Blakeley and Jaine (No. 4) - [2020] FamCA 811

FAMILY COURT OF AUSTRALIA

BLAKELEY & JAINE (NO. 4)

[2020] FamCA 811

FAMILY LAW – COSTS – indemnity costs sought by respondent following the applicant’s unsuccessful stay application – stay application was opportunistic – held, indemnity costs payable.

Family Law Act 1975 (Cth), s 117

Armington & Armington and Ors (No. 2) [2020] FamCA 765
Colgate–Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Goodridge & Beadle [2019] FamCA 786
Harlen & Hellyar (No 2) [2020] FamCA 413
Hearl & Digby [2020] FamCA 474
Re JJT; ex parte Victoria Legal Aid (1998) 195 CLR 184

APPLICANT:

Mr Blakeley

RESPONDENT:

Ms Jaine

FILE NUMBER:

SYC

7125

2018

DATE DELIVERED:

25 September 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

21 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Mr S. Schonell

SOLICITOR FOR THE RESPONDENT:

Dorter Family Lawyers

Orders

Pursuant to s 117(2) of the Family Law Act the husband must pay the wife’s costs of and incidental to the stay application to be assessed by a registrar of this court on an indemnity basis

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 Blakeley & Jaine 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 MELBOURNE

FILE NUMBER: SYC 7125 of 2018

Mr Blakeley

Applicant

And

Ms Jaine

Respondent

REASONS FOR JUDGMENT

On Monday 21 September 2020 I handed down my reasons for judgment on the husband’s application for a stay pending appeal of orders requiring the father to make spousal maintenance payments. I dismissed the husband’s stay application. The wife now seeks an order that the husband pay the wife’s costs of and incidental to the stay application on an indemnity basis.
In invoking an order under s 117(2) of the Family Law Act, the wife relies on s 117(2A) of the Family Law Act, especially the subsection that speaks of one party being wholly unsuccessful in the proceeding as a whole or an aspect of the proceeding.
The husband resists any order for costs contending that his financial circumstances were such that he not only appealed against my orders made in March of this year but he was required, so he said, to seek a stay of those orders on account of his financial circumstances pending the hearing and determination of his appeal.
The wife filed submissions in relation to costs on 23 September 2020. In essence she seeks costs to be paid by…

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: [2020] FamCA 811
Decision Date: 25 September 2020

CaseChat Overview and Summary

In *Blakeley and Jaine (No. 4)*, Wilson J of the Family Court of Australia considered an application by the respondent wife for indemnity costs following the applicant husband's unsuccessful application to stay proceedings.

The central legal issue before the court was whether the husband's stay application was so lacking in merit or so improperly brought as to warrant an order for indemnity costs in favour of the wife.

Wilson J determined that the husband's application for a stay was opportunistic and lacked a proper foundation. Applying the principles governing costs in family law matters, particularly the court's discretion under s 117(2) of the *Family Law Act 1975* (Cth), her Honour found that the circumstances justified an award of indemnity costs. This approach reflects the court's power to depart from the usual order for costs to be assessed on a party-and-party basis when conduct warrants it.

Consequently, the court ordered that the husband pay the wife's costs of and incidental to the stay application, to be assessed on an indemnity basis by a registrar of the court.

Orders

Orders of the court

Pursuant to s 117(2) of the Family Law Act the husband must pay the wife’s costs of and incidental to the stay application to be assessed by a registrar of this court on an indemnity basis

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

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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