Legal Research
Cases
Franklyn & Franklyn (No 2)

Franklyn & Franklyn (No 2)

Case [2023] FedCFamC2F 1039 18 August 2023

Costs

Limitation Periods

Admissibility of Evidence

Specific Performance

Family Law

No judgment structure available for this case.

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Franklyn & Franklyn (No 2) [2023] FedCFamC2F 1039

File number(s): DUC 63 of 2018

Judgment of: JUDGE OBRADOVIC

Date of judgment: 18 August 2023

Catchwords: FAMILY LAW – COSTS – Applicant and Respondent seeking costs – Applicant seeking on indemnity basis and to scale – Respondent seeking on indemnity basis – Where respondent’s conduct at the final hearing delayed the proceedings –Scale costs awarded

Legislation:
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) sch 1

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13

Cases cited:
Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801

Collins & Collins [1985] FamCA 15

Fitzgerald v Fish and Anor [2005] FamCA 158

Franklyn & Franklyn [2021] FCCA 588

Franklyn & Franklyn [2023] FedCFamC2F 353

Greedy & Greedy [1982] FamCA 41

I & I (No.2) [1995] FamCA 80

Jensen & Jensen [1982] FamCA 57

Kohan & Kohan [1992] FamCA 116

Latoudis v Casey [1990] HCA 59

Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157

Munday v Bowman (1997) FLC 92-784 at 84,660

Penfold & Penfold [1980] HCA 4

Renald & Renald (Costs) [2018] FamCAFC 4

Stasiuk & Guild [2021] FamCAFC 62

Vu & Ton (No 5) [2023] FedCFamC1F 157

Division: Division 2 Family Law

Number of paragraphs: 83

Date of last submission/s: 9 June 2023

Date of hearing: In Chambers

Place: Parramatta

Solicitor for the Applicant: Matthews Folbigg Pty Ltd

Appearing for the Respondent: In person
ORDERS

DUC 63 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FRANKLYN

Applicant

AND:
MS FRANKLYN

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

18 AUGUST 2023

THE COURT ORDERS THAT:
1.Within 28 days the respondent pay the applicant’s costs of 25 and 26 July 2022, assessed in the amount of $11,785.
2.All extant applications for costs are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
INTRODUCTION

On 26 March 2021, the Court delivered judgment and made final orders in respect of both final parenting and property adjustment orders (“First Judgment”).[1] The respondent appealed. She was partially successful and the property proceedings were…

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 Franklyn & Franklyn (No 2)

Details

AGLC: Franklyn & Franklyn (No 2) [2023] FedCFamC2F 1039
Case: [2023] FedCFamC2F 1039
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Division 2, Mr Franklyn, the applicant, and Ms Franklyn, the respondent, were parties to a family law matter involving final parenting and property adjustment orders. The case had a complex history, including an appeal against the initial judgment and subsequent rehearing of the property proceedings. Following the rehearing, the Court was required to address the parties' competing applications for costs. The applicant sought costs totalling $16,110 at scale or $20,825 on an indemnity basis, while the respondent sought $87,677, primarily on an indemnity basis. The Court needed to determine whether there were justifying circumstances to make a costs order and, if so, what form that order should take.

The Court considered the well-established principles governing costs orders in family law proceedings, including the broad discretion of the Court under s.117 of the Family Law Act 1975 (Cth) and the need for a finding of justifying circumstances. It noted that while any one of the factors in s.117(2A) may be the sole foundation for a costs order, all relevant matters must be balanced to determine if the overall circumstances justify such an order. The Court also highlighted that an order for indemnity costs is exceptional and requires clear justification. The Court evaluated the evidence and submissions from both parties regarding the specific dates and amounts claimed for costs. The applicant claimed costs for 18 June 2019, 23 May 2022, and 25 and 26 July 2022, while the respondent claimed costs for multiple dates between 31 July 2018 and 4 May 2020.

After careful consideration, the Court found that the applicant was entitled to costs for 25 and 26 July 2022, as the final hearing was delayed due to the respondent's lack of readiness and the respondent's conduct. The Court rejected the respondent's claims for costs on the other dates, as there were no orders reserving costs, and the respondent's evidence and submissions did not justify an order for costs. The Court dismissed the respondent's application for costs and ordered the respondent to pay the applicant's costs of 25 and 26 July 2022, assessed in the amount of $11,785.

All other extant applications for costs were dismissed. The Court noted that the form of the order was subject to entry in the Court’s records and could be subject to review or variation as per the relevant rules.

Orders