Arthurman and Arthurman (No. 2) - [2008] FamCA 928

FAMILY COURT OF AUSTRALIA

ARTHURMAN & ARTHURMAN (NO. 2)

[2008] FamCA 928

FAMILY LAW – COSTS - Between parties
FAMILY LAW – COSTS - Offer of settlement
FAMILY LAW – COSTS - Circumstances justifying order

Family Law Act 1975 (Cth)

Browne and Green (2002) FLC 93-115

APPLICANT AND RESPONDENT TO THE CROSS APPLICATION:

Mr Arthurman

RESPONDENT AND CROSS APPLICANT:

Ms Arthurman

FILE NUMBER:

SYF

2938

2003

DATE DELIVERED:

16 October 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. Millar

RESPONDENT:

In person

Orders

The wife is to pay one half of the costs of the husband as agreed or assessed of the hearing before Justice Fowler commencing on the first day of such hearing. Payment of this amount is postponed until such time as the wife receives the benefit of Order 4 made on 18 March 2008.
Pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2938 of 2003

MR ARTHURMAN

Applicant

And

MS ARTHURMAN

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are applications by the husband and wife in these proceedings for an order for the costs of and incidental to the property proceedings finally heard by me on 17 to 20 December 2007, as and from 29 July 2005.
An order for costs is sought also by the husband in relation to the application in which the above order is sought.

Background Facts

There were defended proceedings before me for orders for settlement of property. Final orders were made in the proceedings on 18 March 2008.
Those orders were:
“THE COURT NOTED:
(1) The following definitions for the purpose of these Orders:
(a)“The [C] Property” means the property at [C], Folio Identifier […].
(b)“The [C property] mortgages” means the two mortgages to the Commonwealth Bank of Australia secured against the title of the [C] Property dealing Nos. […] and […]
(c)“The [M] Property” means the two separate properties at […A] and […B] [W] Street, [M], respectively Folio Identifiers […] and […].
(d)“[H Pty Ltd]” means the company [H] Pty Ltd ACN […].
AND THE COURT ORDERED THAT:
(1)Within 30 days from the date of these Orders the following shall occur simultaneously:
[C] Property
(a)the wife is ordered to do all acts and things and sign all documents necessary to transfer to the husband all right, title and interest in the [C] property unencumbered.
(b)the husband and the wife are ordered to do all acts and things and sign all documents necessary to discharge the mortgages, and the husband is ordered to repay the balance of the [C property] Mortgages on or before discharge, whether by way of refinance or otherwise.
(c)the wife is ordered to…

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 Arthurman and Arthurman (No. 2)

Details

AGLC: Arthurman and Arthurman (No. 2) [2008] FamCA 928
Case: [2008] FamCA 928
Decision Date: 16 October 2008

CaseChat Overview and Summary

In *Arthurman and Arthurman (No. 2)*, Justice Fowler of the Family Court of Australia considered an application concerning costs following a hearing. The dispute revolved around the allocation of legal expenses incurred by the husband during proceedings before Justice Fowler.

The primary legal issue before the court was whether the wife should be ordered to contribute to the husband's costs, and if so, to what extent. The court was also required to determine the timing of any such payment and to consider whether the matter warranted the attendance of counsel.

Justice Fowler reasoned that the wife should bear a portion of the husband's costs, specifically one half of the agreed or assessed costs of the hearing. This decision was made pursuant to rule 19.50 of the *Family Law Rules 2004*, which allows for costs orders where the attendance of counsel was reasonably required. The court further ordered that the wife's obligation to pay these costs would be postponed until she received the benefit of a prior order made on 18 March 2008.

Orders

Orders of the court

The wife is to pay one half of the costs of the husband as agreed or assessed of the hearing before Justice Fowler commencing on the first day of such hearing. Payment of this amount is postponed until such time as the wife receives the benefit of Order 4 made on 18 March 2008.

Pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

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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