PENCIOUS & PENCIOUS - [2013] FamCA 645

FAMILY COURT OF AUSTRALIA

PENCIOUS & PENCIOUS

[2013] FamCA 645

FAMILY LAW – Practice and procedure

Family Law Act 1975 (Cth)

Burrell v The Queen [2008] HCA 34; [2008] 238 CLR 218 per Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ
Noetel v Quealey [2005] FamCA 677; (2005) FLC 93-230

APPLICANT:

Mr Pencious

RESPONDENT:

Ms Pencious

FILE NUMBER:

MLC

11069

2008

DATE DELIVERED:

29 August 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

29 August 2013

IN CHAMBERS

SOLICITOR FOR THE APPLICANT:

Altona Legal

SOLICITOR FOR THE RESPONDENT:

Adrian Abrahams Family Lawyers

Orders

That Registrar Kaur provide to each of the practitioners in this matter, a copy of the reasons this day for these orders.
That each of the husband and wife (if so advised) by 4 pm on 10 September 2013 file with Registrar Kaur a brief submission as to what issue (if any) concerns them as to the approach to be taken by the registrar in assessment of costs arising out of the orders made on 5 April 2012.
That Registrar Kaur refer any such submission to Justice Cronin and whether or not any submission is received, the question raised by her on 27 August 2013 under rule 19.33 of the Family Law Rules 2014 be determined in chambers by Justice Cronin.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & 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 Pencious

Respondent

REASONS FOR JUDGMENT

On 5 April 2012, I made an order for costs against the husband. That order provided that failing agreement between the parties, the costs be assessed by the Registrar.
By a letter dated 27 August 2013, the Registrar wrote to me saying that a “question” had been raised by the legal practitioner for the husband as to the scope of the order. I have inferred from the letter that the “question” is whether the order relates only to the hearing days (in total six) or includes the various things that go towards proceedings relating to the hearing days.
The distinction between the two positions lies in the fact that this was a discrete hearing albeit over six days in the midst of disputed parenting and property proceedings between the husband and the wife. The six days’ hearing concerned whether the wife could continue to engage the legal practitioner she had for the parenting and property matter. The reference to proceedings was to that discrete proceeding involving the legal practitioner and not the parenting and property case.
In my reasons for judgment, I said:
·I would order that the husband pay the wife’s costs in a sum to be agreed and failing agreement, as assessed;
·In this case, the parenting and property substantive disputes remain unresolved but that was not what I…

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

AGLC: PENCIOUS & PENCIOUS [2013] FamCA 645
Case: [2013] FamCA 645
Decision Date: 29 August 2013

CaseChat Overview and Summary

In the matter of *Pencious & Pencious*, heard before Cronin J, the dispute concerned the assessment of costs arising from orders made on 5 April 2012. The specific issue before the court was how the registrar should approach the assessment of these costs, and whether any particular concerns held by the husband and wife should be taken into account.

The court was required to determine the procedure for the assessment of costs, specifically addressing the role of the registrar and the potential input from the parties. The central legal issue was how to ensure a fair and appropriate assessment of costs, considering any specific concerns raised by the parties involved.

Cronin J directed that the registrar provide a copy of the reasons for the orders to the practitioners. Furthermore, the husband and wife were given the opportunity to file submissions regarding any concerns they had about the registrar's approach to the costs assessment. The registrar was then to refer any such submissions, or the absence thereof, to Justice Cronin for determination in chambers, thereby clarifying the process for the costs assessment.

Orders

Orders of the court

That Registrar Kaur provide to each of the practitioners in this matter, a copy of the reasons this day for these orders.

That each of the husband and wife (if so advised) by 4 pm on 10 September 2013 file with Registrar Kaur a brief submission as to what issue (if any) concerns them as to the approach to be taken by the registrar in assessment of costs arising out of the orders made on 5 April 2012.

That Registrar Kaur refer any such submission to Justice Cronin and whether or not any submission is received, the question raised by her on 27 August 2013 under rule 19.33 of the Family Law Rules 2014 be determined in chambers by Justice Cronin.

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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