CARTER & GREENHILL - [2019] FamCA 373

FAMILY COURT OF AUSTRALIA

CARTER & GREENHILL

[2019] FamCA 373

FAMILY LAW – COSTS – Where the father appealed parenting orders and brought an Application in a case seeking a stay of those orders – Appeal was withdrawn by father – S 117(2A) considerations – Where the mother brought an Application for Costs in the principal proceedings – Order application be dismissed – Where the mother brought an Application for Costs of the father’s stay on an indemnity basis – Order for party/party costs – Where the Independent Children’s Lawyer brought an Application for Costs of the father’s stay and in the principal proceedings – Order that the father pay the Independent Children’s Lawyer’s costs in relation to his application for a stay – Order that the parties each pay 50 per cent of the Independent Children’s Lawyer’s costs of the trial.

Family Law Act 1975 (Cth) ss 117, 118
Family Law Rules 2004 (Cth) r 19.08, 19.18

Yunghanns & Ors & Yunghanns (2000) FLC 93-029 adopting Sheppard J in Colgate-Palmolive Company & Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) FCR 225
Kohan & Kohan (1993) FLC 92-340
Muldoon & Carlyle (2012) FLC 93-513
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364; J Corp Pty Ltd v Australian Building Labourers Federation Union of Workers (WA Branch)(No 2) [1993] FCA 42; Colgate-Palmolive (supra and Yunghanns (supra).
Z (A Solicitor) v Limousin (Costs) [2010] FLC 93-433
De Roma & De Roma [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936
Reeves & Grinter [2016] FamCA 63
Pallas & Pallas (No 2) [2014] FamCA 1109
Firentes & Teung [2014] FamCA 1046
Gahen & Gahen (No 2) [2013] FamCA 936
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158

APPLICANT:

Mr Carter

RESPONDENT:

Ms Greenhill

FILE NUMBER:

SYC

8235

2015

DATE DELIVERED:

7 June 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

Tree J

HEARING DATE:

Last submission filed 27 November 2018

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Brendon Dunstan Solicitor

SOLICITORS FOR THE RESPONDENT:

Blackwell Short Lawyers

Orders

The mother’s Application in a Case filed 11 January 2018 is dismissed with no order as to costs.
That:
(a)The father is to pay the mother’s costs of and incidental to his Application in a Case filed 5 February 2018, such costs to be as agreed or assessed on a party/party basis;
(b)Otherwise the mother’s Application in a Case filed 25 July 2018 is dismissed.
That the parties are to each pay 50% of the Independent Children's Lawyer’s costs of the trial, in the sum of $16,419.50.
The father is to pay the Independent Children's Lawyer’s costs of and incidental to his Application in a Case filed 5 February 2018.
Otherwise all extant costs application are dismissed.

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

IT IS NOTED

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 CARTER & GREENHILL

Details

AGLC: CARTER & GREENHILL [2019] FamCA 373
Case: [2019] FamCA 373
Decision Date: 7 June 2019

CaseChat Overview and Summary

In the matter of *CARTER & GREENHILL*, heard by Tree J, the father appealed parenting orders and sought a stay of those orders. The father subsequently withdrew his appeal. The mother brought an application for costs in the principal proceedings, which was dismissed. The mother also sought costs on an indemnity basis for the father's stay application, and the Independent Children's Lawyer (ICL) sought costs for the father's stay application and in the principal proceedings.

The court was required to determine the appropriate costs orders in light of the father's withdrawn appeal and stay application, and the applications made by the mother and the ICL. Specifically, the court had to consider the relevant considerations under s 117(2A) of the *Family Law Act 1975* (Cth) when making costs orders.

Tree J ordered that the mother's application for costs in the principal proceedings be dismissed with no order as to costs. The father was ordered to pay the mother's costs of and incidental to his stay application, to be agreed or assessed on a party/party basis. The father was also ordered to pay the ICL's costs of and incidental to his stay application. Furthermore, the parties were each ordered to pay 50% of the ICL's costs of the trial. All other extant costs applications were dismissed.

Orders

Orders of the court

The mother’s Application in a Case filed 11 January 2018 is dismissed with no order as to costs.

That:

(a) The father is to pay the mother’s costs of and incidental to his Application in a Case filed 5 February 2018, such costs to be as agreed or assessed on a party/party basis;

(b) Otherwise the mother’s Application in a Case filed 25 July 2018 is dismissed.

That the parties are to each pay 50% of the Independent Children's Lawyer’s costs of the trial, in the sum of $16,419.50.

The father is to pay the Independent Children's Lawyer’s costs of and incidental to his Application in a Case filed 5 February 2018.

Otherwise all extant costs application are dismissed.

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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