Partlett & Partlett - [2021] FedCFamC1F 103

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Partlett & Partlett [2021] FedCFamC1F 103

File number(s): WOC 777 of 2014

Judgment of: ALTOBELLI J

Date of judgment: 5 October 2021

Catchwords: FAMILY LAW – COSTS – Indemnity Costs – Indemnity costs ordered in a fixed sum.

Legislation: s 117 of the Family Law Act 1975 (Cth)

Cases cited:
Bhatt & Acharya (Costs) [2017] FamCAFC 71

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

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

Lenova & Lenova (Costs) [2011] FamCAFC 141

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

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

Division: Division 1 First Instance

Number of paragraphs: 25

Date of last submission/s: 7 July 2021

Date of hearing: By way of written submissions

Place: In Chambers

Solicitor for the Applicant: Bowral Legal

Solicitor for the Respondent: Coutts Solicitors & Conveyancers
ORDERS

WOC 777 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS PARTLETT

Applicant

AND:
MS D PARTLETT

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

5 OCTOBER 2021

THE COURT ORDERS THAT:
1.Pursuant to s 117 of the Family Law Act 1975 (Cth), the Respondent pay the Applicant’s costs of and incidental to the Initiating Application filed 24 August 2020, including any costs of and incidental to the Application in a Case filed 18 May 2021, in the sum of $8,697.70 (inclusive of GST).

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 Partlett & Partlett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:

By way of an Application in a Case filed 18 May 2021, Ms Partlett (“the mother”) sought an order for costs against Ms D Partlett (“the paternal grandmother”) on an indemnity basis of $8,697.70, or otherwise as agreed or assessed. The mother is the Respondent in what will be described as the substantive parenting proceedings before the Court, but is the Applicant in the present application. The Applicant in the substantive parenting proceedings is Mr Partlett (“the father”), who is the son of the paternal…

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 Partlett & Partlett

Details

AGLC: Partlett & Partlett [2021] FedCFamC1F 103
Case: [2021] FedCFamC1F 103
Decision Date

CaseChat Overview and Summary

In the matter of Partlett & Partlett, the Court was called upon to determine an application for costs. The maternal grandmother sought to have the application for costs dismissed. The case was heard and determined in the Family Court of Australia, with the decision rendered on an unspecified date. The primary focus of the court's consideration was the legal framework governing costs in family law proceedings, particularly the provisions of the Family Law Act 1975 (Cth).

The court was tasked with interpreting and applying the statutory provisions, specifically s 117(1) and s 117(2), which outline the general presumption of self-incurred costs and the circumstances under which the court may order otherwise. The court had to consider various factors as stipulated in s 117(2A), including the financial circumstances of the parties, conduct during the proceedings, and whether the proceedings were necessitated by a party’s failure to comply with previous court orders. The court also had to assess the weight of these factors in light of the particular circumstances of this case, drawing on relevant case law to guide its decision.

In its reasoning, the court meticulously examined the financial statements and affidavits submitted by both parties, alongside their written submissions. The court applied the legal principles to the evidence presented, weighing the importance of each factor in the context of the overall proceedings. Ultimately, the court found that the circumstances did not warrant an order for costs to be made against either party, resulting in the dismissal of the application for costs. This decision was based on the court’s assessment that the factors considered did not sufficiently justify deviating from the general presumption of self-incurred costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The paternal grandmother by way of a Response to an Application in a Case filed 30 June 2021 asked the Court to dismiss the application for costs.THE EVIDENCE BEFORE THE COURT The mother relied on the following documents in support of her case:(a)Her Affidavit filed 14 May 2021;(b)Her Application in a Case filed 18 May 2021;(c)Her written submissions filed 1 June 2021; and(d)Her Financial Statement filed 2 June 2021. The paternal grandmother relied on the following documents in support of her case:(a)Her Response to an Application in a Case filed 30 June 2021;(b)Her Affidavit filed 30 June 2021;(c)Her Financial Statement filed 30 June 2021; and(d)Her written submissions filed 30 June 2021.THE APPLICABLE LAW The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that:(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. Section 117(2A) sets out the matters that the Court is to have regard to: (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:(a)the financial circumstances of each of the parties to the proceedings;(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and(g)such other matters as the court considers relevant. Although the Court is required to consider each of the abovementioned factors, it is plain that their relevance to a particular matter will depend upon the circumstances of that case and they should be considered in that light. That is, no one factor prevails over another and it is a question of the weight that is to be afforded to each of the relevant factors depending on the circumstances of the matter: Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24]. There is also “nothing to prevent any factor being the sole foundation for an order for costs”: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at [41].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	WOC 777 of 2014
Judgment of:	ALTOBELLI J
Date of judgment:	5 October 2021
Catchwords:	FAMILY LAW – COSTS – Indemnity Costs – Indemnity costs ordered in a fixed sum.
Legislation:	s 117 of the Family Law Act 1975 (Cth)
Cases cited:	Bhatt & Acharya (Costs) [2017] FamCAFC 71 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158 Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Lenova & Lenova (Costs) [2011] FamCAFC 141 Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of last submission/s:	7 July 2021
Date of hearing:	By way of written submissions
Place:	In Chambers
Solicitor for the Applicant:	Bowral Legal
Solicitor for the Respondent:	Coutts Solicitors & Conveyancers

WOC 777 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS PARTLETT Applicant
AND:	MS D PARTLETT Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	5 OCTOBER 2021