Millhouse and Mullens (No 2) - [2015] FamCA 1015

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

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…

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 Millhouse and Mullens (No 2)

Details

AGLC: Millhouse and Mullens (No 2) [2015] FamCA 1015
Case: [2015] FamCA 1015
Decision Date: 19 November 2015

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an application by the wife seeking to restrain the husband from instructing his solicitors. The dispute arose in the context of family law proceedings.

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

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.