On & On (No. 2) - [2008] FamCA 94

[2008] FamCA 94

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE NO. MLF 7114 of 2001

IN THE MATTER OF:

MR ON (Husband)

and

MRS ON (Wife)

(No. 2)

SUPPLEMENTARY JUDGMENT
TO THAT OF 12 FEBRUARY 2008
DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing: 12, 18 February 2008
Date of Judgment: 22 February 2008

Appearances:

Mr Sweeney of counsel, instructed by Kennedy Wisewoulds, Solicitors, on behalf of the Applicant (wife)

The Respondent (husband) in person

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

Following a long and complex trial I delivered my reserved judgment in the substantive proceedings on 10 July 2007. (See ON & ON (No. 11) [2007] FamCA 677). The wife then made application for costs, as did the husband. For reasons explained in my further judgment in the proceedings delivered on 18 December 2007 (unreported) I prescribed a timetable for the filing of additional documents and written submissions by each of the parties. In doing so, I made it clear that given the husband’s disobedience of earlier orders made by me warranting my comment that he had “undisguisedly failed to abide the orders I made as far back as 14 August 2007” (par 18) that I would proceed on an undefended basis in the absence of any response from him.
The orders I made that day provided (inter alia) for the husband to file and serve his written submissions on or before 23 January 2008. Given that no documents were provided to me by court staff as having been filed by the husband and given his failure to comply with my previous orders on this issue I considered the matter and delivered my reasons for judgment on 12 February 2008 (see ON & ON [2008] FamCA 70). In summary, I ordered that the husband do pay the wife’s costs of and incidental to the substantive proceedings to be assessed on a lawyer and client basis and that his application for costs be dismissed.
After I had delivered my judgment, it came to light that the husband had in fact filed his written submissions on 24 January 2008 together with a lengthy affidavit and the wife had filed a reply to those submissions on 8 February 2008. Investigation as to why those documents had not been delivered to my chambers promptly revealed a sequence of poorly executed distribution of document procedures within the court. The breakdown in procedure was most regrettable and is now the subject of inquiry.
I have read the husband’s written submissions which, in substance, are addressed in quite strident criticism of my substantive judgment of 10 July 2007 with his re-visiting issues that were debated in court and were the subject of various findings in my judgment. Overall, the written submissions do not address the costs issue I am to decide arising from my findings and which, despite…

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 On & On (No. 2)

Details

AGLC: On & On (No. 2) [2008] FamCA 94
Case: [2008] FamCA 94
Decision Date: 22 February 2008

CaseChat Overview and Summary

This supplementary judgment from the Family Court of Australia concerns the costs applications made by both the wife (Applicant) and the husband (Respondent) following substantive proceedings. The court had previously delivered a judgment on 10 July 2007, followed by further judgments on 18 December 2007 and 12 February 2008, which had ordered the husband to pay the wife's costs on a lawyer and client basis and dismissed his own costs application. This judgment addresses the husband's subsequent submissions, which were filed late due to a breakdown in court document distribution procedures.

The primary legal issue before the court was to determine the applications for costs, specifically whether to vary or interfere with the previous orders made on 12 February 2008. This required the court to consider the husband's written submissions and affidavit, filed on 24 January 2008, which largely reiterated criticisms of the substantive judgment and raised issues already determined. The court also had to consider the wife's reply submissions, which argued that the husband's submissions failed to meet the criteria for a costs order in his favour under section 117(2A) of the *Family Law Act 1975* (Cth).

Justice Guest reasoned that the husband's submissions were largely irrelevant to the costs issue, focusing instead on re-agitating matters already decided in the substantive judgment and not subject to appeal. The court found that the husband's criticisms of the substantive judgment were matters for an appellate court, not for this court to reconsider. Furthermore, the husband's arguments regarding prior offers were found to be unpersuasive, particularly as one offer had been withdrawn and the wife's ability to consider it was hampered by a lack of full disclosure and independent valuations. The court noted that the husband had been wholly unsuccessful in the proceedings, while the wife had been wholly successful.

Consequently, the court found no basis to vary or interfere with the orders made on 12 February 2008. The husband was ordered to pay the wife's costs of and incidental to the substantive proceedings, to be assessed on a lawyer and client basis, and his application for costs was dismissed.

Orders