Benworth and Benworth (Costs)

FAMILY COURT OF AUSTRALIA

BENWORTH & BENWORTH (COSTS) [2012] FamCAFC 116

FAMILY LAW – APPEAL – COSTS – where the appellant wife was successful on two out of 11 grounds of appeal – where the respondent husband seeks a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”) in respect of the two successful grounds of appeal, and an order that the appellant pay his costs of and incidental to the remaining nine grounds – where the appellant similarly seeks a costs certificate pursuant to s 6 of the Costs Act – where s 6 pertains solely to respondents – where ss 7 and 9 of the Costs Act pertain to appellants – where a precondition to the exercise of power pursuant to ss 6, 7 and 9 is a determination of the question of the costs of the appeal – consideration of s 117 of the Family Law Act 1975 (Cth) – where the Court is not persuaded that the circumstances of this case justify an order for costs being made – where the parties ordered to bear their own costs.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Fitzgerald(as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
In the Marriage of I and I (No 2) (1995) FLC 92-625
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Benworth

RESPONDENT: Mr Benworth

FILE NUMBER: SYC 8541 of 2007

APPEAL NUMBER: EA 74 of 2011

DATE DELIVERED: 9 August 2012

PLACE DELIVERED: Brisbane

JUDGMENT OF: Bryant CJ, Strickland and Murphy JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 13 May 2011

LOWER COURT MNC: [2011] FamCA 328

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Kearney

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms L Judge

SOLICITOR FOR THE RESPONDENT: Goldrick Farrell Mullan Solicitors

Orders

1. The time for the filing of written submissions as to costs by the respondent husband be extended so as to permit reliance upon submissions filed 30 March 2012.

2. Each party shall bear their own costs of and incidental to this appeal.

3. The application by each party for certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 74 of 2011
File Number: SYC 8541 of 2007

MS BENWORTH

Appellant

And

MR BENWORTH

Respondent

REASONS FOR JUDGMENT

(COSTS)

1. At the conclusion of this appeal, orders were made for the filing of written submissions as to costs. Submissions by each of the parties were subsequently received.  The respondent husband’s submissions were received two days beyond the…