Leo and Leo

[2007] FamCA 1667

FAMILY COURT OF AUSTRALIA

LEO & LEO [2007] FamCA 1667

FAMILY LAW – OFFER OF SETTLEMENT – COSTS – Both parties acted reasonably in the offers and counteroffers of settlement. Section 117 Family Law Act 1975 (Cth) discussed. M & M [2006] FamCA 913, C & C [2005] FamCA 429 and Penfold & Penfold (1980) 144 CLR 311 cited. The award of costs in this context involves discretion and should not encourage litigation rather than acceptance of offers. AMS & AIF [1999] 199 CLR 160 cited. No order for costs.

Family Law Act 1975 (Cth)

M & M [2006] FamCA 913
C & C [2005] FamCA 429
Penfold & Penfold (1980) 144 CLR 311

APPLICANT: Ms Leo

RESPONDENT: Mr Leo

FILE NUMBER: PAC 2660 of 2007

DATE DELIVERED: 23 November 2007

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 23 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITOR FOR THE APPLICANT: Coleman & Greig

COUNSEL FOR THE RESPONDENT: Mr Wong

SOLICITOR FOR THE RESPONDENT: Matthews Folbigg

Orders

1. That orders be in accordance with the Consent Orders marked as Exhibit “X”.

2. That there be no order for costs.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2660 of 2007

MS LEO  

Applicant

And

MR LEO  

Respondent

REASONS FOR JUDGMENT

1. This is an application by the applicant wife (“the applicant”) for what perhaps is best described as a partial costs order in relation to the proceedings under Part VIII Family Law Act 1975 (Cth) (“the Act”), which concluded earlier today by the making of consent orders in accordance with a document which became Exhibit X. I incorporate the terms of Exhibit X in these reasons without reading those terms on to the record.

2. The primary basis of the application for costs is that the husband, who is the respondent to this application and was the respondent in the Part VIII proceedings (“the respondent”), rejected until a time when the costs of preparing for trial had already been incurred the acceptance of an offer which had been, to use the colloquial, on the table for some weeks prior to the date set for trial at the time shortly before the trial. The effect of this was that the orders of the Court made by consent were no less favourable to the applicant than the offer which had been available for some time.

3. It is thus submitted, in essence, on behalf of the applicant that the Court would, pursuant to s 117(2) of the Act, form the requisite opinion ‑ namely, that in the circumstances an order for costs was appropriate. Secondary reliance was placed upon the disparity in the financial positions of the parties, it being submitted that the respondent’s superior financial position would reinforce the strength of the applicant’s claim for a costs order.

4. The application raises…