Colburn & Cleese (No 2)
[2022] FedCFamC1F 426
Federal Circuit and Family Court of Australia
(DIVISION 1)
Colburn & Cleese (No 2) [2022] FedCFamC1F 426
File number(s): SYC 2480/2016 Judgment of: ALTOBELLI J Date of judgment: 6 June 2022 Catchwords: FAMILY LAW – PROPERTY – Costs Application – Where the Applicant seeks costs following threshold hearing in which a finding was made in her favour – Where the Respondent has filed a Notice of Appeal in relation to the first instance threshold hearing – Where the Applicant contends she requires a costs orders to fund the appeal – Where the Respondent contends that the costs application should be stayed until outcome of the appeal – Finding that the costs application should be stayed until outcome of the appeal Legislation: Family Law Act 1975 (Cth) s 90RD Division: Division 1 First Instance Number of paragraphs: 4 Date of hearing: 6 June 2022 Place: Sydney Solicitor Advocate for the Applicant: Ms Dorter Solicitor for the Applicant: Dorter Family Lawyers and Mediators Solicitor Advocate for the Respondent: Ms McKinnon Solicitor for the Respondent: Bryant McKinnon Lawyers ORDERS
SYC 2480 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CLEESE
Applicant
AND: MR COLBURN
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
6 JUNE 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Applicant on 30 May 2022 seeking costs be adjourned to a date to be advised following the outcome of the Notice of Appeal filed 30 May 2022.
2.The parties are to notify chambers within 72 hours of any decision in respect to the Notice of Appeal filed 30 May 2022.
THE COURT NOTES THAT:
A.This Court has encouraged the parties to consider making an application for the expedition of the hearing of the Notice of Appeal filed 30 May 2022 having regards to the age and the state of health of the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cleese & Colburn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
Following orders made by this Court on 2 May 2022, which effectively resulted in Ms Cleese (“the Applicant”) being successful in her application under s 90RD of the Family Law Act 1975 (Cth), at least in many respects. The Applicant brings an Application in a Proceeding seeking costs (“the costs application”) which was filed on 30 May 2022. The Respondent filed a Notice of Appeal on 30 May 2022 (“the appeal”). In response to the costs application, the Respondent asks the Court through his counsel to adjourn the costs application. The Court has granted that application for the following reasons.
These proceedings are complex. It has a very long history. The appeal could not be described as frivolous in any way. It raises arguable points. The Applicant’s submissions suggest that because of her parlous financial circumstances, she actually needs a costs order in order to fund the appeal.
The issue with that is that even if the Court were to make a costs order it would not necessarily be paid in time for the appeal, and it could possibly be the subject of further Notice of Appeal. In the circumstances to deal with a costs application at this point would be futile. The better course for the parties would be for them to seek expedition of the hearing of the appeal and for the issue of costs to then be revisited, given the outcome of that appeal. Of course, a wiser course would be for both parties to reappraise their situation and see if that would lead to some compromise and settlement of their case. Regrettably, the long litigation history of this matter suggests that that is unlikely.
Nonetheless, it is worth reminding the parties that at any time they can take back control of this litigation and resolve it on terms suitable to themselves. Accordingly, the costs application is adjourned to a date to be advised. The parties are to notify chambers within 72 hours of the outcome of any Notice of Appeal.
I certify that the preceding four (4) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 6 June 2022
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