Bergman & Bergman (No 3) - [2023] FedCFamC2F 198

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bergman & Bergman (No 3) [2023] FedCFamC2F 198

File number(s): BRC 220 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 24 February 2023

Catchwords: FAMILY LAW – costs application – whether a costs order should be made where a pre-trial settlement offer was more favourable for one party than the final orders – whether a costs order should be made where one party made a late application that caused delay – where a party caused delay but was successful in their late application – where the party seeking costs failed to disclose relevant information until late in the proceedings – costs application dismissed.

Legislation: Family Law Act 1975 (Cth) ss 75, 117

Cases cited:
Bergman & Bergman [2022] FedCFamC2F 1313

Bergman & Bergman (No 2) [2022] FedCFamC2F 1652

Division: Division 2 Family Law

Number of paragraphs: 37

Date of last submission/s: 11 November 2022 (written submissions only)

Place: Melbourne

Counsel for the Applicant: Mr M. Drysdale of senior counsel

Solicitor for the Applicant: O’Reilly Shaw Lawyers

Counsel for the Applicant: Mr J. Linklater-Steele of counsel

Solicitor for the Respondent: Wilsons The Family Lawyers
ORDERS

BRC 220 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BERGMAN

Applicant

AND:
MR BERGMAN

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

24 February 2023

THE COURT ORDERS THAT:
1.The Wife’s application for costs be and is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bergman & Bergman (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY

The question I must decide in this matter is whether there should be an order for costs pursuant to section 117 of the Family Law Act 1975 (Cth) (‘the Act’) arising from the conclusion of the proceedings.
I heard the matter over videolink while sitting in Brisbane on National Relief on 25 and 26 May 2022, where I adjourned the matter part-heard. The matter then resumed over videolink on 29 September 2022, when I had returned to sitting in Melbourne.
I delivered an ex tempore judgment on 26 May 2022 regarding the appointment of an adversarial expert, anonymised as Bergman & Bergman [2022] FedCFamC2F 1313 ‘the May judgment’.
I delivered Orders and oral reasons in 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.

Continue reading Bergman & Bergman (No 3)

Details

AGLC: Bergman & Bergman (No 3) [2023] FedCFamC2F 198
Case: [2023] FedCFamC2F 198
Decision Date

CaseChat Overview and Summary

The applicant, Ms Bergman, sought an order for costs from the court pursuant to section 117 of the Family Law Act 1975 (Cth) ('the Act'). The application was made after the conclusion of proceedings between the parties, Mr and Mrs Bergman, who were married and are now divorced. The applicant sought the order on two bases: first, that she had made an offer of settlement which was more favourable to the respondent than the final orders made by the court; and second, that the respondent had delayed the proceedings by filing an application to adduce expert evidence on the value of the parties' horses. The court dismissed the applicant's application for costs. The court held that while the applicant's offer of settlement was more favourable to the respondent, the applicant's conduct in relation to the disclosure of documents relating to the sale of the applicant's business and her evidence in relation to the value of the parties' horses was not frank and timely. The court further held that the applicant's conduct outweighed the heavy weight of the offer of settlement in favour of making an order for costs. The court also held that the respondent's late application to adduce expert evidence on the value of the horses did not justify an order for costs. The court noted that the respondent was successful in his application and that the value of the horses was ultimately much higher than the applicant had originally asserted. The court held that the respondent's late application did not cause significant delay or prejudice to the applicant. The court also noted that the applicant had a significant advantage over the respondent in understanding the value of the horses. The court dismissed the applicant's application for costs.

Orders