Bradbury and Lander (No 2)

[2020] FamCA 720

FAMILY COURT OF AUSTRALIA

BRADBURY & LANDER (NO. 2) [2020] FamCA 720

FAMILY LAW – COSTS – where the Wife was wholly unsuccessful – where it is appropriate to make a costs order at the specific amount sought by the Husband

Family Law Act 1975 (Cth) – s 117
Family Law Rules 2004 (Cth) – Itemised Scale of Costs, r 19.18(1)

Atkinson & Atkinson (No2) [2019] FamCA 437

APPLICANT: Mr Bradbury

RESPONDENT: Ms Lander

FILE NUMBER: CAC 239 of 2017

DATE DELIVERED: 1 September 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE:  27 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. Ms Lander is to pay to Mr Bradbury, in accordance with a written direction provided by his solicitor, costs in the sum of $3 117.06 within 28 days of these orders;

2. That the Husband’s Application in a Case filed on 20 July 2020 is otherwise dismissed.

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 Bradbury & Lander 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 CANBERRA

FILE NUMBER: CAC 239 of 2017

Mr Bradbury

Applicant

And

Ms Lander

Respondent

REASONS FOR JUDGMENT

1. This matter concerns competing costs applications in relation to a contested divorce application made by the Husband.  The Husband was, despite the opposition of the Wife, successful in obtaining the divorce order in July 2020.

2. Costs are governed by s 117 of the Family Law Act 1975 (Cth), which provides a scheme whereby the starting point is that each party shall bear his or her own costs unless, taking into account the matters contained at s 117(2A), that position should be departed from.

3. In seeking to depart from that position, the Husband relied firstly on the conduct of the Wife in relation to his divorce application.  In short, he pointed to it having been plain that there was no proper basis in law for the Wife to have opposed the divorce application, causing it to proceed to a contested hearing.

4. Although the Wife is unrepresented, the solicitor for the Husband took the step of writing to the Wife to set out the legal principles that govern the divorce application. 

5. The Wife then sought to resist the application on the basis that, despite the parties having lived separately and apart for a continuous period of 12 months immediately prior to the filing to the application for divorce, there was a reasonable likelihood that cohabitation would be resumed.  This was…