Hunt and Atkins - [2015] FamCA 1152

FAMILY COURT OF AUSTRALIA

HUNT & ATKINS

[2015] FamCA 1152

FAMILY LAW – COSTS – Where the Court dismissed the wife’s application to vary a final spousal maintenance order pursuant to section 83 of the Act – Where the Court further dismissed the wife’s oral application for leave to amend the application so that the order was sought pursuant to section 74 of the Act – Where those orders have now been appealed to the Full Court – Orders made for the wife to pay the costs of the husband – Orders in respect to costs stayed pending determination of the appeal.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 1.04

APPLICANT:

Mr Hunt

RESPONDENT:

Ms Atkins

FILE NUMBER:

SYC

425

2012

DATE DELIVERED:

20 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

20 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Sexton Family Law

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

Paltos Milevski Family Lawyers

Orders

The wife is to pay the costs incurred by the husband in respect to the wife’s Application in a Case filed on 14 July 2015, the wife’s oral application made on 21 August 2015 together with the proceedings heard on 21 August 2015 and the costs arising from those proceedings on a party / party basis to be agreed or assessed.

Order 1 be stayed pending such time as the Appeal filed by the wife on 17 September 2015 in respect to the orders made on 21 August 2015 is heard and determined.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 425 of 2012

Mr Hunt

Applicant

And

Ms Atkins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This application concerns an application for costs arising from orders that I made on 21 August 2015 dismissing the wife’s Initiating Application filed 14 July 2015 to vary an order for spousal maintenance and the wife’s oral application for leave to amend the Initiating Application to an application for orders pursuant to section 74 of the Family Law Act 1975 (Cth) (“the Act”).
The wife’s Initiating Application filed 14 July 2015 sought orders pursuant to section 83 of the Act to vary Order 6 made by Aldridge J on 4 December 2014. That order related to spousal maintenance and relevantly provided that “upon completion of the sale of [the relevant property]… all existing orders in relation to that property, and for spousal maintenance, are discharged”.
It was acknowledged that the date of completion of the sale referred to in the order by Aldridge J was 17 July 2015. It was common ground that section 83(1) empowers the Court to vary an order concerning spousal maintenance:
If there is…

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 Hunt and Atkins

Details

AGLC: Hunt and Atkins [2015] FamCA 1152
Case: [2015] FamCA 1152
Decision Date: 20 November 2015

CaseChat Overview and Summary

In the matter of *Hunt and Atkins*, heard by McClelland J, the dispute concerned the wife's applications filed on 14 July 2015 and an oral application made on 21 August 2015, along with the proceedings conducted on that latter date. The husband sought costs associated with these applications and proceedings.

The primary legal issue before the court was the determination of costs. Specifically, the court was required to decide whether the wife should be ordered to pay the husband's costs incurred in relation to her applications and the subsequent proceedings, and if so, on what basis.

McClelland J ordered that the wife pay the costs incurred by the husband in respect of her application filed on 14 July 2015, her oral application on 21 August 2015, and the proceedings heard on that date, such costs to be on a party and party basis, either by agreement or assessment. However, this costs order was stayed pending the hearing and determination of the wife's appeal filed on 17 September 2015, which concerned the orders made on 21 August 2015.

Orders

Orders of the court

The wife is to pay the costs incurred by the husband in respect to the wife’s Application in a Case filed on 14 July 2015, the wife’s oral application made on 21 August 2015 together with the proceedings heard on 21 August 2015 and the costs arising from those proceedings on a party / party basis to be agreed or assessed.

Order 1 be stayed pending such time as the Appeal filed by the wife on 17 September 2015 in respect to the orders made on 21 August 2015 is heard and determined.

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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