Firmer and Britton - [2012] FamCA 576

FAMILY COURT OF AUSTRALIA

FIRMER & BRITTON

[2012] FamCA 576

FAMILY LAW -COSTS - Offer of settlement - Where the Wife made an initial offer of settlement that was substantially less than her entitlement under the final Orders - Where the Husband had not made any offers to the Wife greater than her final entitlement

Family Law Act 1975 (Cth)

Browne & Green (2002) FLC 93-115
Munday & Bowman (1997) FLC 92-784
Murray (1990) FLC 92-173
Penfold & Penfold (1980) 144 CLR 311
Pennisi & Pennisi (1997) FLC 92-774
Robinson & Higginbotham (1991) FLC 92-209
Steel (1992) FLC 92-306

APPLICANT:

Mr Firmer

RESPONDENT:

Ms Britton

FILE NUMBER:

TVC

588

2007

DATE DELIVERED:

23 July 2012

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Kent J

HEARING DATE:

23 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Honchin

SOLICITOR FOR THE APPLICANT:

Stevenson & McNamara

COUNSEL FOR THE RESPONDENT:

Ms McDiarmid

SOLICITOR FOR THE RESPONDENT:

The Brad Robins Legal Centre

Orders

The Respondent Husband pay to the Applicant Wife her costs of and incidental to the proceedings on a party and party basis, such costs to be agreed, or failing agreement, to be assessed or taxed.
The parties shall each bear their own costs respectively of and incidental to the current application.

Notation

These Orders exclude those costs which have already been dealt with by way of previous Orders of the Court, including any Orders in favour of either party and including the Orders in respect of the contravention proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Firmer & Britton 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 TOWNSVILLE

FILE NUMBER: TVC 588 of 2007

Mr Firmer

Applicant

And

Ms Britton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The substantive proceedings between the parties were financial. The Applicant Wife sought Orders for property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). His Honour Justice Monteith heard and determined those proceedings over a five day period commencing 19 September 2011, and delivered reasons and made Orders on 12 October 2011.
Relevantly, as set out in paragraph 65 of the reasons for judgment, his Honour determined a net pool of assets and resources, including financial resources, of $4,068,140.31. As per paragraph 65, which sets out what his Honour has termed the “balance sheet”, the vast majority of those assets were held by the Husband.
The balance sheet referred to included what has been termed a “notional add-back” of a property in the sum of $2,100,000.00, being a property at H, which the Husband had, at some point, transferred into a superannuation fund in the name of the Husband’s parents. The Husband acknowledged at the outset of the trial so far as the Court was concerned, that there was no longer any issue that that was a property to be added back, and sometime shortly before…

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 Firmer and Britton

Details

AGLC: FIRMER & BRITTON [2012] FamCA 576
Case: [2012] FamCA 576
Decision Date: 23 July 2012

CaseChat Overview and Summary

In *Firmer and Britton*, Kent J of the Federal Circuit Court of Australia considered a dispute between an applicant wife and a respondent husband concerning costs orders.

The primary legal issue before the court was the allocation of costs following proceedings, specifically whether the respondent husband should be ordered to pay the applicant wife's costs on a party and party basis, and how the costs of the current application should be treated.

Kent J ordered that the respondent husband pay the applicant wife's costs of and incidental to the proceedings on a party and party basis, with such costs to be agreed or otherwise assessed. However, the parties were to bear their own costs in relation to the current application. These orders specifically excluded costs already dealt with by previous court orders, including those related to contravention proceedings.

Orders

Orders of the court

The Respondent Husband pay to the Applicant Wife her costs of and incidental to the proceedings on a party and party basis, such costs to be agreed, or failing agreement, to be assessed or taxed.

The parties shall each bear their own costs respectively of and incidental to the current application.

Notation

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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