Arman & Arman - [2009] FamCA 8

FAMILY COURT OF AUSTRALIA

ARMAN & ARMAN

[2009] FamCA 8

FAMILY LAW – COSTS – Indemnity costs sought where husband mostly unsuccessful in parenting and property matter

Family Law Act 1975 (Cth)

Penfold v Penfold (1980) FLC 90-800
Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225
J-Corp Pty Limited v Australian Builders Labourers Federation Union of Workers - Western Australian Branch, (Federal Court of Australia, 19 February 1993, unreported)
Munday & Bowman (1997) 92-784
LGM & CAM [2008] FamCAFC 1
Kohan and Kohan (1993) FLC 92-340

APPLICANT:

Ms Arman

RESPONDENT:

Mr Arman

FILE NUMBER:

MLC

3450

2007

DATE DELIVERED:

19 January 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

19 JANUARY 2009

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT:

HARWOOD ANDREWS LAWYERS

Orders

That the husband pay one half of the wife’s costs relating to the property and parenting proceedings from the conclusion of the case assessment conference determined according to the schedule to the Family Law Rules 2004 by agreement and in default of agreement, as may be assessed by a registrar.
That for the purposes of paragraphs 17 to 20 of the orders made 31 October 2008, the costs due to the wife pursuant to paragraph 1 hereof shall be paid from the husband’s entitlement.
Pending written agreement or further order of the Court on any assessment as to the sum of costs due to the wife under paragraph 1 of these orders, no payment shall be made to the husband and his entitlement shall be held in an interest-bearing account by the legal practitioners responsible for the sale of the B Street property.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3450 of 2007

MS ARMAN

Applicant

And

MR ARMAN

Respondent

REASONS FOR JUDGMENT

On 31 October 2008 after a contested hearing in relation to parenting and property matters, I made orders and delivered reasons for judgement.
In paragraph 28 of the orders, I said:
Any and all questions of costs arising out of these orders are reserved to be determined on written submissions. If any party desires to make such a submission, it shall be filed with my Associate and served on any other party by 4 pm on 14 November 2008 and any reply thereto shall be similarly filed and served by 4 pm on 21 November 2008.
On 14 November 2008, the practitioners for the wife filed written submissions and sought orders for costs.
By 4 pm on 14 November 2008, the husband had not filed any response to the wife’s submissions nor sought any orders himself. On 7 November 2008, by notice dated 5 November 2008, the husband’s solicitors ceased to act for him. They had acted for him throughout the final hearing which lasted over a number of days.
Despite…

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 Arman & Arman

Details

AGLC: Arman & Arman [2009] FamCA 8
Case: [2009] FamCA 8
Decision Date: 19 January 2009

CaseChat Overview and Summary

In the matter of *Arman & Arman*, heard before Cronin J, the dispute concerned the costs awarded in property and parenting proceedings between the husband and wife.

The court was required to determine the quantum and method of payment of the wife's costs, specifically in relation to the property and parenting proceedings that concluded after a case assessment conference.

Cronin J ordered that the husband pay one half of the wife's costs, to be assessed in accordance with the Family Law Rules 2004. These costs were to be paid from the husband's entitlement arising from the sale of the B Street property. Pending the final assessment and agreement on the sum of costs, the husband's entitlement from the property sale was to be held in an interest-bearing account by the legal practitioners managing the sale, with no payment to be made to the husband in the interim.

Orders

Orders of the court

That the husband pay one half of the wife’s costs relating to the property and parenting proceedings from the conclusion of the case assessment conference determined according to the schedule to the Family Law Rules 2004 by agreement and in default of agreement, as may be assessed by a registrar.

That for the purposes of paragraphs 17 to 20 of the orders made 31 October 2008, the costs due to the wife pursuant to paragraph 1 hereof shall be paid from the husband’s entitlement.

Pending written agreement or further order of the Court on any assessment as to the sum of costs due to the wife under paragraph 1 of these orders, no payment shall be made to the husband and his entitlement shall be held in an interest-bearing account by the legal practitioners responsible for the sale of the B Street property.

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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