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
That the Respondent father pay the Applicant’s costs of the Maintenance proceedings between the parties fixed in the sum of $13,650.00.
That the Respondent pay the Applicant’s costs of this application fixed in the sum of $1,135.00.
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
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 21st 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 4th 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 30th November 2005.
Background
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.
I handed down judgment on 21st February 2005.
Issues
The Applicant submits that:
a)The Court should order the Respondent to pay the Applicant’s costs;
b)Costs should be…
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- AGLC
- Fryatt & Thompson (No. 2) [2005] FMCAfam 545
- Case
- [2005] FMCAfam 545
- Decision Date
CaseChat Overview and Summary
The court was required to decide on the appropriate amount of maintenance to be paid by the Respondent to the Applicant, considering the changes in his financial situation. Additionally, the court needed to determine whether the Respondent's financial circumstances had genuinely changed and, if so, to what extent this warranted a reduction in the maintenance payments. The court also had to consider the costs associated with the proceedings, including the maintenance proceedings and the costs of the current application.
In its reasoning, the court found that the Respondent's financial situation had changed but not to the extent that warranted a reduction in maintenance payments. The court considered the income and expenses of the Respondent and found that while there was a decrease in his income, it was not sufficient to justify a reduction in the maintenance payments. The court also addressed the issue of costs, determining that the Respondent should pay the Applicant's costs of the maintenance proceedings and the costs of the current application. The court allowed the Respondent six months to pay the specified costs.
Orders
Orders of the court
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.
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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