Dubois & Kusumo (No 2)

[2019] FamCA 641

FAMILY COURT OF AUSTRALIA

DUBOIS & KUSUMO (NO. 2) [2019] FamCA 641

FAMILY LAW – COSTS – whether an order under s 117(2A) should be made on an interim basis – untested evidence – whether one party’s success on certain issues debated on an interim basis equated to that party being “wholly successful” – desirability of determining costs issues after a full ventilation of all facts at trial – held, costs to be determined at trial.

Family Law Act 1975 (Cth), s 117
Family Law Rules 2004 (Cth), r 19.18

Colgate Palmolive Co v Cussens Pty Ltd (1993) 46 FCR 225
Dubois & Kusumo [2019] FamCA 567
In the Marriage of Hogan (1986) 10 Fam LR 681
In the Marriage of Wilson (1989) 13 Fam LR 205
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Dubois

RESPONDENT: Mr Kusumo

FILE NUMBER: MLC 8329 of 2017

DATE DELIVERED: 11 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

BY WAY OF WRITTEN SUBMISSIONS: 6 September 2019

SUBMISSIONS RECEIVED FROM:

COUNSEL FOR THE APPLICANT: Mr L Wraith

SOLICITOR FOR THE APPLICANT: Peter Szabo Family Law

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Waterson Legal

Orders

Costs of and incidental to this application are to be determined after the trial of this proceeding.

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 Dubois & Kusumo 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 8329 of 2017

Ms Dubois

Applicant

And

Mr Kusumo

Respondent

REASONS FOR JUDGMENT

Introduction

1. Following the provisions of reasons handed down on 21 August 2019 (Dubois & Kusumo),[1] the applicant has sought the costs of the application in relation to the refundable accommodation deposit (“RAD”).  She sought payment of the sum of $19 730 as itemised in written submissions prepared by Mr Wraith of counsel.

   [1] [2019] FamCA 567

2. In essence, the applicant argued she should have her costs because –

   a)she had been wholly successful on each of the three discrete applications argued before me;

   b)conversely the respondent has been wholly unsuccessful on each of those three applications; and

   c)the financial circumstances of the applicant are such that continuing legal costs place significant financial pressure on the applicant.

3. Conversely, the respondent submitted that the applicant’s costs should not be paid by him.  In essence, he contended –

   a)it was erroneous for the applicant to say she had been wholly successful in the applications on 14 August 2019;

   b)at no…