Balfe and Moody (No 2) - [2019] FamCA 711

FAMILY COURT OF AUSTRALIA

BALFE & MOODY (NO. 2)

[2019] FamCA 711

FAMILY LAW – COSTS – Consideration of applicable principles – Where father in custody – Where father’s conduct unnecessarily protracted proceedings – Where father ordered to pay contribution to the mother’s costs in the sum of $40,000.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Balfe & Moody [2019] FamCA 474
Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Collins & Collins (1985) FLC 91-603
Greedy & Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka & Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Ms Balfe

RESPONDENT:

Mr Moody

FILE NUMBER:

PAC

2239

2017

DATE DELIVERED:

4 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 4 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Watson Law Pty Ltd

RESPONDENT – SELF-REPRESENTED LITIGANT:

Mr Moody

Orders

That the father Mr Moody pay to the mother Ms Balfe, or as she may otherwise direct the father in writing, the sum of $40,000 by way of contribution to the mother’s costs.
That the sum provided for in Order 1 be paid to the mother from the balance of proceeds of sale of properties the subject of sale orders made 17 July 2019.

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 Balfe & Moody 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 2239 of 2017

Ms Balfe

Applicant

And

Mr Moody

Respondent

REASONS FOR JUDGMENT

The application for determination is the mother’s application for costs arising from interim proceedings determined by Reasons for Judgment delivered 17 July 2019. The interim proceedings arise in the context of pending final property proceedings between the parties.
On 17 July 2019 the Court made the following orders:
(1)That for the purposes of Orders made 19 November 2018 Karen Watson, Solicitor be appointed Trustee for sale of the of the real estate properties situate at C Street, Town A in the State of New South Wales being Folio ID … and Folio ID … and D Street, Town B in the State of New South Wales being Folio ID … for the purpose of selling those properties at the best price reasonably obtainable…

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 Balfe and Moody (No 2)

Details

AGLC: Balfe and Moody (No 2) [2019] FamCA 711
Case: [2019] FamCA 711
Decision Date: 4 October 2019

CaseChat Overview and Summary

In *Balfe and Moody (No 2)*, Foster J of the Federal Circuit Court of Australia considered an application by the mother, Ms Balfe, for an order that the father, Mr Moody, contribute to her legal costs. The dispute arose in the context of family law proceedings concerning property settlement and parenting arrangements.

The primary legal issue before the court was whether it was appropriate to make an order for costs against the father, and if so, the quantum of that contribution. This involved assessing the conduct of the parties during the proceedings and the overall financial circumstances to determine if a costs order was warranted and to what extent.

Foster J reasoned that a costs order was justified due to the father's conduct during the litigation, which had unnecessarily prolonged the proceedings and increased the mother's legal expenses. Applying the principles of costs in family law matters, which allow for orders to be made based on the conduct of the parties, the court determined that a contribution towards the mother's costs was appropriate. The court considered the father's capacity to pay and the nature of the costs incurred.

Consequently, Foster J ordered that the father pay the sum of $40,000 to the mother as a contribution to her costs. This payment was to be made from the proceeds of sale of certain properties, as previously ordered by the court.

Orders

Orders of the court

That the father Mr Moody pay to the mother Ms Balfe, or as she may otherwise direct the father in writing, the sum of $40,000 by way of contribution to the mother’s costs.

That the sum provided for in Order 1 be paid to the mother from the balance of proceeds of sale of properties the subject of sale orders made 17 July 2019.

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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