FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mason & Mason (No 3) [2023] FedCFamC1F 297
File number: SYC 6981 of 2021 Judgment of: BRASCH J Date of judgment: 21 April 2023 Catchwords: FAMILY LAW – COSTS – Costs arising from Contempt Application – Where three charges prosecuted by wife – Where prima facie case not established on two of the three charges – Where one charge proceeded to further hearing – Where that charge not made out as a flagrant challenge to the authority of the court - Where wife’s application dismissed – Where husband sought costs on party/party basis or scale in the alternate – Where wife resisted the making of any costs order – Where wife unsuccessful – Where asset pool is at least $17 million – Costs Order made and to be met from the wife’s entitlement in the ensuing s 79 of the Family Law Act 1975 (Cth) proceedings set down for September 2023 Legislation: Family Law Act 1975 (Cth) ss 4(1), 79, 112AD, 117(1), 117(2), 117(2A)(a)-(g), 117(4), 117(4A), 117(5), 117(6)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17(1)(a)
Cases cited: Bondelmonte v Bondelmonte (2016) 55 Fam LR 65; [2016] FamCAFC 48
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158
In the Marriage of Schwarz (1985) FLC 91-618
Mason & Mason (No 2) [2023] FedCFamC1F 72
Mason & Mason [2023] FedCFamC1F 18
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Prantage & Prantage (Costs) [2014] FamCA 850
Rankin and Rankin (No 3) [2019] FamCAFC 133
Sfakianakis& Sfakianakis (2019) 59 Fam LR 419; [2019] FamCAFC 54
Division: Division 1 First Instance Number of paragraphs: 53 Date of last submissions: 6 April 2023 Date of hearing: 20 January and 14 February 2023 Place: Sydney Counsel for the Applicant: Mr Jones SC Solicitor for the Applicant: Barkus Doolan Winning Solicitor for the Respondent: Lander & Rogers ORDERS
SYC 6981 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MASON
Applicant
AND: MR MASON
Respondent
order made by:
BRASCH J
DATE OF ORDER:
21 APRIL 2023
THE COURT ORDERS THAT:
1.The wife pay the husband’s costs of the Amended Application - Contempt filed 25 November 2022, in the sum of $53,099.14.
2.The wife’s payment of those costs is to be paid from her entitlement when the parties’ s 79 proceedings are determined.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence,…
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CaseChat Overview and Summary
The court concluded that certain circumstances justified making an order for costs, including the material adversity to the financial position of the wife, the parties' impending trial over the $17 million pool, and the fact that the wife chose to file a Contempt Application and failed on all three charges. The court found that the husband had not made sufficient submissions to assist the court in determining why a party/party basis for costs should be ordered, and the wife had not challenged any line items. Therefore, the court fixed the husband's costs at $53,099.14, as set out in the husband's submissions, by reference to the scale. The court also ordered that the sum be paid from the wife's entitlement when the s 79 proceedings are determined, taking into account the wife's contention that she is currently cash poor.
The court's decision highlights the importance of providing sufficient particulars of the costs claimed and challenging the costs claimed to enable the court to assess the costs. The court also emphasised that material adversity to the financial position of a party cannot be a bar to a costs order. The court's order for costs is a significant aspect of the case, given the parties' substantial pool of assets and the impending trial over the distribution of those assets.
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