PRANTAGE & PRANTAGE - [2012] FamCA 661

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE

[2012] FamCA 661

FAMILY LAW - COSTS – Indemnity Basis

Family Law Act 1975 (Cth)

Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] 179 ALR 406
Charles & Charles [2007] FamCA 276
Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited; Cussons Pty Limited v Colgate-Palmolive Company and Colgate-Palmolive Pty Limited (1993) 118 ALR 248
Kohan & Kohan (1993) FLC 92-340
Rittman & Rittman (No 3) [2011] FamCA 228

APPLICANT:

Ms Prantage

RESPONDENT:

Mr Prantage

FILE NUMBER:

MLC

11263

2008

DATE DELIVERED:

10 August 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:

Lampe Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Gadens Lawyers

Orders

That the husband pay the wife’s costs relating to the parenting proceedings on an indemnity basis from 28 January 2010 .
For the purposes of paragraph 1, the costs be determined by agreement and failing agreement as assessed by a Registrar pursuant to Chapter 19 of the Family Law Rules 2004.
Any assessment by a Registrar under these orders shall be on the following basis:
(a)the quantum shall be determined by reference to the costs agreement executed between the wife and her legal practitioner;
(b)the costs shall only relate to the parenting part of the proceedings;
(c)the principles to be otherwise applied shall be those set out in rule 19.34(1) of the said rules.
(d)The wife’s costs associated with the retention of counsel and an instructing solicitor at all hearings were reasonably and properly incurred.
To the extent that the Registrar requires guidance in the exercise of any discretion under these orders, then, pursuant to rule 19.33(1)(i), the Registrar may refer questions involved in the assessment to the Honourable Justice Cronin after consultation with the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prantage & Prantage 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 11263 of 2008

Ms Prantage

Applicant

And

Mr Prantage

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By paragraph 6 of the orders I made on 2 March 2012, provision was made for applications by any party for costs. Any such application had to be filed and served by 4.00pm on 30 April 2012 and any reply thereto be filed and served by 4.00pm on 7 May 2012.
The wife’s submission encompassing an application was filed on 29 March 2012 to which the husband replied by submission filed on 30 April 2012. In addition, the wife responded to the husband’s material by filing a reply on 3 May 2012. All of those submissions have been considered.

These proceedings

These were parenting and property proceedings culminating in orders made on 24 December 2010 after a trial that ran for 11 days.
A number of serious allegations were made each…

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 PRANTAGE & PRANTAGE

Details

AGLC: PRANTAGE & PRANTAGE [2012] FamCA 661
Case: [2012] FamCA 661
Decision Date: 10 August 2012

CaseChat Overview and Summary

In *Prantage & Prantage*, the husband was ordered to pay the wife’s costs in relation to parenting proceedings on an indemnity basis from 28 January 2010. These costs were to be determined by agreement between the parties, or failing that, assessed by a Registrar in accordance with Chapter 19 of the *Family Law Rules 2004*.

The court was required to determine the basis upon which the wife's costs in the parenting proceedings should be assessed. Specifically, the assessment was to be guided by the costs agreement between the wife and her legal practitioner, limited to the parenting aspects of the proceedings, and otherwise governed by rule 19.34(1) of the *Family Law Rules 2004*. The court also confirmed that the wife's costs for counsel and an instructing solicitor at all hearings were reasonably and properly incurred.

Justice Cronin provided further direction for any Registrar undertaking the assessment, allowing for referral of questions to the Honourable Justice Cronin for guidance, after consultation with the parties, pursuant to rule 19.33(1)(i). The primary principle applied was that the costs incurred by the wife in the parenting proceedings were to be paid by the husband on an indemnity basis, reflecting the court's view on the conduct of the proceedings.

Orders

Orders of the court

That the husband pay the wife’s costs relating to the parenting proceedings on an indemnity basis from 28 January 2010 .

For the purposes of paragraph 1, the costs be determined by agreement and failing agreement as assessed by a Registrar pursuant to Chapter 19 of the Family Law Rules 2004.

Any assessment by a Registrar under these orders shall be on the following basis:

(a) the quantum shall be determined by reference to the costs agreement executed between the wife and her legal practitioner;

(b) the costs shall only relate to the parenting part of the proceedings;

(d) The wife’s costs associated with the retention of counsel and an instructing solicitor at all hearings were reasonably and properly incurred.

To the extent that the Registrar requires guidance in the exercise of any discretion under these orders, then, pursuant to rule 19.33(1)(i), the Registrar may refer questions involved in the assessment to the Honourable Justice Cronin after consultation with the parties.

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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