Krach & Krach (No 2) - [2009] FamCA 886

FAMILY COURT OF AUSTRALIA

KRACH & KRACH (NO. 2)

[2009] FamCA 886

FAMILY LAW – COSTS – costs order against unsuccessful litigant in child-related proceeding

Family Law Act 1975 (Cth) ss 117AB, 117(2A)
Family Law Rules 2004 (Cth) r 19.18(1)

Brown & Brown (1998) FLC 92-822
D & D [2005] FamCA 356
In the Marriage of Kohn (1977) 30 FLR 175
Krach & Krach [2009] FamCA 507
LAC and TRF and LKL [2005] Fam CA 158
Re Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771

APPLICANT:

Mr Krach

RESPONDENT:

Ms Krach

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

2897

2007

DATE DELIVERED:

16 September 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

BENNETT J

HEARING DATE:

Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B KIERNAN

SOLICITOR FOR THE APPLICANT:

HALL & WILCOX

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr J WILLIAMS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

ROBERT HALLIDAY & ASSOCIATES

Orders

IT IS ORDERED:

That on or before 16 November 2009, the mother pay $45,000 (forty-five thousand dollars), being part of the father’s costs of and incidental to the parenting proceedings such payment to be made as follows;-
a)the first $41,500 (forty one thousand, five hundred dollars) to the father’s solicitors on the record for the benefit of the father;
b)the sum of $3,500 (three thousand , five hundred dollars) to the independent children’s lawyer on behalf of the father.
That the mother and the father each pay to the independent children’s lawyer the sum of $5,000 (five thousand dollars), being part of the costs of the independent children’s lawyer for the completed parenting proceedings, as follows:-
a)as to the mother, on or before 16 November 2009;
b)as to the father, the sum of $3,500 (three thousand, five hundred dollars) , such payment to be made by the mother pursuant to paragraph 1(b) of this order, AND THE COURT NOTES that the father has already paid the sum of $1,500 (one thousand, five hundred dollars).
Having regard to the operation of paragraphs 1(b) and 2(a) of this Order, the amount owing by the mother to the independent children’s lawyer, by way of costs, is $8,500 (eight thousand, five hundred dollars) and that is the amount for which the independent children’s lawyer is hereby entitled to enforce.
That the mother be responsible for the witness costs of Ms P which are already fixed in the sum of $650.
That the costs applications are otherwise dismissed.

IT IS DIRECTED:

That Registrar Mestrovic send a sealed copy of this Order to Ms P at her professional address.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2897 of 2007

MR KRACH

Applicant

And

MS KRACH

Respondent

REASONS FOR JUDGMENT

Introduction

Over 22 days in February to…

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 Krach & Krach (No 2)

Details

AGLC: Krach & Krach (No 2) [2009] FamCA 886
Case: [2009] FamCA 886
Decision Date: 16 September 2009

CaseChat Overview and Summary

This matter concerned an application for costs following parenting proceedings before Bennett J. The parties involved were the mother and the father, and the application also addressed the costs of the independent children's lawyer and a witness, Ms P.

The court was required to determine the quantum and allocation of costs payable by the parties, specifically in relation to the father's costs, the independent children's lawyer's costs, and the witness costs of Ms P. The court also considered whether any further costs applications should be granted.

Bennett J ordered that the mother pay $45,000 towards the father's costs, with $41,500 to be paid to the father's solicitors and $3,500 to the independent children's lawyer on behalf of the father. The mother and father were each ordered to pay $5,000 towards the independent children's lawyer's costs, with the father's contribution of $3,500 to be satisfied by the payment made under the first order. The mother was also made responsible for Ms P's witness costs of $650. All other costs applications were dismissed.

Orders

Orders of the court

IT IS ORDERED:

That on or before 16 November 2009, the mother pay $45,000 (forty-five thousand dollars), being part of the father’s costs of and incidental to the parenting proceedings such payment to be made as follows;-

a) the first $41,500 (forty one thousand, five hundred dollars) to the father’s solicitors on the record for the benefit of the father;

b) the sum of $3,500 (three thousand , five hundred dollars) to the independent children’s lawyer on behalf of the father.

That the mother and the father each pay to the independent children’s lawyer the sum of $5,000 (five thousand dollars), being part of the costs of the independent children’s lawyer for the completed parenting proceedings, as follows:-

a) as to the mother, on or before 16 November 2009;

b) as to the father, the sum of $3,500 (three thousand, five hundred dollars) , such payment to be made by the mother pursuant to paragraph 1(b) of this order, AND THE COURT NOTES that the father has already paid the sum of $1,500 (one thousand, five hundred dollars).

Having regard to the operation of paragraphs 1(b) and 2(a) of this Order, the amount owing by the mother to the independent children’s lawyer, by way of costs, is $8,500 (eight thousand, five hundred dollars) and that is the amount for which the independent children’s lawyer is hereby entitled to enforce.

That the mother be responsible for the witness costs of Ms P which are already fixed in the sum of $650.

That the costs applications are otherwise dismissed.

IT IS DIRECTED:

That Registrar Mestrovic send a sealed copy of this Order to Ms P at her professional address.

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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