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LAMBERT and HAMEL

LAMBERT and HAMEL

Case [2023] FCWA 71 4 April 2023

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: LAMBERT and HAMEL [2023] FCWA 71
CORAM: COHEN J
HEARD: IN CHAMBERS
DELIVERED : 4 APRIL 2023
FILE NO/S: 1280 of 2019
BETWEEN: MR LAMBERT
Applicant
AND
MS HAMEL
First Respondent
AND
MS RADLEY
Second Respondent

Catchwords:

COSTS – Child related proceedings – where mother seeks costs against paternal grandmother in substantive proceedings – where paternal grandmother discontinued her application – where court orders paternal grandmother cover mother's additional costs incurred for the Single Expert Witness – where court finds balance of mother's application "objectively without merit" – application otherwise dismissed

COSTS – Costs proceedings – where paternal grandmother seeks indemnity costs against mother in costs proceedings – where mother was put on notice of intention to seek a costs order in respect of the costs application – where court finds balance of the mother's application "objectively without merit" – fixed costs ordered against the mother on a party-party basis

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Lawyer A
First Respondent	:	Lawyer B
Second Respondent	:	Lawyer C

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Law Firm B
Second Respondent	:	Law Firm C

Case(s) referred to in decision(s):

[2015] FCWA 65
Anison & Anison (2019) FLC 93-908
Bant v Clayton (Costs) (2016) 56 Fam LR 31
Bele & Vaughan (Costs) [2012] FamCAFC 198
Braithwaite & Braithwaite [2007] FamCA 468
Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225
Collins and Collins (1985) FLC 91-603
Greedy and Greedy (1982) FLC 91-250
I and I (No 2) (1995) FLC 92-625
Idoport Pty Ltd v National Australia Bank Ltd & Ors [2007] NSWSC 23
Jones v Dunkel (1959) 101 CLR 298
Kelly and Kelly (No 2) (1981) FLC 91-108
Kohan and Kohan (1993) FLC 92-340
Luadaka v Luadaka (1998) FLC 92-830
Madin v Palis (2016) 55 Fam LR 59
Munday v Bowman (1997) FLC 92-784
Parke & The Estate of the Late A Parke (2016) FLC 93-748
Prantage & Prantage (2013) FLC 93-544
Redmond & Redmond and Anor (Costs) [2014] FamCAFC 55
Stephens v Stephens and Anor (2010) 44 Fam LR 117
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lambert and Hamel has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The respondent mother, [Ms Hamel] ("the mother") seeks an order for costs against the paternal…

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.

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Details

AGLC: LAMBERT and HAMEL [2023] FCWA 71
Case: [2023] FCWA 71
Decision Date: 4 APRIL 2023

CaseChat Overview and Summary

In the Family Court of Australia, Lambert and Hamel dealt with two distinct yet related issues involving a mother, father, and paternal grandmother. The mother sought costs against the paternal grandmother in the substantive proceedings, arguing that the grandmother's discontinued application had led to additional expenses for the Single Expert Witness. The grandmother, in turn, sought indemnity costs against the mother in the costs proceedings, asserting that the mother's application was objectively without merit.

The court was required to determine whether the paternal grandmother should cover the mother's additional costs for the Single Expert Witness, and whether the mother should be liable for the grandmother's costs in the costs proceedings. The central legal issues revolved around the principles of costs in family law proceedings, specifically the objective merit of applications and the entitlement to indemnity costs. The court needed to assess whether the mother's application for costs was objectively without merit and, if so, whether the grandmother was entitled to indemnity costs.

The court found that the balance of the mother's application for costs was objectively without merit, meaning the application did not have a reasonable prospect of success. Consequently, the court ordered the paternal grandmother to cover the mother's additional costs incurred for the Single Expert Witness. Additionally, the court found that the mother's application in the costs proceedings was also objectively without merit and ordered fixed costs against the mother on a party-party basis. This decision underscores the importance of the objective merit principle in family law costs applications, ensuring that parties are held accountable for applications that lack a reasonable prospect of success.

The court's final orders required the paternal grandmother to cover the mother's additional costs for the Single Expert Witness, and imposed fixed costs on the mother in relation to the grandmother's costs in the costs proceedings. This outcome highlights the court's emphasis on the principle of objective merit and the consequences of pursuing applications that lack a reasonable basis.

Orders