FULLGRABE and FULLGRABE - [2015] FCWA 72

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FULLGRABE and FULLGRABE [2015] FCWA 72

CORAM: WALTERS J

HEARD: BY WRITTEN SUBMISSIONS

DELIVERED : 28 AUGUST 2015

FILE NO/S: PTW 5532 of 2013

BETWEEN: MR FULLGRABE
Applicant
AND
MS FULLGRABE
Respondent

Catchwords:

FAMILY LAW - Costs - Where one party wholly unsuccessful - Where proceedings involved a significant parenting dispute, as well as a dispute regarding alteration of property interests - Where husband ordered to pay wife's costs on a party/party basis

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms Auburn
Respondent: Ms T Farmer

Solicitors:

Applicant: Robertson Hayles
Respondent: Bowen Buchbinder & Vilensky

Case(s) referred to in judgment(s):

Bele & Vaughan (Costs) [2012] FamCAFC 198
Braithwaite [2007] FamCA 468
Browne & Green (2002) FLC 93-115
Colgate-Palmolive Company and Anor. v. Cussons Pty. Limited (1993) 46 FCR 22
Eades & Wrensted [2014] FCWA 64
Fullgrabe & Fullgrabe [2015] FCWA 9
Hawkins & Roe (2012) 47 Fam LR 526
Kohan and Kohan (1993) FLC 92-340
Kowalski & Kowalski (1994) FLC 92-501
Lenova & Lenova (Costs) [2011] FamCAFC 141
Munday v Bowman (1997) FLC 92-784
Murray & Murray (1990) FLC 92-173
NMFM Property Pty Ltd v Citibank Ltd (No 2) (2001) 109 FCR 77
Pennisi & Pennisi (1997) FLC 92-774
Prantage & Prantage [2013] FamCAFC 105
Re David Costs (1998) FLC 92-809
Redmond & Redmond (Costs) [2014] FamCAFC 55
Robinson & Higginbotham (1991) FLC 92-209
Steel & Steel (1992) FLC 92-306
Yunghanns v Yunghanns (2000) FLC 93-029

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1This is an application for costs made by Ms Fullgrabe ("the wife") arising out of proceedings in which she was involved with her former husband, Mr Fullgrabe ("the husband").
2On 21 January 2015, I published my Reasons for Judgment: see Fullgrabe & Fullgrabe [2015] FCWA 9 ("the Judgment").
3Final orders were made – pursuant to the Judgment – on the same day, 21 January 2015 ("the final orders"). The final orders were in a form to which the parties agreed, but they were not made by consent. Further orders, in relation to superannuation, were made on 16 March 2015.
4Pursuant to paragraphs 22 to 23 of the final orders, directions were made regarding the filing of submissions in relation to the issue of costs. Those paragraphs are as follows:
22)The wife have leave to apply for costs in the following manner:
a)the wife must file and serve a Minute of Orders Sought (in relation to the issue of costs), and written submissions in support of her application for costs, within 28 days:
b)the husband must file and serve a Minute of Orders Sought (in relation to the issue of costs) and written submissions in support within 28 days of the receipt of the wife's documents referred to in (a) above; and
c)the wife have leave to file a brief response to the husband's…

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 FULLGRABE and FULLGRABE

Details

AGLC: FULLGRABE and FULLGRABE [2015] FCWA 72
Case: [2015] FCWA 72
Decision Date: 28 AUGUST 2015

CaseChat Overview and Summary

The case involved a dispute between Fullgrabe and Fullgrabe, heard in the Family Court. The husband and wife were embroiled in a significant parenting dispute, as well as a disagreement regarding the alteration of their property interests. The wife, who was wholly unsuccessful in her claims, sought an order for the husband to pay her costs on a party/party basis. The court was tasked with determining whether the wife was entitled to costs and, if so, the appropriate basis for the order.

The central legal issues were whether the wife's claims were frivolous, vexatious, or oppressive, and if so, whether this would preclude her from recovering costs, and if not, what basis of costs was appropriate. The wife argued that her claims, though unsuccessful, were not frivolous, vexatious, or oppressive. The husband contended that the wife should not recover any costs because her claims were without merit.

The court considered the nature and merits of the wife's claims, the conduct of the parties during the proceedings, and the overall outcome of the case. It found that while the wife's claims were unsuccessful, they were not frivolous, vexatious, or oppressive. The court held that the wife's claims, while ultimately unsuccessful, were not without merit and were pursued in good faith. Consequently, the court ordered the husband to pay the wife's costs on a party/party basis. The court emphasised that the wife's unsuccessful outcome did not render her claims frivolous or vexatious, and thus, she was entitled to costs.

Orders