Pencious & Pencious (No 2)

[2013] FamCA 748

FAMILY COURT OF AUSTRALIA

PENCIOUS & PENCIOUS (NO 2) [2013] FamCA 748

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Pencious

RESPONDENT: Mr Pencious

FILE NUMBER: MLC 11069 of 2008

DATE DELIVERED: 3 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyers

SOLICITOR FOR THE RESPONDENT: Altona Legal

Orders

1. That the Registrar assess the costs pursuant to the orders made 5 April 2012 according to the ruling this day.

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

Ms Pencious

Applicant

And

Mr Pencious

Respondent

REASONS FOR JUDGMENT

1. As a result of the orders I made on 29 August 2013, each of the husband and wife provided written submissions. The wife’s was drawn and signed by Mr Wood of Counsel and the husband’s by his solicitor Mr Canals.

2. In the August reasons, I described the issue which gave rise to the referral by a registrar as follows:

   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 6) or includes the various things that go towards proceedings relating to the hearing days.

3. I am not sure where the confusion came from which gave rise to the registrar’s request because of the following matters.

4. In her submissions, the wife through her counsel wrote:

   It appears that the husband’s position is that the costs order only relates to the costs of the hearing itself with respect to the application. On this basis, it is suggested by the husband that the wife is not entitled to any costs incurred by her in relation to the application prior to the commencement of the hearing.

   It is submitted that paragraph 1 of the costs orders could not be cast in wider terms. Indeed, on its face, paragraph 1 of the costs orders would indicate that the wife is entitled to all costs which have been incurred by her prior to the making of the order, regardless of whether they relate to the application or otherwise. This was obviously not the intention of the order. The wife accepts that the costs which are governed by the costs orders are those with respect to the application. (emphasis added)

5. Counsel submitted that the intention was to make an order for the costs relating to the discrete application. Further, to the extent there was a problem, it could be cured by the use of the “slip rule”.

6. My understanding of the registrar’s…