Lennon & Lennon (Costs) - [2012] FamCA 116

FAMILY COURT OF AUSTRALIA

LENNON & LENNON (COSTS)

[2012] FamCA 116

FAMILY LAW – COSTS – where the wife seeks an order that the husband pay her costs of and incidental to the trial – where the husband resists the wife’s application – where the husband does not apply for costs – consideration of the factors contained in s 117(2A) – where factors do not justify an order that the husband pay the wife’s costs of the trial – where the factors warrant an order that the husband pay the wife’s costs in respect of particular Applications in a Case filed by the wife, and in respect of a hearing after the judgment had been delivered

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Browne & Green (2002) FLC 93-115
Harris & Harris (1991) FLC 92-254
In the Marriage of Murray (1990) 14 Fam LR 311
In the Marriage of Steel (1992) 15 Fam LR 5
Kilch & Wood (2003) FLC 93-169
Lenova & Lenova [2011] FamCAFC 141
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Penfold v Penfold (1979 – 1980) 144 CLR 311
Pennisi & Pennisi (1997) FLC 92-774

APPLICANT:

Ms Lennon

RESPONDENT:

Mr Lennon

FILE NUMBER:

BRC

8876

2008

DATE DELIVERED:

14 March 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

4 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hogan

SOLICITOR FOR THE APPLICANT:

Belinda Eyers and Associates

COUNSEL FOR THE RESPONDENT:

Mr Hamwood

SOLICITOR FOR THE RESPONDENT:

Stephen Tester & Associates

Orders

IT IS ORDERED THAT

The husband pay the wife’s costs of and incidental to:
(a) The Application in a Case filed by the wife on 8 June 2011; and
(b) The hearing before Justice Murphy on 28 September 2011.
The husband pay the wife’s costs thrown away on the hearing listed before Justice Murphy to commence on 14 July 2010.
The amount of costs payable in each case shall be as agreed by the parties in writing or, failing agreement within 28 days of the date of this Order, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lennon & Lennon (Costs) 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 BRISBANE

FILE NUMBER: BRC8876/2008

Ms Lennon

Applicant

And

Mr Lennon

Respondent

REASONS FOR JUDGMENT (COSTS)

On 19 July 2011 I made Orders and delivered Reasons consequent upon a trial involving competing applications of the husband and wife for parenting orders and property settlement. On that date, and for Reasons given (at [239] – [243]), I afforded the parties the opportunity to formulate, together, the precise terms of orders giving effect to my findings.
The parties were unable to provide agreed minutes of order, and on 28 September 2011 the matter again came before me. On that date, counsel…

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 Lennon & Lennon (Costs)

Details

AGLC: Lennon & Lennon (Costs) [2012] FamCA 116
Case: [2012] FamCA 116
Decision Date: 14 March 2012

CaseChat Overview and Summary

In *Lennon & Lennon (Costs)*, Murphy J of the Family Court of Australia was required to determine the appropriate costs orders following proceedings between a husband and wife. The specific dispute concerned the wife's application filed on 8 June 2011 and a hearing that took place before Justice Murphy on 28 September 2011, as well as costs thrown away from a hearing previously listed for 14 July 2010.

The central legal issue before the court was the allocation of costs between the parties. Specifically, the court had to decide whether the husband should be ordered to pay the wife's costs in relation to the aforementioned application and hearing, and also to compensate the wife for costs rendered futile by the earlier adjourned hearing.

Murphy J ordered that the husband pay the wife's costs of and incidental to the application filed on 8 June 2011 and the hearing on 28 September 2011. Furthermore, the husband was ordered to pay the wife's costs that were thrown away on the hearing listed for 14 July 2010. The quantum of these costs was to be determined by agreement between the parties within 28 days of the order, or by assessment thereafter if no agreement was reached.

Orders

Orders of the court

IT IS ORDERED THAT

The husband pay the wife’s costs of and incidental to:

(a) The Application in a Case filed by the wife on 8 June 2011; and

(b) The hearing before Justice Murphy on 28 September 2011.

The husband pay the wife’s costs thrown away on the hearing listed before Justice Murphy to commence on 14 July 2010.

The amount of costs payable in each case shall be as agreed by the parties in writing or, failing agreement within 28 days of the date of this Order, as assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.