MOVILA & MACKEE

FAMILY COURT OF AUSTRALIA

MOVILA & MACKEE [2020] FamCA 613

FAMILY LAW – COSTS – Interim – where the Respondent pursued an Application regarding Australia being an inappropriate forum which was ultimately dismissed by consent – where the Respondent was therefore wholly unsuccessful in pursuing that claim – where the conduct of the Respondent gives rise to a costs order under s117, but does not justify an order for costs on an indemnity basis

Family Law Act 1975 s117
Family Law Rules 2004

Kohan & Kohan (1993) FLC92-340
D & D (Costs)(No 2) (2010) FLC 93-435
Sfakianakis & Sfakianakis [2019] FamCAFC 54
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397

APPLICANT: Ms Movila

RESPONDENT: Mr Mackee

FILE NUMBER: BRC 12925 of 2016

DATE DELIVERED: 28 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 1 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T Kirk QC

SOLICITOR FOR THE APPLICANT: HopgoodGanim Lawyers

COUNSEL FOR THE RESPONDENT: Mr P Looney QC

SOLICITOR FOR THE RESPONDENT: McInnes Wlson Lawyers

Orders

1. That the husband shall pay a contribution to the costs of the wife in respect of the husband’s Response filed 8 March 2019, as agreed or assessed on the following basis:

   (a)costs on a party and party basis under the Family Law Rules 2004 between 8 March 2019 and 4 November 2019 relating to the forum issue; and

   (b)       costs of Senior Counsel to prepare for and appear on 8 November 2019

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Movila & Mackee 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 12925 of 2016

Ms Movila

Applicant

And

Mr Mackee

Respondent

REASONS FOR JUDGMENT

1. On 8 November 2019 the Court dismissed the Response of Mr Mackee (“the husband”) filed 8 March 2019 which sought the following orders:

   “1. That the proceedings … brought by the wife pursuant to section 79 of the Family Law Act 1975 (Cth) be dismissed on the basis that the Family Court of Australia is a clearly inappropriate forum.

   2. That in the alternative to the relief sought at paragraph 1 above, that the proceedings be permanently stayed on the basis that the Family Court of Australia is a clearly inappropriate forum.”

2. The Court further ordered that:

   “19. That noting the cross-applications for costs orders (be they reserved or an order for costs from the other party), such applications be adjourned for further hearing at…