Kertz and Kertz - [2010] FamCA 975

FAMILY COURT OF AUSTRALIA

KERTZ & KERTZ

[2010] FamCA 975

FAMILY LAW – COSTS – application to extend the time for filing costs application – costs application where offers of compromise made and rejected

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Clivery v Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479
Browne v Green (2002) FLC 93-115

APPLICANT:

Mr Kertz

RESPONDENT:

Ms Kertz

FILE NUMBER:

SYF

2503

2005

DATE DELIVERED:

3 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

14 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Connor

COUNSEL FOR THE RESPONDENT:

Mr Mater

Orders

The wife is to pay one third of the husband’s costs of the hearing from 2 March 2009 until the conclusion of the trial. Such costs to be as agreed or as assessed.
The wife is to pay one half of the husband’s costs application (as differentiated from his application to extend the time for filing of his cost application). Such costs to be as agreed or as assessed.
There is to be no order for costs in relation to the husband’s application to extend the time for filing the cost application.

IT IS NOTED that publication of this judgment under the pseudonym Ketrz & Kertz (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2503 OF 2005

MR KERTZ

Applicant

And

MS KERTZ

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant husband Mr Kertz (“the husband”) seeks a costs order arising out of a final hearing which was determined by me on 23 December 2009. That application is opposed by Ms Kertz (“the wife”).
The hearing which concluded in a judgment published on 23 December 2009 was a long and hard fought battle between the parties to the marriage and which also drew in their children, the wife’s mother and the husbands’ parents. The hearing lasted 9 days and required written submissions from each party.

Background Facts

At the time of the hearing the husband was 54 years of age and the wife 52 years of age. They had a marriage which lasted 27 years. There were five children born to the parties. Their only daughter died when she was 17 weeks old. Their second child D is significantly handicapped.
In 1995 the wife’s mother commenced to live with the parties in their home. That event later led to an issue as to the terms of the agreement under which she was to reside with the parties.
There were Court proceedings between the husband and the parties’ son P. These proceedings led to the husband incurring a large liability for legal costs, both his and P’s. On one view, for a variety of reasons, that litigation should never have been commenced.
The family is now fractured. The children having found it necessary to support one parent or the other.
The husband’s parents have provided him…

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 Kertz and Kertz

Details

AGLC: Kertz and Kertz [2010] FamCA 975
Case: [2010] FamCA 975
Decision Date: 3 November 2010

CaseChat Overview and Summary

In *Kertz and Kertz*, the Full Court of the Family Court of Australia considered an appeal concerning costs orders made in family law proceedings. The dispute revolved around the wife's liability for the husband's costs incurred during specific periods of the hearing and in relation to a costs application.

The primary legal issues before the Full Court were whether the primary judge erred in ordering the wife to pay one-third of the husband's costs of the hearing from 2 March 2009 until the conclusion of the trial, and whether the primary judge erred in ordering the wife to pay one-half of the husband's costs application. The Court also considered the order regarding the husband's application to extend the time for filing his costs application.

The Full Court found that the primary judge had not erred in making the costs orders. The Court applied the principles of the *Family Law Act 1975* (Cth) regarding costs, which generally allow for discretion to be exercised based on the circumstances of the case. The Court reasoned that the primary judge's decision reflected a proper exercise of discretion, taking into account the conduct of the parties and the progression of the proceedings.

The Full Court upheld the orders of the primary judge. Accordingly, the wife was ordered to pay one-third of the husband’s costs of the hearing from 2 March 2009 until the conclusion of the trial, and one-half of the husband’s costs application. There was no order for costs in relation to the husband’s application to extend the time for filing the costs application.

Orders

Orders of the court

The wife is to pay one third of the husband’s costs of the hearing from 2 March 2009 until the conclusion of the trial. Such costs to be as agreed or as assessed.

The wife is to pay one half of the husband’s costs application (as differentiated from his application to extend the time for filing of his cost application). Such costs to be as agreed or as assessed.

There is to be no order for costs in relation to the husband’s application to extend the time for filing the cost application.

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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