Moreton and Moreton (Costs)

FAMILY COURT OF AUSTRALIA

MORETON & MORETON (COSTS) [2009] FamCA 51

FAMILY LAW – COSTS – Application for Settlement of Property – Offers to Settle – Conduct of Proceedings

Family Law Act 1975 (Cth)

Penfold v Penfold [1980] FLC 90-800
Robinson v Higginbottom [1991] FLC 92-209
In the Marriage of Steel [1992] 15 FamLR 5
Pennisi v Pennisi [1997] FLC 92-774
Browne v Green [2002] FLC 93-115
Nemeth v Nemeth [1987] FLC 91-944
Black v Kelner [1992] FLC 92-287
Weir v Weir [1993] FLC 92-338
Castro v Hillery [2003] QdR651
V v G [1982] FLC 91-207

APPLICANT: Mr Moreton

RESPONDENT: Ms Moreton

FILE NUMBER: BRC 5963 of 2007

DATE DELIVERED: 5 February 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

WRITTEN SUBMISSIONS RECEIVED: Applicant Husband:   09/01/2009
Respondent Wife:     30/01/2009
Applicant in reply:     04/02/2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Barry & Nilsson Lawyers

Brisbane

SOLICITOR FOR THE RESPONDENT: Anne Murray & Co Solicitors
Emerald

Orders

1. The wife pay the husband’s costs of and incidental to the proceedings as and from 14 May, 2008 and including the costs of and incidental to the instant application for costs.

2. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter is one proper for the attendance of Senior Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Moreton and Moreton (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5963  of 2007

MR MORETON

Applicant

And

MS MORETON

Respondent

REASONS FOR JUDGMENT

COSTS

1. On 19 December 2008 I delivered Reasons for Judgment in a contested application pursuant to s 79 of the Family Law Act, the trial of which took place on 15 and 16 December 2008.

2. The husband seeks orders that the wife pay his costs of and incidental to those proceedings. As a specific issue, the application seeks to include costs incurred by the husband in responding to a specified report obtained by the wife and filed on 11 December 2008.  An order certifying for senior counsel is also sought.

3. Written submissions in support of costs and in response thereto were ordered on 19 December 2008.  Order 13 of those Orders provides that I will deal with the matter of costs in Chambers unless further oral submissions are required by the parties.  Neither party has requested the opportunity to make further oral submissions and, accordingly, the application for costs is to be determined in accordance with the written submissions filed on behalf of each of the parties.

4. Leave was granted to the wife to file an affidavit by her solicitor sworn 19 December 2008.  It was ordered that the husband file a responsive affidavit on 9 January 2009.  That has been done.

5. The Family Law Act 1975 (Cth) as amended provides, of course, that in proceedings in this Court, each party shall bear their own costs. (s 117 (1))

6. In Penfold v Penfold (1980) FLC 90-800 the High Court held (Stephen,…