BOSWORTH & FIRKINS - [2013] FamCA 7

FAMILY COURT OF AUSTRALIA

BOSWORTH & FIRKINS

[2013] FamCA 7

FAMILY LAW - COSTS – Where substantive proceedings in the Family Court were brought under the Domestic Relationships Act 1994 (ACT) – Whether the laws of the Australian Capital Territory or the Family Law Act 1975 (Cth) apply – cross-vested jurisdiction – where the Court exercised jurisdiction of the Supreme Court of the ACT

FAMILY LAW - COSTS – Offer of settlement – whether a Calderbank offer was sufficient to justify a departure from the ordinary rule that costs follow the event – where the substantive proceedings involved complex matters in need of judicial determination – no order as to costs.

Court Procedures Rules 2006 (ACT), r 1721
Family Law Act 1975 (Cth), s 117
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 9, 11
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT), s 12

Ferris v Winslade [1998] ACTSC 38
Kilby v O’Brien [2006] ACTSC 90
Rural and General Insurance Broking Pty Ltd v APRA (2009) 231 FLR 199
Quirk v Bawden (1992) 111 FLR 115

APPLICANT:

Ms Firkins

RESPONDENT:

Mr Bosworth

FILE NUMBER:

CAC

1468

2009

DATE DELIVERED:

18 January 2013

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

Submissions received by the applicant on 22 October 2012 and 9 November 2012; submissions received by the respondent on 5 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Phelps Reid

Orders

There be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: CAC 1468 of 2009

Ms Firkins

Applicant

And

Mr Bosworth

Respondent

REASONS FOR JUDGMENT IN RELATION TO COSTS

Introduction

On 19 October 2012 I made final orders and delivered reasons for judgment in relation to the division of property of the parties pursuant to the Domestic Relationships Act 1994 (ACT). The substantive final orders I made were as follows.
(1)The respondent, [Ms Firkins], pay to the applicant, [Mr Bosworth], the sum of $106,240 within 60 days of the date of these Orders.
(2)Otherwise, each party is the sole owner of any property currently in their name or possession and each party is solely liable for any liability currently in his or her name, or secured over any item of property currently in his or her possession.
In the substantive proceedings, Mr Bosworth was the applicant and Ms Firkins was the respondent. However, in relation to this application for a costs order, Ms Firkins is now the applicant and Mr Bosworth is the respondent. For ease of reference, I will refer to each party by their name.
On 22 October 2012 Ms Firkins’ submissions as to costs were filed and on 5 November 2012 Mr Bosworth filed…

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 BOSWORTH & FIRKINS

Details

AGLC: BOSWORTH & FIRKINS [2013] FamCA 7
Case: [2013] FamCA 7
Decision Date

CaseChat Overview and Summary

In *Bosworth & Firkins* [2013] FamCA 7, the Family Court of Australia considered an application for costs following substantive property settlement proceedings. The original proceedings were brought under the *Domestic Relationships Act 1994* (ACT) and were heard by the Family Court exercising the cross-vested jurisdiction of the Supreme Court of the Australian Capital Territory. Ms Firkins, the respondent in the substantive proceedings, sought an order that Mr Bosworth, the applicant, pay her costs. Mr Bosworth sought an order that each party bear their own costs.

The primary legal issue before the Court was which legislative framework governed the costs application: the *Family Law Act 1975* (Cth) or the laws of the Australian Capital Territory. A further issue was whether a settlement offer made by Ms Firkins constituted special circumstances justifying a departure from the ordinary rule that costs follow the event. The Court also considered the application of the principle that costs follow the event in complex matters where issues were resolved in favour of different parties.

The Court determined that because it was exercising the cross-vested jurisdiction of the Supreme Court of the ACT, the law of the ACT, specifically Rule 1721 of the *Court Procedures Rules 2006* (ACT), applied to the costs application, not Section 117 of the *Family Law Act 1975* (Cth). Under ACT law, costs are in the discretion of the court, and ordinarily follow the event unless special circumstances exist. The Court noted that while Ms Firkins had made a settlement offer that was close to the final outcome, the substantive proceedings involved significant complexities and disparate positions on issues such as the end date of the relationship, add-backs, and contributions, which necessitated judicial determination. The Court found that these complexities meant that the matter required judicial resolution and that the conduct of the parties did not warrant a costs order.

Consequently, the Court made no order as to costs, meaning each party was to bear their own costs of the proceedings.

Orders