POOLE & POOLE (No.2) - [2014] FCCA 1410

FEDERAL CIRCUIT COURT OF AUSTRALIA

POOLE & POOLE (No.2)

[2014] FCCA 1410

Catchwords:
FAMILY LAW – Application for costs – following determination of property adjustment and parenting proceedings – justifying circumstance not made out – costs application dismissed – applicant did not genuinely prosecute position or act in good faith.

Legislation:

Family Law Act 1975 (Cth), ss.117, 117C

Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001, r.44.15

Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812
Brown & Brown [1998] FamCA 115
Browne & Green [2002] FLC 93-115

Marinko (1983) FLC 91-307

White (1982) FLC 91-246

Greedy [1982] FLC 91-250

Tuck [1981] FLC 91-021

Rouse [1981] FLC 91-073

Kelly (No.2) [1981] FLC 91-108

Davida (Costs) [2011] FamCAFC 61

Robinson & Higginbotham (1991) FLC 92-209

Telfer [1996] FLC 92-688

Prantage [2013] FamCAFC 105

Applicant:

MS POOLE

Respondent:

MR POOLE

File Number:

CAC 1681 of 2011

Judgment of:

Judge Harman

Hearing date:

By written submissions

Date of Last Submission:

30 May 2014

Delivered at:

Parramatta

Delivered on:

9 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr Mazengarb

Solicitors for the Applicant:

Mazengarb Family Lawyers

Counsel for the Respondent:

Mr Cummings

Solicitors for the Respondent:

Farrar Gesini Dunn

ORDERS

Dismiss the Application for Costs made by Ms Poole.
Each party shall pay their own costs of and incidental to these proceedings and with respect to the determination of the Costs Application.
Publish my Reasons.

IT IS NOTED that publication of this judgment under the pseudonym Poole & Poole (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAC 1681 of 2011

MS POOLE

Applicant

And

MR POOLE

Respondent

REASONS FOR JUDGMENT

The proceedings

This determination relates to an Application for Costs consequent upon determination and conclusion of proceedings between the parties with respect to both property adjustment and parenting applications. Separate reasons were delivered disposing of the substantive issues.
The parties to the proceedings are a former husband and wife,

Ms Poole and Mr Poole. Ms Poole is the Applicant and moving party as regards the issue of costs. Mr Poole resists and opposes any Order with respect to costs.
The matter has proceeded on the basis of the following material having been read and considered:
a)My Reasons for Judgment with respect to the substantive issues;
b)Written Submissions on behalf of the wife filed 9 May 2014;
c)Affidavit of the wife filed 8 May 2014;
d)Written Submissions filed on behalf of the husband 30 May 2014;
e)Affidavit of the husband filed 30 May 2014.
As the issues in dispute between the parties are entirely clear and addressed in their Written Submissions and Affidavit material, I have not sought to afford to the parties any further opportunity to make oral submissions nor has an application been made for same.

General Principles

As identified by both parties the determination of an application for costs is governed by section 117 of the Family Law Act 1975 (Cth).
Section 117(1) sets…

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 POOLE & POOLE (No.2)

Details

AGLC: POOLE & POOLE (No.2) [2014] FCCA 1410
Case: [2014] FCCA 1410
Decision Date: 9 July 2014

CaseChat Overview and Summary

In the matter of *Poole & Poole (No.2)*, Judge Harman of the Family Court of Australia considered an application for costs brought by Ms Poole following the determination of property adjustment and parenting proceedings. The core of the dispute revolved around whether Ms Poole had established a "justifying circumstance" for an award of costs against Mr Poole.

The central legal issue before the court was whether Ms Poole's conduct during the proceedings warranted an order for costs in her favour. Specifically, the court had to determine if Ms Poole had genuinely prosecuted her position or acted in good faith throughout the litigation, as required to establish a justifying circumstance for departing from the usual rule that each party bears their own costs.

Judge Harman dismissed Ms Poole's application for costs. The court found that Ms Poole had not genuinely prosecuted her position nor acted in good faith during the proceedings. Consequently, no justifying circumstance was made out to deviate from the standard costs rule.

The court ordered that Ms Poole's application for costs be dismissed. Furthermore, each party was ordered to bear their own costs of and incidental to both the original property and parenting proceedings, as well as the costs associated with the determination of the costs application itself.

Orders

Orders of the court

ORDERS

1. Dismiss the Application for Costs made by Ms Poole.

2. Each party shall pay their own costs of and incidental to these proceedings and with respect to the determination of the Costs Application.

3. Publish my Reasons.

IT IS NOTED that publication of this judgment under the pseudonym Poole & Poole (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

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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