

  8. All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons…

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AGLC
Addison & Leahy [2008] FamCA 248
Case
[2008] FamCA 248
Decision Date

CaseChat Overview and Summary

This matter concerned costs orders following proceedings between a husband and wife. The dispute involved objections to a subpoena issued by the husband to the wife's solicitors, Murray & Associates, and the broader property and children's proceedings. The court was Benjamin J of the Family Court of Australia.

The court was required to determine whether the subpoena issued by the husband to the wife's solicitors should be set aside, and to make orders regarding the costs of that subpoena application. Furthermore, the court needed to determine the allocation of costs for the property and children's proceedings, considering various prior orders and the conduct of the parties.

Benjamin J ordered that the subpoena to Murray & Associates be set aside and that the husband pay the wife's costs in relation to the objections to that subpoena, excluding costs for appearances before Benjamin J himself. The court also ordered that the husband pay 70 per cent of the wife's costs for the property and children's proceedings from 12 May 2004 to 13 January 2006, with specific exclusions for costs related to the subpoena, prior costs orders, and the Children's Representative. Each party was to bear their own costs for proceedings prior to 12 May 2004, and the husband was ordered to pay the wife's costs for the application for costs. The court extended time for the filing of Bills of Costs and removed the application from the list of cases requiring determination.

Orders

Orders of the court

1.

The husband pay the wife’s costs in relation to the objections to a subpoena filed 23 August 2006 and directed to the wife’s solicitors Murray & Associates, with such costs to include any appearances before a Registrar (but excluding the costs in respect of actual appearances before Benjamin J).

2.

The subpoena to Murray & Associates filed by the husband on the 23 August 2006 be set aside.

3.

The husband pay 70 per cent of the wife’s costs of the property and children’s proceedings, on a party/party basis, as and from the 12 May 2004 up to and including the date of final orders on 13 January 2006 but excluding:-

(a) the costs on the subpoena to Murray & Associates referred to in paragraph 1 above (but including 70% of the costs in respect of actual appearances before Benjamin J in respect of such subpoena);

(b) the costs associated with work done or disbursements incurred in respect of the costs orders made by Mushin J on the 8 June 2005 and the costs orders made by Hannon J on the 29 November 2004.

(c) The costs payable by the wife in respect of the Children’s Representative, totalling $14,175.50.

4.

Each party pay their own costs in respect of these proceedings prior to the 12 May 2004.

5.

The husband pay the wife’s costs, on a party/party basis, of the application for costs.

6.

Costs payable pursuant to this order to be as agreed between the parties or as otherwise determined under the Rules of this Court and in that regard time be extended for the filing of a Bill of Costs for a period of ninety (90) days from the date of these orders.

7.

This application is removed from the list of cases requiring determination.

8.

All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

IT IS CERTIFIED

10.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

Background

Background to the litigation

The husband opposed the making of any costs orders.BACKGROUND Part of the background between the parties was set out in my reasons in paragraph 7(a) – (bb) which provided:-a) The husband is aged 41 years at the date of hearing.b) The wife is aged 42 years at the date of hearing.c) There are two children of the marriage namely a son J aged 8 and a daughter L aged 5.d) The husband asserts the parties first met in about December 1995 and they commenced a relationship in May 1996. He asserts that he and the wife commenced living together in February 1997. The wife asserts co-habitation from September 1996.e) The parties married in January 1998.f) The wife says that the marriage came to an end in November/December 2002. The husband asserts that he regards the marriage as coming to an end on 1 March 2003.g) On or about the 3 November 2002 the wife and the children travelled to Tasmania and returned to Sydney approximately three weeks later.h) In November 2002 the wife commenced a sexual relationship with Mr M.i) On the 7 December 2002 the wife returned to Tasmania and has resided in Tasmania with the children since that time.j) On the 9 December 2002 the wife said that she informed the husband that the marriage was over and that she proposed to continue residing in Tasmania with the children.k) In December 2002 the husband obtained legal advice in regard to issues that may arise in respect of a break-up of his marriage to the wife.l) On the 20 December 2002 the husband travelled to Launceston and spent two days with the children.m) On the 2 January 2003 the wife travelled to Sydney with the children and stayed at the former matrimonial home at C for approximately five days.n) During that stay in C in January 2003 the wife packed a number of boxes with items for return to Launceston.o) In mid to late January 2003 the wife commenced occupation of the home at Launceston (being a property owned by a Trust controlled by the wife’s father).p) In early 2003 the wife’s relationship with Mr M developed to a stage where they commenced to live together.q) In March 2003 the husband says he discovered the nature of the relationship between the wife and Mr M.r) On the 7 March 2003 the wife took J to see a psychologist in respect of her concerns of an adjustment reaction she believed he had suffered as a result of the separation. This treatment was arranged and attended in the absence of consent from the husband and in circumstances where the husband had made clear to the wife his desire to be informed and involved in such treatment regarding the children.s) In late March or early April 2003 there was an incident at E Primary School where another child in J’s class threatened to place his penis in J’s bottom and this other child placed his penis in or near J’s ear. This being seen in the context that this was the first year of full time primary school for both children, J having been enrolled at E Primary School earlier that year or late 2002. t) On the 17 April 2003, the children had contact with husband in Sydney in accordance with a voluntary arrangement with the wife.u) On the 24 April 2003, whilst the children were in the husband’s care for that contact visit, the husband commenced proceedings for parenting orders returnable on 9 May 2003. He retained the children in Sydney pending the outcome of those proceedings and in breach of his arrangement with the wife to return the children to Tasmania.v) The husband asserts that he telephoned the wife at or about the time the April 2003 proceedings were commenced to inform her of his intentions to retain the children in Sydney.w) During that period in April 2003, the husband enrolled J in a local Sydney primary school.x) On the 9 May 2003, an interim Order was made by Registrar Henderson of the Family Court that the children reside with the wife and the children be returned to the wife on 11 May 2003. The wife was permitted to reside with the children in Launceston, Tasmania.y) On the 11 May 2003, the children were returned to the wife from the home at C.z) On the17 July 2003, by consent, final parenting orders were made by Registrar Jurd.aa) On the 3 November 2003 an application was made by the husband for an extension of time to review the interim orders made by on 9 May 2003 was refused. The husband’s application for an extension of time to review the exercise of judicial power by a registrar on 17 July 2003 was extended to seven days from 3 November 2003.bb) In December 2003 – D was born (being a child of the relationship between the wife and Mr M).

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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