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Melton & Hurley (No 2)

Melton & Hurley (No 2)

Case [2017] FamCA 759 25 September 2017

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FAMILY COURT OF AUSTRALIA

MELTON & HURLEY (NO 2)

[2017] FamCA 759

FAMILY LAW – COSTS – Where the applicant father made an application for costs against the respondent mother – Where the mother opposes the application for costs – Where the mother in response seeks her costs of the father’s application for costs to be paid by the father – Where the father submits the conduct of the mother warrants an order for costs – Where the father failed to produce any evidence that legal costs were incurred in the amount claimed or at all – Where the Court was not persuaded to make an order in this case – Where the applications for costs are dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Cachia v Hanes [1994] 179 CLR 404
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123

Hawkins & Roe [2012] FamCAFC 77

I and I (No 2) (1995) FLC 92-625 at 81,277
Kohan & Kohan (1993) FLC 92-340
Lenova & Lenova (Costs) [2011] FamCAFC 141
Oscar & Traynor [2008] FamCAFC 158
Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311
Prantage & Prantage [2013] FLC 93-544
Stephens & Stephens [2010] FamCAFC 172; (2010) 44 Fam LR 117
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Melton

RESPONDENT:

Ms Hurley

INDEPENDENT CHILDREN’S LAWYER:

Arlene Gomes

FILE NUMBER:

BRC

503

2013

DATE DELIVERED:

25 September 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

In chambers

REPRESENTATION

FOR THE APPLICANT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

Rice Naughton McCarthy

Order

(1)The applications for costs are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Melton & Hurley (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 503 of 2013

Mr Melton

Applicant

And

Ms Hurley

Respondent

REASONS FOR JUDGMENT

This is an application for costs arising out of a contested parenting trial heard by me over five days in April 2017. Judgment was delivered on 25 May 2017.
Mr Melton filed an Application in a Case on 21 June 2017 in which he seeks an order that Ms Hurley pay his costs of and incidental to the proceedings and that his costs be paid on an indemnity basis or alternatively on a standard basis.
On 27 June 2017 I made the following order in chambers:
1)In the event that the parties are unable to agree in writing within 21 days of today what…

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 Melton & Hurley (No 2)

Details

AGLC: Melton & Hurley (No 2) [2017] FamCA 759
Case: [2017] FamCA 759
Decision Date: 25 September 2017

CaseChat Overview and Summary

In *Melton & Hurley (No 2)*, the applicant father sought an order for costs against the respondent mother, who in turn sought her own costs of the father's application. The father contended that the mother's conduct warranted a costs order in his favour.

The central legal issue before Carew J was whether the conduct of the mother justified an order for her to pay the father's costs, and conversely, whether the father's application for costs was itself a matter for which he should bear the mother's costs.

Carew J dismissed the applications for costs. The court was not persuaded to make an order in favour of the father, noting that he had failed to produce any evidence that legal costs were incurred in the amount claimed or at all. Consequently, both the father's application for costs against the mother and the mother's application for costs against the father were dismissed.

Orders