FAMILY COURT OF AUSTRALIA
| MILLHOUSE & MULLENS (NO 2) | [2015] FamCA 1015 |
| FAMILY LAW – COSTS – Where the wife was wholly unsuccessful in an Application in a Case that she brought before the Court – Where the husband seeks an order that the wife pay his costs of that application – Whether costs should be ordered on an indemnity basis or a party and party basis. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Naczek v Dowler [2011] FamCAFC 179 |
| APPLICANT: | Ms Millhouse |
| RESPONDENT: | Mr Mullens |
| FILE NUMBER: | BRC | 10196 | of | 2013 |
| DATE DELIVERED: | 19 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| LAST SUBMISSIONS RECEIVED: | 23 October 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hackett |
| SOLICITOR FOR THE APPLICANT: | Hirst & Co Family Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | Barry.Nilsson. Lawyers |
Orders
That the wife pay the husband’s costs of and incidental to her Application in a Case seeking to restrain the husband from instructing his solicitors that was dismissed, such costs to be as agreed or as assessed on a party and party basis in accordance with the Family Law Rules 2004.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Millhouse & Mullens (No 2) 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: BRC 10196 of 2013
| Ms Millhouse |
Applicant
And
| Mr Mullens |
Respondent
REASONS FOR JUDGMENT
On 24 August 2015 I heard an Application in a Case brought by the wife in this matter for an Order that the husband be restrained from continuing to instruct the solicitors who are acting for him in the proceedings. I determined to dismiss the application, delivering judgment on 11 September 2015.
The husband seeks an order that the wife pay his costs of that application.
Of course, pursuant to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) each party to proceedings under this Act bears his or her own costs unless the Court is of the opinion “that there are circumstances that justify it in” making an Order as to costs “as the Court considers just”.
Matters the Court must consider in determining “what order (if any) should be made” are set out in s 117(2A) of the Act. The breadth of the discretionary exercise is clear considering one of the matters set out in s 117(2A) is “such other matters as the Court considers relevant.”
I acknowledged in my judgment when dismissing the application that the inherent supervisory jurisdiction of the Court to restrain a solicitor from acting in a particular case is “to be regarded as exceptional and exercised with caution” with “due weight [to] be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause”. See Naczek v Dowler [2011] FamCAFC 179 at [60] and…
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- AGLC
- Millhouse and Mullens (No 2) [2015] FamCA 1015
- Case
- [2015] FamCA 1015
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the wife's application to restrain the husband from instructing his solicitors should be granted.
Forrest J dismissed the wife's application. The Court ordered that the wife pay the husband's costs of and incidental to her application. These costs are to be agreed between the parties or assessed on a party and party basis in accordance with the Family Law Rules 2004.
Orders
Orders of the court
1.
That the wife pay the husband’s costs of and incidental to her Application in a Case seeking to restrain the husband from instructing his solicitors that was dismissed, such costs to be as agreed or as assessed on a party and party basis in accordance with the Family Law Rules 2004.
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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