Maker & Jets (No 3) - [2012] FMCAfam 1104

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAKER & JETS (No.3)

[2012] FMCAfam 1104

FAMILY LAW – Costs – application for costs following an 11 day trial – consideration of dicta from Full Court decision in Hawkins & Roe (2012) FamCAFC 77 – consideration of approach to the question of costs in parenting cases – whether a parenting dispute should have certain particular features before an order for costs can be made – whether a trial judge's discretion should be fettered by rules or guidelines not appearing in and unrelated to the provisions of the Family Law Act 1975 – distinction between a case which is "wholly unsuccessful" and a case which is without merit – where the proceedings were necessitated by the failure of the mother to comply with previous orders – where the mother was wholly unsuccessful – where the mother was motivated by factors other than the best interests of the child – whether apparent inability of a party to pay costs might constitute a bar to an order being made – where there are circumstances which justify an order for costs being made on a party/party basis notwithstanding the mother's difficult financial position – mother ordered to pay the father's costs of the substantive proceedings.

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules2001
Federal Magistrates Court Regulations
Family Law Rules

Braithwaite (2007) FamCA 468 C & C (No.2) (2007) FMCAfam 54 Carpenter and Lunn (2008) FamCAFC 128 Chappell (2008) FamCAFC 143 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 Cross & Beaumont (2008) FamCAFC 68 Edgar v Halle (No.2) (2010) FamCA 260 Hawkins & Roe (2012) FamCAFC 77 Hogan (1986) FLC 91-704 I & I (No.2) (1996) FLC 92-625 Kelly & Kelly (No.2) (1981) FLC 91-108 Kohan (1992) 16 Fam LR 245; (1993) FLC 92–340 Latoudis v Casey (1990) 170 CLR 534 Marinko (1983) FLC 91-307 Maker & Jets (2012) FamCAFC 103 Munday and Bowman (1997) 22 Fam LR 321; FLC 92–784 Penfold (1980) FLC 90-800 Re David Costs (1998) FLC 92-809
Applicant:	MR MAKER

Respondent:

MS JETS

File Number:

MLC 493 of 2009

Judgment of:

Walters FM

Hearing dates:

5 September 2012

Date of Last Submission:

5 September 2012

Delivered at:

Melbourne

Delivered on:

12 October 2012

REPRESENTATION

Counsel for the Applicant:

Mr Howe

Solicitors for the Applicant:

Meier Denison Guyner

Counsel for the Respondent:

Mr O’Connor

Solicitors for the Respondent:

Horsfield & Associates

ORDERS

IT IS ORDERED THAT:

The mother must pay the father's costs of and incidental to the proceedings ─ such proceedings to be deemed to have commenced with the filing of the mother’s application initiating proceedings on 4 August 2010 ("the Costs").
In addition, the mother must pay 80% of the father's costs of and incidental to the father's application for costs made subsequent to the completion of the trial ("the Additional Costs").
In the event of the parties failing to agree upon the quantum of the Costs and the Additional Costs by 4…

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 Maker & Jets (No 3)

Details

AGLC: Maker & Jets (No 3) [2012] FMCAfam 1104
Case: [2012] FMCAfam 1104
Decision Date: 12 October 2012

CaseChat Overview and Summary

Family Law Act 1975, the father may apply to the court to determine the quantum of the Costs and the Additional Costs.

The case before the Family Court involved a dispute between the mother and father of a child regarding child support and property settlement issues. The mother initiated proceedings on 4 August 2010, and the father subsequently filed an application for costs. The court was tasked with determining the costs to be borne by the mother and the father in relation to the proceedings. The primary legal issue was the apportionment of costs between the parties, particularly in light of the mother's application for costs made subsequent to the completion of the trial.

The court considered the relevant statutory provisions and case law in determining the appropriate allocation of costs. It was held that the mother should bear the majority of the costs, reflecting the outcome of the proceedings and the nature of the mother's application for costs. The court ordered that the mother must pay the father's costs of and incidental to the proceedings, as well as 80% of the father's costs of and incidental to the father's application for costs made subsequent to the completion of the trial. The court also provided a mechanism for the parties to agree upon the quantum of the costs, or for the father to apply to the court for a determination if the parties were unable to reach an agreement.

Orders

Orders of the court

IT IS ORDERED THAT:

The mother must pay the father's costs of and incidental to the proceedings ─ such proceedings to be deemed to have commenced with the filing of the mother’s application initiating proceedings on 4 August 2010 ("the Costs").

In addition, the mother must pay 80% of the father's costs of and incidental to the father's application for costs made subsequent to the completion of the trial ("the Additional Costs").

In the event of the parties failing to agree upon the quantum of the Costs and the Additional Costs by 4 p.m. on 23 November 2012, and pursuant to Part 21 of the

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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