Asprey and Delamarre (Costs) - [2013] FamCA 338

FAMILY COURT OF AUSTRALIA

ASPREY & DELAMARRE (COSTS)

[2013] FamCA 338

FAMILY LAW – COSTS – No order as to costs – where circumstances did not justify departure from the usual rule – where costs do not follow the event in matters under the Act – where the respondent was wholly unsuccessful – where there was an arguable case for the respondent – where parties living as a couple on a genuine domestic basis may have very different subjective notions of the nature of their relationship – where parties held different belief as to the nature of their relationship – where neither party acted to prolong or frustrate proceedings – where the respondent had the capacity to meet a costs order

Family Law Act 1975 (Cth) ss 117, 4AA(2)

Barry & Dalrymple (Costs) [2011] FamCA 365
Collins & Collins (1985) FLC 91-603
Jonah & White [2012] FamCAFC 200
Penfold v Penfold (1980) FLC 90-800

APPLICANT:

Ms Asprey

RESPONDENT:

Mr Delamarre

FILE NUMBER:

SYC

4348

2011

DATE DELIVERED:

14 May 2013

PLACE DELIVERED:

Newcastle

In Chambers

PLACE HEARD:

Not applicable

JUDGMENT OF:

Cleary J

HEARING DATES:

Written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bridger

SOLICITOR FOR THE APPLICANT:

Jo Anna F S Moy Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Maurice

SOLICITOR FOR THE RESPONDENT:

Aubrey Brown Partners

Orders

That the oral Application by the Applicant for costs is dismissed.
That there be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Asprey & Delamarre (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: (P)SYC4348 of 2011

Ms Asprey

Applicant

And

Mr Delamarre

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Asprey, the applicant to the proceedings heard in February 2013, has now made an application for costs. The application is opposed by the respondent, Mr Delamarre.
Each party to proceedings under the Family Law Act 1975 (Cth) (“the Act”) pays his or her own costs. That is the general rule in s 117(1) of the Act. If the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs and security for costs as the Court considers just (see Penfold v Penfold (1980) FLC 90-800 at 75054).
In considering what order (if any) should be made, the Court must have regard to factors, which I will now consider.

(a) The financial circumstances of each of the parties

The parties rely on their respective Financial Statements:
(a)Ms Asprey affirmed 18 July 2011; and
(b)Mr Delamarre sworn/affirmed 20 September 2011.
There is no updating material.
The applicant works in the financial industry and runs her financial industry business from home. She generates average weekly income of $1,054 from her business. She receives a child care tax rebate of approximately $80 and a family tax benefit of $140 per week. She had a…

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.

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Details

Case: [2013] FamCA 338
Decision Date: 14 May 2013

CaseChat Overview and Summary

The application concerned an application for costs made by the applicant, Asprey, following proceedings in the Supreme Court of New South Wales before Cleary J. The specific nature of the underlying dispute that led to the application for costs was not detailed in the provided text.

The primary legal issue before the Court was whether the applicant, Asprey, should be awarded costs in relation to the proceedings. This required the Court to consider the general principles governing the award of costs in litigation and any specific circumstances that might warrant a departure from the usual order.

Cleary J dismissed the applicant's oral application for costs and ordered that there be no order as to costs. This outcome suggests that the Court found no grounds to depart from the usual practice of parties bearing their own costs in the absence of specific reasons to order otherwise, or that the applicant failed to demonstrate sufficient cause for an award of costs in their favour.

Orders

Orders of the court

That the oral Application by the Applicant for costs is dismissed.

That there be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.