Fryatt & Thompson (No. 2)

[2005] FMCAfam 545

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FRYATT & THOMPSON (No. 2) [2005] FMCAfam 545

FAMILY LAW – Costs – circumstances justifying order – whether costs should be allowed on an indemnity basis – where no submissions have been made by the respondent – Family Law Act 1975 (Cth) s.117 does not raise any presumption whether or not in a particular case costs should or should not be ordered – where Respondent rejected two offers of settlement – costs ordered on party and party basis.

Family Law Act 1975 (Cth), ss.117, 117C

Federal Magistrates Court Rules 2001 Schedule 1

G and G [2004] FMCA 9; (2004) FLC 93-194
Munday & Bowman (1997) 22 Fam LR 321; FLC 92-784
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248
Kilich and Wood [2003] FamCA 629; (2003) FLC 93-169
Gaudry & Gaudry (No. 2) [2004] FMCAfam 649; (2004) FLC 93-203
Robinson & Higginbotham (1991) FLC 92-209
Gaudry & Gaudry (No.1) [2004] FMCAfam 452; (2004) FLC 202

Penfold v Penfold (1980) 144 CLR 311; 5 Fam LR 579; FLC 90-800

Applicant: Delma Fryatt

Respondent: Morgan Leigh Thompson

File No: NCM 3037 of 2002

Delivered on: 12 October 2005

Delivered at: Sydney

Hearing dates: 29 April, 17 & 18 June 2005

Date of Last Submission: 8 July 2005

Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Bateman

Solicitors for the Applicant: Stacks – The Law Firm

Solicitors for the Respondent: Merrick Spicer & Associates

ORDERS

1. That the Respondent father pay the Applicant’s costs of the Maintenance proceedings between the parties fixed in the sum of $13,650.00.

2. That the Respondent pay the Applicant’s costs of this application fixed in the sum of $1,135.00.

3. I allow six (6) months to pay the above costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

NCM 3037 of 2002

Delma Fryatt

Applicant

And

Morgan Leigh Thompson

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother for an order for costs against the father arising out of proceedings for the maintenance of their adult son. The son (to whom I will refer by the pseudonym J) was attending university, and on 21^st February 2005 I made orders to this effect:

   a)that the Respondent Father should pay maintenance at the rate of $150.00 per week with effect from 4^th May 2002;

   b)that the maintenance should be paid into a bank or credit union account in the name of the adult son; and

   c)that the Respondent’s liability to pay maintenance other than arrears is to cease on 30^th November 2005.

Background

1. The Respondent defended the proceedings, both on the question of liability to pay maintenance and on the amount, if any, that should be paid. The proceedings were protracted, and took three hearing days to complete. Eventually, I reserved judgment.

2. I handed down judgment on 21^st February 2005.

Issues

1. The Applicant submits that:

   a)The Court should order the Respondent to pay the Applicant’s costs;

   b)Costs should be…