Lenard and Rogers (No. 3)

[2012] FamCA 799

FAMILY COURT OF AUSTRALIA

LENARD & ROGERS (NO. 3) [2012] FamCA 799

FAMILY LAW – COSTS – Between parties – Where the father seeks costs for the mother’s application for a stay pending appeal which was wholly unsuccessful – Costs awarded to the father.

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

APPLICANT: Ms Lenard

RESPONDENT: Mr Rogers

FILE NUMBER: SYC 1585 of 2010

DATE DELIVERED: 18 September 2012 in chambers

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Battley

COUNSEL FOR THE RESPONDENT: Mr Siggins

SOLICITOR FOR THE RESPONDENT: Sweeney Tiggemann

Orders

IT IS ORDERED

1. That the wife pay the costs of the husband in relation to the application for stay pending appeal heard on 18 July 2012 in the sum of $2,624.46, such costs to be paid by the wife out of the distribution of capital pursuant to the orders for property settlement made in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lenard & Rogers (No. 3) 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 1585 of 2010

Ms Lenard

Applicant

And

Mr Rogers

Respondent

REASONS FOR JUDGMENT

1. In this matter proceedings relating to parenting and adjustment of property were heard and determined by orders which were made on 16 July 2012 at the conclusion of the defended hearing.

2. On 18 July 2012 the mother applied for a stay of the operation of the orders, pending appeal, and judgment in relation to the stay was delivered on 20 July 2012.  The stay was refused.

3. The father now applies for an order that the mother pay his costs in relation to the stay application which was unsuccessful.  The father has filed written submissions dated 1 August 2012 which contain an itemised estimate of costs.  The mother has filed written submissions in reply.

4. In her written submissions the wife submitted that the application in relation to costs of the stay should be heard after the Full Court had determined the appeal and I infer the subsequent hearing of the matter.

5. I decline to deal with the matter on that basis.  It is appropriate that the husband’s application should be dealt with and the wife, if she is so advised, will then have the opportunity to appeal against this decision.

6. The application falls to be determined pursuant to the provisions of section 117(2A) of the Family Law Act1975 (Cth).

7. The husband and the wife are both in employment and as a result of the orders which have been made for property settlement will each receive capital sums.  Whilst the wife may not be in a position, at the present time, to pay an award of costs she will be in a position to make a payment out of the capital distribution by way of property settlement.

8. Neither of the parties is in receipt of legal aid.

9. There is nothing in the conduct of the parties in relation to the application for a stay which warrants comment.  The application was brought on promptly and argued succinctly.

10. However, the wife was wholly unsuccessful in the application for a stay and in those circumstances I am of the view that she should pay the husband’s costs.

11. The itemisation of the husband’s costs attached to the written submissions filed on his behalf is not challenged by the wife in her written submissions and I therefore propose to make an order that the wife pay the husband’s costs in the sum of $2624.46, such monies to be paid from the distribution of capital to her by way of property settlement.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 September 2012.

Associate: 

Date:  18 September 2012