Duncan and Duncan (No.3)

[2015] FCCA 945

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUNCAN & DUNCAN (No.3) [2015] FCCA 945

Catchwords:
FAMILY LAW – Application for costs – application by wife for enforcement response by husband seeking financial agreement be set aside or not enforced dismissed – subsequent order for payment of monies owing under financial agreement – application for costs by wife – whether costs order should be made – justifying circumstances – what order for costs should be made.

Legislation: 

Family Law Act 1975 (Cth), ss.117, 117, (2A)
Federal Circuit Court Rules 2001 (Cth), Div 21

Duncan & Duncan [2014] FCCA 2729

Duncan & Duncan (No.2) [2015] FCCA 944
Iphostrou & Iphostrou(No.3) (2011) FamCA 138
Wade & McPherson (2014) FCCA 1321
Freye & Gingo and Anor [2012] FamCA 942
Z (a solicitor) & Limousin [2010] FamCA FC 59
Penfold v Penfold (1980) 144 CLR 311
Latoudis v Casey (1990) 170 CLR 534
Cassidy & Murray (1995) FLC 92-633
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another [2005] FamCA 158
Kohan and Kohan (1993) FLC 92-340

Applicant: MS DUNCAN

Respondent: MR DUNCAN

File Number: MLC 10227 of 2012

Judgment of: Judge O’Sullivan

Hearing date: On the papers

Date of Last Submission: 20 April 2015

Delivered at: Melbourne

Delivered on: 30 April 2015

REPRESENTATION

Solicitors for the Applicant: Pearsons Lawyers Pty Ltd

Solicitors for the Respondent: Sebastian Rubera & Associates

ORDERS

1. The husband pay the costs of the wife in accordance with Chapter 19 of the Family Law Rules 2004 and in default of agreement as assessed in accordance with the provisions of Part 19 of the Family Law Rules.

IT IS NOTED that publication of this judgment under the pseudonym Duncan & Duncan (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 10227 of 2012

MS DUNCAN

Applicant

And

MR DUNCAN

Respondent

REASONS FOR JUDGMENT

1. These reasons for decision concern an application by Ms Duncan (“the wife”) for costs arising from proceedings that were commenced by her against Mr Duncan (“the husband”).

2. The background to these proceedings is set out in Duncan & Duncan [2014] FCCA 2729. For the reasons set out in that decision the Court dismissed an argument made by the husband that a financial agreement entered into between the parties and dated 18 November 2009 wasn’t enforceable and/or should be set aside. As the reasons published as Duncan & Duncan [2014] FCCA 2729 make clear the financial agreement was found by the Court to be binding.

3. On 20 February 2015 the Court made the following orders for the reasons set out in Duncan & Duncan (No.2) [2015] FCCA 944:

   “THE COURT DECLARES THAT:

   1.The sum outstanding to the Applicant wife by way of enforcement of the Binding Financial Agreement dated 18 November 2009 is $85,905.12.

   THE COURT ORDERS THAT:

   2.It is ordered pursuant to the provisions of s.90KA(c) of the Family Law Act 1975 (“the Act”) that the aforementioned Binding…