Conrad and Conrad and Anor (No 3) - [2019] FamCA 849

FAMILY COURT OF AUSTRALIA

CONRAD & CONRAD & ANOR (NO. 3)

[2019] FamCA 849

FAMILY LAW – COSTS – Where costs applications were made by each party after a trial was conducted between the wife, the husband and his sister as to the interests of each of them in respect of property of the parties and property was split 55/45 in favour of the wife – Where the costs applications of the husband, his sister and an application made by the wife in 2015 are dismissed – Where the recent written offer to settle the matter after the adjourned trial last year would have left the husband $143,000 better off than going to trial – Where the costs application of the wife is partly successful.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Ms Conrad

FIRST RESPONDENT:

Mr Conrad

SECOND RESPONDENT:

Ms Stocks

FILE NUMBER:

BRC

5264

2013

DATE DELIVERED:

19 November 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

24 June 2019

REPRESENTATION

THE APPLICANT:

Self-represented

COUNSEL FOR THE FIRST RESPONDENT:

Mr Hackett

SOLICITOR FOR THE FIRST RESPONDENT:

Holloway Jenkins

COUNSEL FOR THE SECOND RESPONDENT:

Mr Hackett

SOLICITOR FOR THE SECOND RESPONDENT:

Holloway Jenkins

Orders

The Applicant wife’s application for the First Respondent husband to pay her costs of the interim maintenance proceedings heard on 1 June 2015, is dismissed.
The First Respondent husband’s application for the Applicant wife to pay his costs of and incidental to the property adjustment and spousal maintenance proceedings, is dismissed.
The Second Respondent’s application for the Applicant wife to pay her costs of and incidental to the property adjustment proceedings, is dismissed.
The Orders made on 15 April 2019, are discharged.
The First Respondent husband shall pay the Applicant wife’s costs of and incidental to the property adjustment proceedings from and including Monday, 9 July 2018, such costs to be on a party and party basis, as agreed, or to be assessed according to the Scale of Costs set out in the Family Law Rules 2004 (Cth).
The First Respondent husband shall pay the Applicant wife’s costs of and incidental to his application to discharge, suspend or vary the interim spousal maintenance order of 5 June 2015 pursued through his filing of an Application in a Case on 20 February 2017 and his filing of an Application in a Case to review the Senior Registrar’s decision on 15 November 2017, including the costs of the hearing before Senior Registrar Spink on that issue and that much of the trial before me devoted to that issue, such costs to be on a party and party basis, as agreed, or to be assessed according to the Scale of Costs set out in the Family Law Rules 2004 (Cth).

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…

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.

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Details

Case: [2019] FamCA 849
Decision Date: 19 November 2019

CaseChat Overview and Summary

In *Conrad and Conrad and Anor (No 3)*, Forrest J of the Federal Circuit Court of Australia considered applications for costs following property adjustment and spousal maintenance proceedings. The applicant wife sought costs from the first respondent husband for interim maintenance proceedings, while the first respondent husband sought costs from the applicant wife for property adjustment and spousal maintenance proceedings. The second respondent also sought costs from the applicant wife for property adjustment proceedings.

The central legal issues before the court were the allocation of costs for various stages of the proceedings, including interim maintenance, property adjustment, and applications to discharge or vary interim orders. The court was required to determine which party, if any, should bear the costs associated with these distinct phases of the litigation.

Forrest J's reasoning led to a complex cost order, reflecting the court's assessment of the conduct of the parties throughout the litigation. The court dismissed the wife's application for costs of the interim maintenance proceedings and the husband's and second respondent's applications for costs of the property adjustment proceedings. However, the husband was ordered to pay the wife's costs for the property adjustment proceedings from a specified date, and also her costs related to his applications to discharge, suspend, or vary the interim spousal maintenance order. The court also discharged previous orders made on 15 April 2019.

Orders

Orders of the court

The Applicant wife’s application for the First Respondent husband to pay her costs of the interim maintenance proceedings heard on 1 June 2015, is dismissed.

The First Respondent husband’s application for the Applicant wife to pay his costs of and incidental to the property adjustment and spousal maintenance proceedings, is dismissed.

The Second Respondent’s application for the Applicant wife to pay her costs of and incidental to the property adjustment proceedings, is dismissed.

The Orders made on 15 April 2019, are discharged.

The First Respondent husband shall pay the Applicant wife’s costs of and incidental to the property adjustment proceedings from and including Monday, 9 July 2018, such costs to be on a party and party basis, as agreed, or to be assessed according to the Scale of Costs set out in the Family Law Rules 2004 (Cth).

The First Respondent husband shall pay the Applicant wife’s costs of and incidental to his application to discharge, suspend or vary the interim spousal maintenance order of 5 June 2015 pursued through his filing of an Application in a Case on 20 February 2017 and his filing of an Application in a Case to review the Senior Registrar’s decision on 15 November 2017, including the costs of the hearing before Senior Registrar Spink on that issue and that much of the trial before me devoted to that issue, such costs to be on a party and party basis, as agreed, or to be assessed according to the Scale of Costs set out in the Family Law Rules 2004 (Cth).

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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