DENISON & TILFORD - [2020] FamCA 604

FAMILY COURT OF AUSTRALIA

DENISON & TILFORD

[2020] FamCA 604

FAMILY LAW – COSTS – application by wife for indemnity costs – alleged that consent orders only came about by forcing the respondent on for orders – not appropriate to deviate from s 117(1) – application for costs dismissed.

Family Law Act 1975 (Cth) ss 117(1), 117(2A)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish (2005) 33 Fam LR 123
Guild & Stasiuk (No. 2) [2020] FamCA 564
Horne (in his capacity as trustee of the bankrupt estate of Narain) v Narain [2017] FCCA 1190
Latoudis v Casey (1990) 170 CLR 534
Re JJT; ex parte Victoria Legal Aid (1998) 195 CLR 184

APPLICANT:

Ms Denison

RESPONDENT:

Mr Tilford

FILE NUMBER:

MLC

9252

2017

DATE DELIVERED:

24 July 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

17 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D. Sweeney

SOLICITOR FOR THE APPLICANT:

Lander and Rogers

COUNSEL FOR THE RESPONDENT:

Mr G. Dickson QC

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

The applicant’s application for indemnity costs of and incidental to the hearing on 17 July 2020 is dismissed.

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 pseudonym Denison & Tilford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9252 of 2017

Ms Denison

Applicant

And

Mr Tilford

Respondent

REASONS FOR JUDGMENT

Introduction

On 17 July 2020 Mr Sweeney of counsel on behalf of the applicant and Mr Dickson One of Her Majesty’s Counsel on behalf of the respondent announced that they had reached an agreed set of orders that further progresses this proceeding through its interlocutory phases.
Mr Sweeney’s client sought an order that Mr Dickson’s client pay the applicant’s costs of and incidental to the appearance on 17 July 2020 on an indemnity basis. Mr Dickson QC said no order as to costs should be made. He said even an order reserving costs presupposed that the conventional order under s 117(1) was to be countermanded.
Having examined this litigation and the lead up to the events on 17 July 2020, I am now better informed to make a determination on the question of costs of and incidental to the hearing on 17 July 2020.

Synopsis

For the reasons that now follow, I am of the view that the provisions of s 117(1) apply and that each party should bear…

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 DENISON & TILFORD

Details

AGLC: DENISON & TILFORD [2020] FamCA 604
Case: [2020] FamCA 604
Decision Date: 24 July 2020

CaseChat Overview and Summary

In *Denison & Tilford*, the applicant wife sought indemnity costs from the respondent husband in relation to a hearing on 17 July 2020. The wife contended that the consent orders made on that date were only achieved because she had "forced the respondent on" to agree to them.

The central legal issue before Wilson J was whether the circumstances warranted a departure from the usual costs rule under section 117(1) of the *Family Law Act 1975* (Cth), which generally provides that each party to proceedings under the Act shall bear their own costs. Specifically, the court had to determine if the wife's conduct in allegedly compelling the husband to agree to the consent orders constituted exceptional circumstances justifying an award of indemnity costs.

Wilson J found that the wife's assertion of having "forced" the husband into the consent orders did not meet the threshold for deviating from the standard costs provisions. The court determined that it was not appropriate to depart from the general rule that parties bear their own costs in family law proceedings, implying that the conduct alleged did not amount to the kind of misconduct or unreasonable behaviour that would typically justify an indemnity costs order.

Consequently, the applicant wife's application for indemnity costs of and incidental to the hearing on 17 July 2020 was dismissed.

Orders

Orders of the court

The applicant’s application for indemnity costs of and incidental to the hearing on 17 July 2020 is 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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