Filmer and Filmer (No 2) - [2013] FamCA 809

FAMILY COURT OF AUSTRALIA

FILMER & FILMER (NO 2)

[2013] FamCA 809

FAMILY LAW – COSTS – application for costs by the wife – whether the circumstances justify the making of a costs order – consideration of section 117(2A) factors – consideration of whether an order for indemnity costs is appropriate – orders that the husband pay the wife’s costs of the relevant application in a case on a party and party basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.08; 19.18; 19.19; 19.34; Schedule 3; Schedule 4

Penfold v Penfold [1980] FLC 90-800
Tuck & Tuck [1981] FLC 91-021
Rouse & Rouse [1981] FLC 91-073
Kelly & Kelly (No 2) [1981] FLC 91-108
Greedy & Greedy [1982] FLC 91-250
Oriolo & Oriolo [1985] FLC 91-653
Briese & Briese [1986] FLC 91-713
Nemeth & Nemeth [1987] FLC 91-844
Latoudis v Casey (1990) 170 CLR 534
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Kohan & Kohan [1993] FLC 92-340
I & I (No 2) [1993] FLC 92-625
Telfer and Telfer [1996] FLC 92-688
Munday & Bowman [1997] FLC 92-784
NMFM Property Ltd v Citibank Ltd (No 11) (2001) 187 ALR 654
Browne & Green [2002] FLC 93-115
Fitzgerald (as child representative for A (Legal Aid Commission (Tas))) v Fish (2005) 33 Fam LR 123
LGM & CAM (Contempt) (No 2) [2008] FLC 93-355
Donaghey & Donaghey (costs) (2012) 47 Fam LR 306
Prantage & Prantage [2013] FamCAFC 105

APPLICANT:

Ms Filmer

RESPONDENT:

Mr Filmer

FILE NUMBER:

ADC

3244

2010

DATE DELIVERED:

21 October 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

10 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kari

SOLICITOR FOR THE APPLICANT:

David Burrell & Co

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

Howe Martin & Associates

Orders

The husband pay the wife’s costs of the Application in a Case filed on 5 July 2012 on a party and party basis.
For the purpose of order (1) hereof the costs be determined by agreement between the parties within twenty-one [21] days or failing agreement, as assessed by a Registrar pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).
The question of the costs of both parties of the wife’s Application in a Case filed on 4 September 2012 is reserved to the date of the final hearing of these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Filmer & Filmer (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3244 of 2010

Ms Filmer

Applicant

And

Mr Filmer

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Ms Filmer (“the wife”) for a costs order against Mr Filmer (“the husband”) arising out of the proceedings initiated by an Application in a Case filed by the respondent husband on 5 July…

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.

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Details

Case: [2013] FamCA 809
Decision Date: 21 October 2013

CaseChat Overview and Summary

In *Filmer and Filmer (No 2)*, Dawe J of the Family Court of Australia considered an application concerning costs. The proceedings involved a husband and wife, though the specific nature of their underlying dispute is not detailed in the provided text.

The primary legal issue before the court was the determination of costs associated with two separate applications filed by the wife. Specifically, the court was required to decide whether the husband should pay the wife's costs for an application filed on 5 July 2012, and to address the costs of a subsequent application filed on 4 September 2012.

Dawe J ordered that the husband pay the wife's costs of the application filed on 5 July 2012 on a party and party basis. These costs were to be determined by agreement within twenty-one days, or failing that, to be assessed by a Registrar in accordance with Chapter 19 of the *Family Law Rules 2004* (Cth). The question of the costs for both parties concerning the wife's application filed on 4 September 2012 was reserved to the date of the final hearing of the proceedings.

Orders

Orders of the court

The husband pay the wife’s costs of the Application in a Case filed on 5 July 2012 on a party and party basis.

For the purpose of order (1) hereof the costs be determined by agreement between the parties within twenty-one [21] days or failing agreement, as assessed by a Registrar pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).

The question of the costs of both parties of the wife’s Application in a Case filed on 4 September 2012 is reserved to the date of the final hearing of these proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.