Bradbury and Lander (No. 3) - [2019] FamCA 152

FAMILY COURT OF AUSTRALIA

BRADBURY & LANDER (NO. 3)

[2019] FamCA 152

FAMILY LAW – COSTS

Family Law Act 1975 (Cth) - ss 70NEB & 70NEC

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536
Firth & Hale-Forbes (No. 2) [2013] FamCA 814
Graft & McCormick (Costs) [2018] FamCAFC 82
Grant & Russell [2014] FamCA 589

APPLICANT:

Mr Bradbury

RESPONDENT:

Ms Lander

INDEPENDENT CHILDREN’S LAWYER:

Yeend & Associates

FILE NUMBER:

CAC

239

2017

DATE DELIVERED:

20 March 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

14 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J Haddock

SOLICITOR FOR THE APPLICANT:

Infinity Legal

SOLICITOR FOR THE RESPONDENT:

Self-Represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M Burgess

Orders

It is ordered that the Respondent pay to the Applicant his costs of the proceedings on the basis set out below, as agreed or as assessed:
(a) Half of his costs:
(i)Relating to the commencement of the contravention proceedings;
(ii)From the commencement of the contravention proceedings until delivery of judgment on 24 January 2019.
(b) His costs:
(i)From the delivery of judgment in relation to the contraventions on 24 January 2019 until the delivery of judgment in relation to the imposition of a Bond upon the Respondent on 14 March 2019.

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

The Father seeks the costs of his contravention proceedings. He sought that the Mother be dealt with for eight contraventions, of which four were found. These were dealt with as less serious contraventions pursuant to s 70NEB of the Family Law Act 1975 and disposed of by way of Bond per s 70NEC.
The Father now seeks indemnity costs or in the alternative his costs. The Mother asked that her expenses for missed work in order to prepare for the case be met as her costs.
The Father relies upon a number of matters to justify his claim. He relies upon the Mother's conduct the proceedings. By way of example, he identifies that in the lead up to the last part of the proceedings that dealt with the imposition of the Bond the Mother, contrary to the directions for filing, late filed an affidavit of 70 pages along with an adjournment application with a further supporting affidavit…

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 Bradbury and Lander (No. 3)

Details

AGLC: Bradbury and Lander (No. 3) [2019] FamCA 152
Case: [2019] FamCA 152
Decision Date: 20 March 2019

CaseChat Overview and Summary

In *Bradbury and Lander (No. 3)*, the applicant sought costs from the respondent following proceedings before Gill J. The dispute concerned contravention proceedings and the subsequent imposition of a bond upon the respondent.

The court was required to determine the appropriate basis for awarding costs to the applicant, specifically how to apportion those costs in light of the different stages of the proceedings and the outcomes reached at each stage.

Gill J ordered that the respondent pay the applicant's costs on a divided basis. Half of the applicant's costs were awarded in relation to the commencement of the contravention proceedings and the period from their commencement until the judgment on 24 January 2019. The applicant's full costs were awarded from the delivery of the judgment on contraventions until the delivery of the judgment imposing the bond on 14 March 2019.

Orders

Orders of the court

It is ordered that the Respondent pay to the Applicant his costs of the proceedings on the basis set out below, as agreed or as assessed:

(a) Half of his costs:

(i) Relating to the commencement of the contravention proceedings;

(ii) From the commencement of the contravention proceedings until delivery of judgment on 24 January 2019.

(b) His costs:

(i) From the delivery of judgment in relation to the contraventions on 24 January 2019 until the delivery of judgment in relation to the imposition of a Bond upon the Respondent on 14 March 2019.

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

Background

Background to the litigation

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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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