Fortnum and Fortnum (Costs)

Case [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 of 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

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

  2. 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

  1. 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. 

  2. On 4 September, 2008, we dismissed the husband’s appeal against the parenting orders (Fortnum & Fortnum (No.3) [2008] FamCAFC 133).

  3. 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

  1. 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

  1. 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.

  2. In the reasons for…

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Fortnum and Fortnum (Costs) [2011] FamCAFC 183
Case
[2011] FamCAFC 183
Decision Date

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

1.

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

2.

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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