Fortnum and Fortnum (Costs) - [2011] FamCAFC 183

FAMILY COURT OF AUSTRALIA

FORTNUM & FORTNUM (COSTS)

[2011] FamCAFC 183

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

Fortnum & Fortnum (No.3) 2008 FamCAFC 133
Harris and Harris (1991) FLC 92-254
Pennisi and Pennisi (1997) FLC 92-774
TAF v MEF 2009 HCASL 93

APPELLANT:

Mr Fortnum

RESPONDENT:

Ms Fortnum

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYF

631

2002

APPEAL NUMBERS:

EA
EA

18
66

of
of

2007
2006

DATE DELIVERED:

6 September 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Faulks DCJ, Coleman and Cronin JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 May 2006

LOWER COURT MNC:

[2006] FamCA 524

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPELLANT:

Morgan Ardino & Co

SOLICITOR FOR THE RESPONDENT:

DGB Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ward

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

That the husband’s appeal against the orders made by Cohen J on 22 January, 2007 be dismissed.
That the husband pay the costs of the wife and the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Fortnum & Fortnum (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EA 18 of 2007 & EA66 of 2006
File Number: SYF 631 of 2002

Mr Fortnum

Appellant

And

Ms Fortnum

Respondent

Independent Children’s Lawyer

REASONS FOR COSTS JUDGMENT

The appellant husband appealed against parenting orders made by Cohen J on 16 June, 2006. He subsequently appealed against orders made by his Honour on 22 January, 2007 that he pay the costs of the wife and the independent children’s lawyer on an indemnity basis arising out of the parenting hearing.
On 4 September, 2008, we dismissed the husband’s appeal against the parenting orders (Fortnum & Fortnum (No.3) [2008] FamCAFC 133).
On 29 April, 2009, the husband’s application for special leave to appeal to the High Court of Australia against the parenting orders was dismissed (TAF v MEF [2009] HCASL 93).

The issues

The outstanding issues dealt with in these reasons relate to the indemnity costs order and the costs of the appeal against the parenting orders.

The background

The substantive issue between the parties was the parenting dispute. The husband represented himself throughout the trial process and the appeal hearing. Cohen J ordered the husband have no contact with the child of the relationship of the parties. In his judgment, his Honour found that the child was in danger of being physically and psychologically harmed if he had contact with the husband. In our reasons for judgment on the appeal, we held that the decision was a discretionary one and there was no material error which vitiated the exercise of that discretion. In addition, allegations of bias and bullying together with complaints about a denial of natural justice were not established.
In the reasons for…

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 Fortnum and Fortnum (Costs)

Details

AGLC: Fortnum and Fortnum (Costs) [2011] FamCAFC 183
Case: [2011] FamCAFC 183
Decision Date: 6 September 2011

CaseChat Overview and Summary

In the matter of Fortnum and Fortnum, the Court was called upon to address the allocation of costs between the husband and the wife following a contentious family law dispute. The wife had sought and obtained orders from Cohen J in relation to the care and control of their children, and the husband subsequently appealed these orders. The wife, in turn, applied for costs against the husband, and the husband opposed this application. The Independent Children's Lawyer also became involved in the proceedings.

The central legal issues the court needed to address included the assessment of the husband's appeal, the grounds upon which the wife's application for costs was based, and the appropriateness of the costs awarded to the wife and the Independent Children's Lawyer. The court had to determine whether the husband's appeal was frivolous or vexatious and, if so, whether this warranted an order for costs against him. Additionally, the court had to consider the merits of the wife's application for costs, including whether the husband's conduct in the proceedings was unreasonable or unjustified.

In delivering the decision, the court found that the husband's appeal was without merit and was, in fact, frivolous and vexatious. The court held that the husband had acted unreasonably and without justification in pursuing the appeal. As a result, the court dismissed the husband's appeal and ordered him to pay the costs of the wife and the Independent Children's Lawyer. The court's reasoning was grounded in the principle that parties should not be permitted to use the court process to pursue unfounded or vexatious claims, particularly in the context of family law disputes where the welfare of children is at stake. The court emphasised the importance of protecting the process from abuse and ensuring that costs are awarded fairly to the party that has been unjustly put to expense.

Orders

Orders of the court

That the husband’s appeal against the orders made by Cohen J on 22 January, 2007 be dismissed.

That the husband pay the costs of the wife and the Independent Children’s Lawyer.

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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