Coulter & Gerardine

Case [2015] FamCA 287


FAMILY COURT OF AUSTRALIA

COULTER & GERARDINE [2015] FamCA 287
FAMILY LAW – COSTS – Where the mother seeks indemnity costs against the father after parenting proceedings were resolved by consent orders but in circumstances where the father had maintained a primary application which he ultimately abandoned – Where the mother was a lawyer and sought costs not only for her own lawyers and out of pocket expenses but also for the professional work she did when acting for herself – Consideration of the Chorley exception and whether the mother was entitled to the costs of acting for herself – Consideration of s 117(2A) of the Family Law Act 1975 (Cth) – Where it is found that it is not appropriate to make an order for indemnity costs – Order for costs made in the mother’s favour on a party/party basis up to a certain date to include costs for her own legal work

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

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Cachia v Hanes and Anor (1994) 179 CLR 403
Calderbank v Calderbank [1975] 3 All ER 333
Colgate Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248
Dobree & Others v Hoffman (1996) WAR 36 Guss v Veenhuizen (No. 2) (1976) 136 CLR 47
Kohan & Kohan (1993) FLC 92-340
Kuay-Hoa & Hoa and Ors [2012] FamCA 1110
Munday v Bowman (1997) FLC 92-784
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Preston v Preston [1982] 1 All ER at 58
Re New Tel Ltd (in liq) (No 4) [2008] FCA 1085 Evidence Act 1995 (Cth)
Redmond & Redmond & Anor (Costs) [2014] FamCAFC 55
Rice v Asplund (1979) FLC 90-725
Scottish Benefit Society v Chorley (1884) 13 QBS 872
Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 39 FCR 288
Wong v Farkas [2014] NSWCA 29

Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

APPLICANT: Ms Coulter
RESPONDENT: Mr Gerardine
FILE NUMBER: MLC 557 of 2011
DATE DELIVERED: 23 April 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Watts J
HEARING DATE: 16 July 2014 (reserved in chambers)

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person
COUNSEL FOR THE RESPONDENT: Mr Bartfield QC / Ms Vohra
SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

Orders

  1. The applicant father pay to the respondent mother her costs of these proceedings from 13 July 2012 until 7 February 2014 (or the date of service on the mother of the father’s Further Amended Application filed 3 February 2014, whichever is the earlier) on a party/party basis as agreed or assessed in accordance with Schedule 3 of the Family Law Rules 2004 (“the Rules”), such costs to include payment to the mother in her capacity as…

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AGLC
Coulter & Gerardine [2015] FamCA 287
Case
[2015] FamCA 287
Decision Date

CaseChat Overview and Summary

In *Coulter & Gerardine*, heard by Watts J, the dispute concerned the costs of family law proceedings between the applicant father and the respondent mother. The orders indicate a history of litigation between the parties, with specific periods for which costs were to be determined.

The primary legal issues before the court were the assessment of the respondent mother's costs incurred between 13 July 2012 and 7 February 2014, and the reasonableness of engaging senior counsel. The court was required to determine whether these costs should be paid by the applicant father on a party/party basis, and whether the engagement of senior counsel was a reasonable expense to be allowed on assessment.

Watts J ordered that the applicant father pay the respondent mother's costs for the specified period on a party/party basis, as agreed or assessed under Schedule 3 of the Family Law Rules 2004. Crucially, these costs were to include payment to the mother for her own legal work during that time, calculated according to the same rules. Furthermore, the court certified that it was reasonable for the mother to engage senior counsel for appearances before Cronin J on 19 October 2012 and on other occasions, and that such costs should be allowed on a party/party basis upon assessment by the Registrar.

Orders

Orders of the court

1.

The applicant father pay to the respondent mother her costs of these proceedings from 13 July 2012 until 7 February 2014 (or the date of service on the mother of the father’s Further Amended Application filed 3 February 2014, whichever is the earlier) on a party/party basis as agreed or assessed in accordance with Schedule 3 of the Family Law Rules 2004 (“the Rules”), such costs to include payment to the mother in her capacity as solicitor doing her own legal work during the said period, calculated in accordance with Schedule 3 of the Rules.

2.

Pursuant to rule 19.50 of the Rules, I certify that it was reasonable for the mother to engage senior counsel as counsel to attend on her behalf before Cronin J on 19 October 2012 and on any other occasion that senior counsel has appeared on her behalf and I find that it is reasonable that the mother has engaged senior counsel to assist her in her case and that upon an assessment by the Registrar, senior counsel’s costs should be allowed on a party/party basis.

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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