Atkinson and Atkinson (No. 3) - [2017] FamCA 968

FAMILY COURT OF AUSTRALIA

ATKINSON & ATKINSON (NO. 3)

[2017] FamCA 968

FAMILY LAW – COSTS – Where application for costs of dismissed stay application – Where consideration of applicable principles – Where stay application wholly unsuccessful – Where proper for costs order to be made in assessed sum.

Family Law Act 1975 (Cth) s 117

Atkinson & Atkinson (No. 2) [2017] FamCA 544
Hawkins & Roe [2012] FamCAFC 77
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Mr Atkinson

RESPONDENT:

Ms Atkinson

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan

FILE NUMBER:

PAC

4343

2013

DATE DELIVERED:

29 November 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 28 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Taylor of Kheir Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Khalil of Fay Rose Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

That within one month from this date the father pay the mother’s costs in the sum of $3,263.00.

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 Atkinson & Atkinson (No. 3) 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 PARRAMATTA

FILE NUMBER: PAC 4343 of 2013

Mr Atkinson

Applicant

And

Ms Atkinson

Respondent

REASONS FOR JUDGMENT

The present application for determination is the mother’s Application for costs arising from the father’s failed Application for Stay of certain interim parenting orders made that are presently the subject of an appeal to the Full Court of the Family Court of Australia.
The father’s application for stay was dismissed on 17 June 2017 (Atkinson & Atkinson (No. 2) [2017] FamCA 544).
It was otherwise ordered on that day:
That any application for costs be by way of written submission filed within 28 days from this date with any submissions in response within a further 14 days thereafter judgment reserved to chambers.
Written submissions as to costs were received from the mother on 28 August 2017 supported by an Affidavit by her solicitor filed 28 August 2017.
No submissions have been received from the father.

Costs

Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in…

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 Atkinson and Atkinson (No. 3)

Details

AGLC: Atkinson and Atkinson (No. 3) [2017] FamCA 968
Case: [2017] FamCA 968
Decision Date: 29 November 2017

CaseChat Overview and Summary

This matter concerned an application by the father for orders regarding the costs of proceedings between the parties, Atkinson and Atkinson (No. 3), heard before Foster J. The dispute revolved around the allocation of legal costs incurred during earlier proceedings.

The primary legal issue before the court was the determination of the quantum of costs to be awarded to the mother and the extent to which the father should be ordered to pay those costs.

Foster J ordered that the father pay the mother's costs in the sum of $3,263.00. This order was to be effective within one month from the date of the judgment, subject to the formal entry of the order in the Court's records.

Orders

Orders of the court

That within one month from this date the father pay the mother’s costs in the sum of $3,263.00.

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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