Olsen & Rich (No 3)

Case [2022] FedCFamC1F 751

Federal Circuit and Family Court of Australia

(DIVISION 1)

Olsen & Rich (No 3) [2022] FedCFamC1F 751

File number(s): SYC 5822 of 2018
Judgment of: SCHONELL J
Date of judgment: 30 September 2022
Catchwords: FAMILY LAW – COSTS – Where the husband sought a costs order following termination of an order for arbitration – Where the wife previously consented to arbitration but later changed her mind – Where the husband sought costs on an indemnity basis but failed to provide a costs agreement – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Husband’s application dismissed – Each party to bear their own costs.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 190

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13

Cases cited:

Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

Harris and Harris (1991) FLC 92-254; [1991] FamCA 124

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

Olsen & Rich (No 2) [2022] FedCFamC1F 647

Olsen & Rich [2022] FedCFamC1F 324

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4

Pennisi v Pennisi (1997) FLC 92-774; [1997] FamCA 39

Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: Division 1 First Instance
Number of paragraphs: 39
Date of last submissions: 24 June 2022
Place: Sydney
Solicitor for the Applicant: Newnhams Solicitors
Solicitor for the Respondent: Dorter Family Lawyers and Mediators

ORDERS

SYC 5822 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR RICH

Applicant
AND:

MS OLSEN

Respondent

order made by:

SCHONELL J

DATE OF ORDER:

30 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The applicant husband’s application for costs be dismissed.

2.Each party pay their own costs of the application.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 Olsen & Rich has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SCHONELL J:

  1. Pursuant to orders and directions…

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AGLC
Olsen & Rich (No 3) [2022] FedCFamC1F 751
Case
[2022] FedCFamC1F 751
Decision Date

CaseChat Overview and Summary

Olsen & Rich (No 3) involved a husband who sought a costs order after the termination of an order for arbitration in their ongoing family law dispute. The wife had initially consented to the arbitration but later changed her mind, leading to the termination of the arbitration order. The husband applied for costs on an indemnity basis but did not provide a costs agreement as required by the Family Law Act 1975 (Cth). The court was required to consider the factors outlined in section 117(2A) of the Act to determine whether the husband was entitled to costs and, if so, the amount.

The legal issues before the court involved the application of section 117(2A) of the Family Law Act, which mandates that a court consider specified factors when deciding whether to make an order for costs and, if so, the amount of the order. The court had to assess whether the husband’s application for costs met the criteria set out in the statute and whether the failure to provide a costs agreement impacted the outcome of the application. The wife argued that the husband's actions in not providing a costs agreement and the circumstances surrounding the arbitration order termination warranted the denial of his costs application.

The court dismissed the husband’s application for costs, determining that he had not demonstrated a justifiable basis for the indemnity costs sought. The failure to provide a costs agreement and the wife's changed position on the arbitration were significant factors in the court’s decision. The court found that the husband had not satisfied the requirements of section 117(2A) of the Act, and therefore, the application for costs was dismissed. Both parties were ordered to bear their own costs of the application.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The applicant husband’s application for costs be dismissed.

2. Each party pay their own costs of the application.

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

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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