Pencious & Pencious (No 2) - [2012] FamCA 212

FAMILY COURT OF AUSTRALIA

PENCIOUS & PENCIOUS (NO 2)

[2012] FamCA 212

FAMILY LAW - COSTS – Indemnity costs where husband unsuccessful in seeking an order that wife’s solicitor be restrained from acting.
Independent Children’s lawyer seeks costs based on involvement - Involvement disputed by husband as unnecessary - Objection rejected and order made.

Family Law Act 1975 (Cth)

Arundel Chiropractic Centre Pty Ltd and Deputy Commissioner of Taxation [2001] HCA 26; [2001] 179 ALR 406
Fitzgerald (as child representative for AF (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123
Kohan and Kohan (1993) FLC 92-340
Latoudis v Casey (1991) 70 CLR 534
Limousin v Limousin (Costs) (2007) 38 Fam LR 478
Munday v Bowman (1997) FLC 92-784
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Mr Pencious

RESPONDENT:

Ms Pencious

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

11069

2008

DATE DELIVERED:

5 April 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT:

Hardys

SOLICITOR FOR THE RESPONDENT:

Adrian Abrahams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lampe Family Lawyers

Orders

That the husband pay the wife’s costs in a sum to be agreed and failing agreement, as assessed pursuant to paragraph 2 hereof.
Pursuant to Rule 19.18(1)(b) and (c) and for the purposes of paragraph 1 of these orders the wife is entitled to indemnity costs calculated according to the costs agreement she has executed with Adrian Abrahams and not according to the schedule to the Family Law Rules 2004 but for the purposes of any assessment, the applicable principles are those set out in Rule 19.34(1), (2) and (3).
That the husband pay the Independent Children’s Lawyer’s costs fixed in the sum of $10,947.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Pencious (No 2) 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

Independent Children’s Lawyer

REASONS FOR COSTS JUDGMENT

Two applications have been made for costs. The first is by the wife and the second by the Independent Children’s Lawyer.
The wife seeks indemnity costs of $212,964 against the husband. The Independent Children’s Lawyer seeks costs of $10,947 against the husband. The husband’s position is that the wife’s application should be adjourned until the determination of the overall proceedings.
The overall proceedings include property and parenting matters.
In relation to the application of the Independent Children’s Lawyer, the husband submitted there was no need for her involvement in the proceedings I determined and therefore no basis for an order for costs.
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that subject to some other provisions of the Act, each party shall bear his or her own costs. Section 117(2) however provides that if…

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 Pencious & Pencious (No 2)

Details

AGLC: Pencious & Pencious (No 2) [2012] FamCA 212
Case: [2012] FamCA 212
Decision Date: 5 April 2012

CaseChat Overview and Summary

In *Pencious & Pencious (No 2)*, the husband and wife were parties to family law proceedings concerning property settlement and costs. The decision was made by Cronin J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was the assessment of costs, specifically whether the wife was entitled to indemnity costs and how those costs should be calculated. The court was also required to determine the quantum of costs payable to the Independent Children’s Lawyer.

Cronin J ordered that the husband pay the wife's costs, with the quantum to be agreed between the parties or assessed. Crucially, the court ruled that the wife was entitled to indemnity costs, calculated according to her costs agreement with her solicitor, Adrian Abrahams, rather than the standard schedule of the *Family Law Rules 2004*. The court specified that the principles for assessment would be those set out in Rule 19.34(1), (2), and (3) of the Rules. Additionally, the husband was ordered to pay the Independent Children’s Lawyer’s costs, fixed at $10,947.

Orders

Orders of the court

That the husband pay the wife’s costs in a sum to be agreed and failing agreement, as assessed pursuant to paragraph 2 hereof.

Pursuant to Rule 19.18(1)(b) and (c) and for the purposes of paragraph 1 of these orders the wife is entitled to indemnity costs calculated according to the costs agreement she has executed with Adrian Abrahams and not according to the schedule to the Family Law Rules 2004 but for the purposes of any assessment, the applicable principles are those set out in Rule 19.34(1), (2) and (3).

That the husband pay the Independent Children’s Lawyer’s costs fixed in the sum of $10,947.

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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