Pencious and Searle (Formerly Pencious) - [2013] FamCA 754

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE (FORMERLY PENCIOUS)

[2013] FamCA 754

FAMILY LAW – COSTS – Application by husband for costs of two hearings and costs of costs application – Application dismissed

Family Law Act 1975 (Cth) s 117

Woodley & Time and Anor [2008] FamCA

APPLICANT:

Mr Pencious

RESPONDENT:

Ms Searle (formerly Pencious)

FILE NUMBER:

MLC

11069

2008

DATE DELIVERED:

13 September 2013

PLACE DELIVERED:

Hobart

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

31 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Carlile

SOLICITOR FOR THE APPLICANT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Wood

SOLICITOR FOR THE RESPONDENT:

Altona Legal

ORDERS

The husband’s application in a case filed 24 June 2013 (for costs of two days of the hearing and costs of the application in a case) is dismissed.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle (formerly Pencious) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11069 of 2008

Mr Pencious

Applicant

And

Ms Searle (formerly Pencious)

Respondent

REASONS FOR JUDGMENT

introduction

On 24 June 2013 Mr Pencious (“the Husband”) filed an application in a case seeking orders that Ms Searle (formerly Pencious) (“the Wife”) pay his costs incidental to the hearings on 23 April 2013 and 13 May 2013.
That application was supported by an affidavit of the Husband filed 24 June 2013. The Husband based his application for costs on the grounds that the trial was extended by an additional two days as a consequence of the Wife’s counsel seeking to re-open her case on the basis that certain evidence was not in evidence between the parties with regard to a DVD.
The Husband said in his affidavit:-[1]
3.At the hearing of this proceeding on 23 April 2013 and during my counsel making closing submissions on my behalf, the wife, through her counsel, sought to re-open her case on the basis that certain evidence which was sought to be tendered on her behalf had not in fact been either called or admitted into evidence. The evidence related to a DVD recording taken by the wife following the parties’ separation.
4.Despite objection on my behalf, the wife’s case was re-opened, the proceedings adjourned and evidence given on 13 May 2013 in relation to the DVD.
5.As a consequence, I have incurred costs occasioned by the failure of the wife to call that evidence resulting in the hearing occupying further Court time.
6.I seek that the wife pay my costs incurred as a consequence of such evidence not being called during the presentation of evidence on behalf of the wife.
[1] Filed the 24 June 2013.
That application was opposed by the Wife and submissions were made. This matter amounted to…

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.

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Details

Case: [2013] FamCA 754
Decision Date

CaseChat Overview and Summary

In *Pencious and Searle (Formerly Pencious)*, the Family Court of Australia considered an application by the husband for costs associated with two previous hearing days and the costs of the costs application itself. The husband sought these costs on the basis that the trial had been extended by two days due to the wife's counsel seeking to re-open her case to admit evidence concerning a DVD. The wife opposed this application.

The primary legal issue before the court was whether there were sufficient circumstances to justify making a costs order against the wife, pursuant to section 117 of the *Family Law Act 1975* (Cth). This required the court to consider the general rule that each party bears their own costs, and the exceptions provided by the Act, particularly section 117(2A), which mandates regard to various factors including the financial circumstances of the parties, their conduct in relation to the proceedings, and whether any party was wholly unsuccessful.

Justice Benjamin dismissed the husband's application for costs. The court found that while the wife's counsel sought to re-open the case regarding the DVD, this did not, in the overall context of the proceedings, constitute conduct that warranted a costs order against the wife. The court noted that the admission of the DVD without formal proof had not been agreed, and the husband had objected to its admission without such proof, necessitating an adjournment. However, the court also observed that it would have been necessary to reconvene in any event due to the breadth of submissions and the involvement of a company. The court applied the principles of section 117 of the *Family Law Act 1975*, emphasizing that costs orders are discretionary and require consideration of all relevant factors under section 117(2A), including the conduct of the parties. In this instance, the court determined that the circumstances did not justify departing from the general rule that each party bears their own costs.

Orders