Cloney and Cloney & Ors (No 2)

FAMILY COURT OF AUSTRALIA

CLONEY & CLONEY AND ORS (NO 2) [2015] FamCA 210

FAMILY LAW – COSTS – second and third respondents unsuccessful in application for summary dismissal – whether circumstances justify an order for costs against second and third respondents – the application for summary dismissal although unsuccessful was not unreasonable given the drafting of the wife’s application – wife’s oral application for costs is dismissed.

Family Law Act 1975 (Cth) s 117

Simmons & Simmons and Ors [2009] FamCA 76

APPLICANT: Ms A Cloney

SECOND RESPONDENT:	Mr B Cloney
THIRD RESPONDENT	Ms C Cloney

FILE NUMBER: ADC 3743 of 2013

DATE DELIVERED: 18 March 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cox, SC

SOLICITOR FOR THE APPLICANT: Voumard Lawyers

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: Ms Kari

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: Thomas Legal

Orders

1. The wife’s oral application for costs is dismissed.

1. Certified fit for Senior Counsel pursuant to r 19.50 of the Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cloney & Cloney & Ors (No 2) 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 ADELAIDE

FILE NUMBER:  ADC 3743 of 2013

Ms A Cloney

Applicant

And

Mr B Cloney
and

Ms C Cloney

Second and Third Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by the applicant wife for an order for costs against the second and third respondents in relation to the application the second and third respondents brought in relation to the summary dismissal of the wife’s claim against them.  The full particulars are set out in the written reasons for judgment delivered on 18 February 2015.  The necessary background to the matter is that the proceedings between the husband and wife have been on foot since October 2013.  There have been various amended initiating applications filed by the wife, the latter of which seeks declarations concerning the second and third respondents and claims for property held by the second and third respondents, be held on trust for the husband and wife.  I refer to those matters in detail in the judgment of 18 February 2015.  This needs to be seen in the context of the material in that judgment.  I will not recite all of it in these ex tempore reasons. 

2. The matters which have to be considered when dealing with the question of costs are, clearly, the provisions of s 117 of the Family Law Act1975 (Cth) (“the Act”) which state that, subject to subsection (2) and other irrelevant sections in this regard:

   Each party to proceedings under this Act shall bear his or her own costs

   Section 117(2) emphasises that –

   If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing…