Forster and Forster (Costs) - [2013] FamCAFC 125

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (COSTS)

[2013] FamCAFC 125

FAMILY LAW – APPEAL – COSTS – where the wife makes oral applications for costs – where the husband opposes the applications – where the wife seeks costs in the total sum of $28,923.17 – where there are difficulties with the amount sought namely, it is calculated on the Supreme Court scale, there are costs sought in relation to work done on another appeal which is not entirely relevant or appropriate, there is an error in one of the counsel fees sought, and generally there are claims for costs that cannot be maintained in the circumstances of the proceedings – where the wife’s counsel seeks that the amount of costs be fixed by the court rather than sending the matter to taxation – where there are circumstances which justify a costs order being made – where the husband has been wholly unsuccessful in the proceedings – where the conduct of the husband in relation to the proceedings also justifies an order for costs – costs fixed in the amount of $13,000 to be paid by the husband within three months.

Family Law Act 1975 (Cth) – s 117

APPLICANT:

Ms Forster

RESPONDENT:

Mr Forster

FILE NUMBER:

ADC

3359

2007

APPEAL NUMBERS:	SOA	44 & 46	of	2010
SOA	60	of	2012

DATE DELIVERED:

23 August 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

6 June 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 November 2012

LOWER COURT MNC:

[2012] FamCA 1028

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATES:

16 March 2009

23 April 2010
6 December 2011

LOWER COURT MNC:

NA – consent orders
[2010] FMCAfam 395
[2011] FMCAfam 1310

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs West

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks & Co Lawyers

THE RESPONDENT:

In person

Orders

The husband pay the costs of the wife fixed in the amount of $13,000, such amount to be paid within three months of the date of this order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Numbers: SOA 44 & 46 of 2010; SOA 60 of 2012
File Number: ADC 3359 of 2007

MS FORSTER

Applicant

And

MR FORSTER

Respondent

REASONS FOR JUDGMENT

Introduction

On 31 January 2013 the wife made an oral application for costs in relation to the orders made that day setting aside previous orders made by Federal Magistrate Lindsay (as he then was), and dismissing various applications in an appeal and Notices of Appeal filed by the husband. On 20 March 2013 the wife made an oral application for the costs of and incidental to the husband’s application in a case filed on 14 March 2013 and an…

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 Forster and Forster (Costs)

Details

AGLC: Forster and Forster (Costs) [2013] FamCAFC 125
Case: [2013] FamCAFC 125
Decision Date

CaseChat Overview and Summary

Ms Forster sought costs from Mr Forster in relation to various proceedings, including appeals, that were before the Family Court of Australia. The wife sought costs in the amount of $28,923.17, but there were difficulties with the amount sought. The husband opposed the wife's applications for costs. The court was required to decide whether there were circumstances that justified an order for costs and, if so, the amount of costs to be awarded. The court found that there were circumstances justifying an order for costs and fixed the amount of costs to be paid by the husband at $13,000 to be paid within three months. The court took into account the husband's conduct in relation to the proceedings, which included his refusal to conclude the matter and insistence in pursuing an appeal. The court also noted that the wife's legal advisers had miscalculated the costs on the Supreme Court scale rather than on the Family Court scale. The court fixed the amount of costs to be paid by the husband at $13,000, allowing him three months to pay that amount.

The court held that the husband was wholly unsuccessful in the proceedings, and his conduct in relation to the proceedings justified an order for costs. The court took into account the factors set out in s 117(2A) of the Family Law Act 1975 (Cth), including the financial circumstances of the parties and the conduct of the parties in relation to the proceedings. The court found that the husband's conduct in relation to the proceedings was unreasonable and persisted, leading to unnecessary legal costs for the wife. The court also noted that the amount sought by the wife was excessive due to errors in the calculation of costs and the inclusion of costs for work that was not entirely relevant or appropriate. The court fixed the amount of costs to be paid by the husband at $13,000, allowing him three months to pay that amount.

Orders