HESTER & HESTER (No.2) - [2018] FCCA 3140

FEDERAL CIRCUIT COURT OF AUSTRALIA

HESTER & HESTER (No.2)

[2018] FCCA 3140

Catchwords:
FAMILY LAW – Costs.

Legislation:

Family Law Act 1975 (Cth), ss.79, 117

Federal Circuit Court Rules 2001, r.21.02

Cases cited:

Hester & Hester [2018] FCCA 1137

Penfold & Penfold (1980) 144 CLR 311
Collins & Collins (1985) FLC 91-603
Latoudis v Casey (1990) 170 CLR 534
Wrensted & Eades [2016] FamCAFC 46
Cochrane & Cochrane [2012] FMCAfam 984
Livesey & Jenkins [1985] 1 All ER 106
In the marriage of Briese (1985) 10 FamLR 642
Oriolo & Oriolo (1985) 10 FamLR 665

Applicant:

MS HESTER

Respondent:

MR HESTER

File Number:

PAC 2671 of 2016

Judgment of:

Judge Obradovic

Hearing date:

In chambers

Date of Last Submission:

3 October 2018

Delivered at:

Parramatta

Delivered on:

2 November 2018

ORDERS

That upon order (7) made on 10 May 2018 in proceedings number

PAC2671/2016 coming into effect, the husband is to pay the wife the sum of $20,723.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2671 of 2016

MS HESTER

Applicant

And

MR HESTER

Respondent

REASONS FOR JUDGMENT

On 10 May 2018, following a final hearing in 2017 which took two days, the Court delivered its Reason for Judgment in respect of the Applicant Husband’s application pursuant to s79 of the Family Law Act 1975 (Cth). The Respondent wife joined in the husband’s application by also seeking relief pursuant to the Act, albeit she sought different orders to the husband.
Orders adjusting the parties’ property interests were duly made, following the making of certain findings as to the pool of assets, parties’ contributions and what was just and equitable in all of the circumstances. Ultimately, the Court found that there should be an overall adjustment in the wife’s favour of 57% and in the husband’s favour of 43%.[1] Ultimately, the Court calculated that the wife was to receive $864,350 and the husband was to receive $652,054.
[1] See Hester & Hester [2018] FCCA 1137 at [43]; See also [45] in respect of the superannuation splitting order and the consequent re-adjustment of the non-superannuation assets
On 5 June 2018, the Wife filed an Application in a Case seeking an order for costs in the amount of $19,304, calculated in accordance with Schedule 1 of the Federal Circuit Court Rules 2001. The application for costs is opposed.
The relevant facts which the wife relies upon are set out in her Affidavit filed on 5 June 2018. Those facts are not disputed. The husband filed his Affidavit on 6 August 2018. Those facts are not disputed. As such[2], the following is apparent:
[2] And including from the Court file in respect of Court events and orders made
a)Proceedings were commenced on 10 June 2016.
b)On 6 February 2017, the matter was set down for final hearing at 10am on 2 March 2017. On that…

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 HESTER & HESTER (No.2)

Details

AGLC: HESTER & HESTER (No.2) [2018] FCCA 3140
Case: [2018] FCCA 3140
Decision Date: 2 November 2018

CaseChat Overview and Summary

In *Hester & Hester (No.2)*, the Honourable Justice Obradovic of the Family Court of Australia considered an application for costs in proceedings numbered PAC2671/2016. The dispute concerned the financial consequences arising from the dissolution of the marriage between the husband and wife.

The central legal issue before the court was the appropriate allocation of costs between the parties, specifically whether the husband should be ordered to pay a portion of the wife's legal expenses. This determination required the court to assess the conduct of the parties throughout the proceedings and the overall justice of the case in relation to cost orders.

Justice Obradovic reasoned that an order for costs was warranted in favour of the wife. The court applied the general principle that costs follow the event, but also considered the specific circumstances of the case and the conduct of the parties in making its determination. The court ultimately found it just and equitable to make a costs order against the husband.

Upon order (7) made on 10 May 2018 coming into effect, the husband was ordered to pay the wife the sum of $20,723.

Orders

Orders of the court

That upon order (7) made on 10 May 2018 in proceedings number

PAC2671/2016 coming into effect, the husband is to pay the wife the sum of $20,723.

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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