Allen & Cortez (No 2) - [2016] FamCA 837

FAMILY COURT OF AUSTRALIA

ALLEN & CORTEZ (NO. 2)

[2016] FamCA 837

FAMILY LAW – COSTS – Application for costs arising out of a forum dispute – consideration as to whether s 117 or State legislation applies – held that proceedings where the court exercised its implied powers are not proceedings under the Act – costs follow the event

FAMILY LAW – COSTS – Indemnity costs – principles for making an award of costs on an indemnity basis considered

Civil Procedure Act 2010 (Vic)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Supreme Court Act 1986 (Vic)
Supreme Court (General Civil Procedure) Rules 2015 (Vic)

Browne & Green [2002] FamCA 791; (2002) FLC 93-115
Chen & Tan (No 2) [2012] FamCA 796
I & I (No 2) (1995) FLC 92-625
Kelly and Kelly (No 2) (1981) FLC 91-108
Kohan & Kohan (1993) FLC 92-340
Mallett v Mallett (1984) 156 CLR 605
Marinko & Marinko (1983) FLC 91-307
Markoska & Markoska and Anor (Costs) [2011] FamCA 8303
Sahin v National Australia Bank Ltd [2013] VSCA 93
Skinner & Alfonso-Skinner (Costs) [2010] FamCA 1108
Yeo & Huy (Costs) [2012] FamCA 758
White & White (1982) FLC 91-246

APPLICANT:

Mr Allen

RESPONDENT:

Ms Cortez

FILE NUMBER:

MLC

7415

2014

DATE DELIVERED:

28 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

By way of written submissions

WRITTEN SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT:

Clancy & Triado

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

IT IS ORDERED THAT

The wife pay the husband’s costs of and incidental to her Amended Application in a Case filed 25 February 2016 and the husband’s Amended Response to an Application in a Case filed 10 March 2016, to be agreed and in default of agreement to be as assessed on a party/party basis.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allen & Cortez (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7415 of 2014

Mr Allen

Applicant

And

Ms Cortez

Respondent

REASONS FOR JUDGMENT

On 6 May 2016 I made orders dismissing the wife’s application for a stay of property proceedings between the parties in this Court and acceded to the husband’s application that the wife be restrained by injunction from commencing or continuing any matrimonial proceedings in any other jurisdiction, including the State of California in the United States of America. (“the substantive proceedings”).
On that date I also made orders reserving the question of…

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 Allen & Cortez (No 2)

Details

AGLC: Allen & Cortez (No 2) [2016] FamCA 837
Case: [2016] FamCA 837
Decision Date: 28 September 2016

CaseChat Overview and Summary

In *Allen & Cortez (No 2)*, the Family Court of Australia considered an application for costs arising from a dispute concerning the appropriate forum for proceedings. The wife sought costs, and the husband sought indemnity costs.

The central legal issues before the court were whether section 117 of the *Family Law Act 1975* (Cth) applied to the costs of the forum dispute, or if relevant State legislation governed. The court also considered the principles applicable to an award of indemnity costs.

Macmillan J held that proceedings where the court exercised its implied powers, rather than powers expressly conferred by the *Family Law Act*, were not proceedings "under the Act" for the purposes of section 117. Consequently, the general rule that costs follow the event applied. The court ordered that the wife pay the husband’s costs of and incidental to her Amended Application in a Case filed 25 February 2016 and the husband’s Amended Response to an Application in a Case filed 10 March 2016, to be agreed or, in default of agreement, assessed on a party/party basis.

Orders

Orders of the court

IT IS ORDERED THAT

The wife pay the husband’s costs of and incidental to her Amended Application in a Case filed 25 February 2016 and the husband’s Amended Response to an Application in a Case filed 10 March 2016, to be agreed and in default of agreement to be as assessed on a party/party basis.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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