Fancham & Ayrus (No 2) - [2023] FedCFamC2F 461

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fancham & Ayrus (No 2) [2023] FedCFamC2F 461

File number(s): DGC 3572 of 2019

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 21 April 2023

Catchwords: FAMILY LAW – property – costs application – heard in chambers – whether a costs order should be made – where husband had made offer to settle – where wife’s offer to settle was unrealistic – failure to disclose – part costs awarded to husband.

Legislation:
Family Law Act 1975 (Cth), s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 12.13

Cases cited:
Alston & Alston [2021] FedCFamC1A 96

Fancham & Ayrus [2022] FedCFamC2F 1431

Griffiths & Griffiths (No 2) [2022] FedCFamC1F 379

Pennisi & Pennisi (1997) FLC-92-774

Division: Division 2 Family Law

Number of paragraphs: 47

Date of last submission/s: 20 February 2023

Date of hearing: Written submissions only

Place: Melbourne

Solicitor for the Applicant: Lardners Solicitors

Solicitor for the Respondent: Guthrie & Associates
ORDERS

DGC 3572 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR AYRUS

Applicant

AND:
MS FANCHAM

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

21 April 2023

THE COURT ORDERS THAT:
1.From the Wife’s part or share of the proceeds of sale of the real property situate at and known as B Street, Suburb C in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume … Folio …, at settlement, the Wife pay to the Husband on account of costs:
(a)The sum of $2,987 on account of the order of 31 August 2020;
(b)The sum of $15,101.75 on account of costs from 1 September 2020.

2.All applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fancham & Ayrus (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESY
INTRODUCTION

The question I must decide in this matter is whether there should be an order for costs pursuant to section 117 of the Family Law Act 1975 (Cth) (‘the Act’) arising from the conclusion of the proceedings.
Having initially been listed as a two day matter, this matter was heard over five days, being 28 October 2020, 17 May 2021, 20 May 2021, 11…

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 Fancham & Ayrus (No 2)

Details

AGLC: Fancham & Ayrus (No 2) [2023] FedCFamC2F 461
Case: [2023] FedCFamC2F 461
Decision Date

CaseChat Overview and Summary

In Fancham & Ayrus (No 2), Judge O'Shannessy considered a husband's application for costs pursuant to section 117 of the Family Law Act 1975 (Cth). The application arose from the conclusion of property proceedings, which had involved multiple hearings, delays, and ultimately a sale of the disputed property for a higher price than anticipated. The court had to decide whether the wife should be ordered to pay part or all of the husband's costs, and if so, how much.

Judge O'Shannessy found that while the wife's conduct had not been unreasonable, she had failed to fully comply with disclosure orders and made an offer to settle that was unrealistic. The husband had made two offers that were close to the court's final orders, and while his first offer had an unreasonable timeframe, the court found that the husband's offers were not unreasonable overall. The judge also noted that the husband had not fully disclosed information about his mother's estate.

Taking all these factors into account, the judge decided that the husband was entitled to part of his costs, calculated as half of the costs claimed less the costs already awarded in a previous order. From the wife's share of the proceeds of sale of the property, she was ordered to pay the husband $2,987 in respect of the previous costs order, and $15,101.75 in respect of costs from 1 September 2020. All other applications were dismissed.

Orders