Oswald and Oswald - [2015] FCCA 2189

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSWALD & OSWALD

[2015] FCCA 2189

Catchwords:
FAMILY LAW – Application for costs following Father discontinuing contravention application – considerations of expense of court resources in such circumstances and the impact also on the other party having to respond to large amount of material.

Legislation:

Family Law Act 1975, ss.117(1), (2) & (2A)

Federal Circuit Court Rules 2001, r.21.02(2)

Cases cited:
AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
Penfold v Penfold (1980) 144 CLR 311
Stephens v Stephens (2011) 44 Fam LR 117; [2010] FamCAFC 172

Applicant:

MR OSWALD

Respondent:

MS OSWALD

File Number:

CAC 745 of 2013

Judgment of:

Judge Neville

Hearing date:

22 May 2015

Date of Last Submission:

22 May 2015 (written submissions)

Delivered at:

Canberra

Oral reasons delivered:

24 July 2015

Written reasons delivered:

14 August 2015

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Phelps Reid

Counsel for the Respondent:

Solicitors for the Respondent:

Elringtons

ORDERS

The Father is to pay the Mother’s costs in the fixed sum of $4500.00 within 60 days of the date of this order, or in a time frame otherwise agreed in writing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 745 of 2013

MR OSWALD

Applicant

And

MS OSWALD

Respondent

REASONS FOR JUDGMENT

Introduction

On 24^th July very detailed oral reasons were delivered in relation to the Mother’s application for costs arising from an earlier Contravention Application brought, but discontinued, by the Father. In more recent times, the Father’s solicitor has indicated that he might be considering an appeal in relation to the Court’s award of costs in the Mother’s favour; he requested written reasons to assist in those deliberations. That indication/inquiry from the Father’s solicitor was not copied to the Mother’s solicitor.
Upon the receipt of the Father’s request for written reasons, my Chambers confirmed that the reasons sought would be provided. Notwithstanding that confirmation, the Father’s solicitor has since made further inquiries of Chambers about access to a transcript and similar inquiries have been made to the Registry Manager. All inquiries have been courteous but respectfully needless. Having received notification from Chambers that written reasons will be provided that should have been the end of the matter. No transcript is available other than that of the delivery of the oral reasons which is [now] the basis for the current written reasons. The waste of Court resources in answering ongoing otiose inquiries should not have been necessary. Much else could be said – but will not at this juncture.
What follows are the requested – and promised – reasons slightly revised from those that were delivered on 24^th July.
The current Application is one for costs as sought by…

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 Oswald and Oswald

Details

AGLC: Oswald and Oswald [2015] FCCA 2189
Case: [2015] FCCA 2189
Decision Date: 14 August 2015

CaseChat Overview and Summary

In the matter of *Oswald and Oswald*, heard before Judge Neville, the dispute concerned costs following family law proceedings. The specific details of the underlying substantive dispute are not provided, but the judgment focuses solely on the allocation of legal costs between the parties.

The central legal issue before the Court was the determination of the quantum and payment terms for the Mother's costs. Judge Neville was required to assess the appropriate amount to be awarded to the Mother for her legal expenses and to specify when these costs should be paid by the Father.

Judge Neville ordered that the Father pay the Mother's costs in the fixed sum of $4500.00. These costs are to be paid within 60 days of the date of the order, unless the parties agree in writing to an alternative payment timeframe.

Orders

Orders of the court

The Father is to pay the Mother’s costs in the fixed sum of $4500.00 within 60 days of the date of this order, or in a time frame otherwise agreed in writing.

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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