GARRETT & DICKINSON (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARRETT & DICKINSON (No.2) [2016] FCCA 2276

Catchwords:
FAMILY LAW – Costs – Application by Respondent that Applicant pay her costs following the Applicant’s Application for leave to proceed out of time pursuant to section 44(6) of the Act being dismissed.

HELD – Application of the Respondent with respect to costs is dismissed – each party to bear their own costs.

Legislation:

Family Law Act 1975 (Cth), ss.44(6), 117(1), 117(2), 117(2A)
Federal Circuit Court Rules 2001 (Cth), r. 20.04

Cases cited:

Penfold v Penfold (1980) 144 CLR 311

Latoudis v Casey (1990) 170 CLR 32
Cassidy v Murray [1995] FamCA 91
Brown v Brown [1998] FamCA 115

Browne v Green [2002] FamCA 791
LAC v TRF & LKL [2005] FamCA 158
Prantage & Prantage (Costs) [2014] FamCA 850
Stoian & Fiening (Costs) [2014] FamCA 944
Thanh & Nor & Grimshaw [2015] FCCA 612

Applicant: MR GARRETT

Respondent: MS DICKINSON

File Number: MLC 9896 of 2015

Judgment of: Judge Bender

Hearing date: 5 May 2016

Date of Last Submission: 28 July 2016

Delivered at: Melbourne

Delivered on: 1 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Swann

Solicitors for the Applicant: Nevett Ford

Counsel for the Respondent: Mr Dudderidge

Solicitors for the Respondent: Nevile & Co

ORDERS

1. The Application by the Respondent that the Applicant pay her costs of these proceedings pursuant to section 117(2) of the Family Law Act 1975 (Cth) be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Garrett & Dickinson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9896 of 2015

MR GARRETT

Applicant

And

MS DICKINSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 5 July 2016 I handed down judgment in this matter whereby the Application of the Applicant pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“the Act”) for leave to issue an application out of time for alteration of the parties’ property interests was dismissed.

2. Upon delivery of the decision the Respondent’s solicitors were given leave to make oral application seeking orders that the Applicant pay the Respondent’s costs.

3. It was agreed the Respondent’s costs application would be determined by way of written submission. Orders were made setting a timetable for the receipt of submissions which are now to hand.

The Law

1. Section 117 of the Act is the primary provision of the Act in relation to costs. It provides as follows:

   (1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers…