Morad & Tulun (No. 2)

[2020] FamCA 896

FAMILY COURT OF AUSTRALIA

Morad & Tulun (No. 2) [2020] FamCA 896  

File number(s):

SYC 8420 of 2019

Judgment of:

GILL J

Date of judgment:

23 October 2020

Catchwords:

FAMILY LAW – Costs – where the Husband seeks a costs order against the Wife – where the Wife was wholly unsuccessful - indemnity costs not appropriate – where an order is made for the Wife to pay the Husband’s costs on a party/party basis.

Legislation:

Family Law Act 1975 (Cth) ss 79, 117

Cases cited:

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248

Munday v Bowman (1997) FLC 92-784

Penfold v Penfold (1980) 144 CLR 311

Quickley &Pelissier [2016] FamCAFC 124

Renald & Renald (Costs) [2018] FamCAFC 4

Number of paragraphs:

15

Date of hearing:

23 October 2020

Place:

Canberra

Counsel for the Respondent:

Mr G Stapleton

Solicitor for the Respondent:

Robertson Saxton Osborne

Solicitor for the Applicant:

Hall Partners

ORDERS

SYC 8420 of 2019

BETWEEN:

MS MORAD

Applicant

AND:

MR TULUN

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	23 OCTOBER 2020

THE COURT ORDERS THAT:

1.I order that pursuant to s 117(2) of the Family Law Act 1975 the Wife pay the Husband's costs of and incidental to these proceedings in an amount as agreed by the parties or determined by the Court on a party party basis.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym <pseudonym> has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT

GILL J

1. In this matter, the Respondent Husband seeks costs of the proceedings in which the Wife unsuccessfully sought to establish that a Binding Financial Agreement entered into by the parties was not binding, as a precursor to seeking leave to apply for relief under s 79 of the Family Law Act 1975 (Cth) (the Act) out of time.  

2. Costs are governed by s 117(1) of the Act which provides a starting point that each party is to bear his or her own costs. A departure from that starting point requires the Court to conclude there are circumstances that justify it doing so, as set out by s 117(2) of the Act.

3. In Penfold v Penfold (1980) 144 CLR 311, the High Court observed that s 117(1) is not paramount to s 117(2) and that a finding of justifying…