Holbert and Holbert - [2020] FamCA 567

FAMILY COURT OF AUSTRALIA

HOLBERT & HOLBERT

[2020] FamCA 567

FAMILY LAW – COSTS – Circumstances justifying order – Where the wife sought costs against the husband as a result of her successful Application in a Case – where the wife sought costs on an indemnity basis – Where the husband opposed the application for costs – Where it is appropriate that the husband be awarded costs on a party party basis in an amount agreed or as assessed – Where indemnity costs not ordered

Family Law Act 1975 (Cth) s 117(1), 117(2), 117(2A)

Baum & Lokare (No 2) [2019] FamCA 292

Colgate-Palmolive and Anor v Cussons Proprietary Limited (1993) 46 FCR 225; [1993] FCA 801

Danks & McCabe (2017) FLC 93-767; [2017] FamCAFC 41
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158

Wrenstead v Eades (2016) FLC 93-697; [2016] FamCAFC 46

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Yunghanns v Yunghaans (2000) FLC 93-029; [2000] FamCA 681

APPLICANT:

Ms Holbert

RESPONDENT:

Mr Holbert

FILE NUMBER:

MLC

2024

2018

DATE DELIVERED:

24 July 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

McEvoy J

HEARING DATE:

28 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dixon SC

SOLICITOR FOR THE APPLICANT:

Scanlan Carroll Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Mawson QC

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

Orders

The applicant wife’s costs of and incidental to the application filed 24 April 2019 be paid on a party party basis by the respondent husband in an amount to be agreed and, in default of agreement, to be assessed.
The applicant wife’s Application in a Case filed 24 April 2019 and Amended Application in a Case filed 17 May 2019 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holbert & Holbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2024 of 2018

Ms Holbert

Applicant

And

Mr Holbert

Respondent

REASONS FOR JUDGMENT

The applicant wife has sought the costs of her Application in a Case filed 24 April 2019 and her Amended Application in a Case filed 17 May 2019 to be paid by the husband on an indemnity basis. The husband opposes the making of any costs order, but says that if costs are ordered they should be ordered on a party party basis in accordance with Schedule 3 of the Family Law Rules

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 Holbert and Holbert

Details

AGLC: Holbert and Holbert [2020] FamCA 567
Case: [2020] FamCA 567
Decision Date: 24 July 2020

CaseChat Overview and Summary

In the matter of *Holbert and Holbert*, McEvoy J of the Family Court of Australia considered an application by the wife concerning costs and the dismissal of certain applications. The dispute revolved around the wife's applications filed on 24 April 2019 and 17 May 2019, and the husband's liability for the wife's costs in relation to these applications.

The primary legal issue before the court was whether the husband should be ordered to pay the wife's costs of and incidental to her application filed on 24 April 2019. A secondary issue was the disposition of the wife's applications filed on 24 April 2019 and 17 May 2019.

McEvoy J ordered that the wife's costs of and incidental to the application filed on 24 April 2019 were to be paid by the husband on a party-party basis, with the amount to be agreed or assessed in default of agreement. The court further ordered that the wife's Application in a Case filed on 24 April 2019 and her Amended Application in a Case filed on 17 May 2019 be otherwise dismissed.

Orders

Orders of the court

The applicant wife’s costs of and incidental to the application filed 24 April 2019 be paid on a party party basis by the respondent husband in an amount to be agreed and, in default of agreement, to be assessed.

The applicant wife’s Application in a Case filed 24 April 2019 and Amended Application in a Case filed 17 May 2019 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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