Rafter and Rafter (No 3) - [2012] FamCA 975

FAMILY COURT OF AUSTRALIA

RAFTER & RAFTER (NO 3)

[2012] FamCA 975

FAMILY LAW – COSTS – Application by wife for costs order against husband of and incidental to the proceedings including the wife's application for costs on indemnity basis or alternatively party and party basis – Order that husband pay 90 per cent of the wife’s costs of and incidental to the proceedings including her costs application on the party and party basis to be assessed if not agreed the payment to be made within 30 days from the date of agreement or assessment

Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Family Law Rules 2004 rr 19.08, 19.18

Colgate-Palmolive Company & Anor v Cussons Pty Ltd [1993] FCA 536
D & D (Costs) [2006] FamCA 846
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA Branch) No 2 (1993) 46 IR 301
Fennessy & Gregorian [2009] FamCAFC 44; (2009) FLC 93-399
Penfold and Penfold (1981) 44 CLR 311
Spehar & Spehar (unreported) NA51 of 2003, 9 January 2004

APPLICANT:

Ms Rafter

RESPONDENT:

Mr Rafter

FILE NUMBER:

(P)BRC

9414

2008

DATE DELIVERED:

20 November 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

14 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Galloway

SOLICITOR FOR THE APPLICANT:

Rostron Carlyle Solicitors

THE RESPONDENT:

In person

Orders

IT IS ORDERED

The husband pay to the wife 90 per cent of her costs of and incidental to these proceedings including her costs application on the party and party basis, to be assessed if not agreed, the payment to be made within 30 days from the date of agreement or assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rafter & Rafter (No 3) 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 BRISBANE

FILE NUMBER: (P) BRC9414 of 2008

Ms Rafter

Applicant

And

Mr Rafter

Respondent

REASONS FOR JUDGMENT

Applications

The wife by application in a case filed 12 June 2012 sought:
1. That the husband pay the wife’s costs and incidental to these proceedings which were commenced by the wife on 8 February 2010 (including this application for costs) on a full indemnity basis in such amount as shall be agreed upon by the parties and failing agreement as assessed.
2.In the alternative that the husband pay the wife’s costs of and incidental to these proceedings (including this application for costs) on a party and party basis in such amount as shall be agreed upon between the parties and failing agreement as assessed.
3.Such further or other order as this Honourable Court shall deem meet.
In an affidavit by the wife’s solicitor filed 9 August 2012 (folio 60), the wife sought to add a further alternative (par 54 of that affidavit):
· In the alternative…

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 Rafter and Rafter (No 3)

Details

AGLC: Rafter and Rafter (No 3) [2012] FamCA 975
Case: [2012] FamCA 975
Decision Date

CaseChat Overview and Summary

In *Rafter and Rafter (No 3)*, the Federal Court of Australia considered an application by the husband to set aside or vary a consent property order made on 14 November 2008, and also dealt with applications for spousal maintenance and costs. The court also addressed the payment of arrears of interim spousal maintenance and the costs associated with a single expert report.

The primary legal issues before the court were whether the husband had established grounds to set aside or vary the existing consent property order under section 79A(1)(b) of the *Family Law Act 1975* (Cth), and the appropriate orders to be made regarding spousal maintenance, including arrears, and the costs of a particular expert report. The court was also required to determine the procedural steps for the hearing of costs applications.

The court dismissed the husband's application to set aside or vary the consent property order. It ordered the husband to pay $23,000 to the wife to fulfil specific paragraphs of the 2008 consent order. Furthermore, the court ordered the husband to pay $500 per week in spousal maintenance from the date of the order until varied or discharged, and also ordered payment of arrears of interim spousal maintenance totalling $41,250 and $14,250 for specified periods. The wife's application for the husband to pay or contribute to the costs of a report by V Consulting was dismissed. The court then set out a timetable for the filing and service of materials and the hearing of costs applications, which was subsequently adjourned on medical grounds for the husband, with a new hearing date set for August 2012. Consent was given for medical reports to be annexed to affidavits without requiring the medical practitioners to file their own affidavits.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 4 June 2012 I gave judgment in this matter (the reasons for judgment) and ordered:IT IS ORDEREDConsent property order 1. The husband’s application under s79A(1)(b) of the Family Law Act 1975 (Cth) to set aside or vary the consent property order made on 14 November 2008 is dismissed.2. The husband perform paragraphs 3c and 3d of the consent property order made 14 November 2008 by payment to the wife of $23,000 within 30 days from the date of this order.Spousal maintenance 3. The husband pay to the wife $500 per week spousal maintenance weekly in advance from the date of this order, until such time as the Court (or the Federal Magistrates Court) varies or discharges this order or the parties in writing agree for its variation or discharge. Interim spousal maintenance – arrears 4. The husband pay to the wife $41,250 arrears of interim spousal maintenance for the period 31 March 2010 until 17 November 2011 (calculated at $500 per week x 85 weeks $42,500 less $1250 paid) such payment to be made within 30 days from the date of this order.5. The husband pay to the wife $14,250 arrears of spousal maintenance for the period 18 November 2011 until 3 June 2012 (calculated at $500 per week x 28.5 weeks – 199 days) such payment to be made within 30 days from the date of this order. Costs of [Mr C’s] report 6. The wife’s application that the husband pay for or contribute to the costs of the report by [V Consulting], as a single expert report, is dismissed. AND IT IS FURTHER ORDERED 7. Any applications for costs by either party together with supporting affidavit material and written submissions including identifying the s 117(2A) grounds relied on be filed and served by 4.00pm on Tuesday 12 June 2012.8. Any response/s to such application/s together with supporting affidavit material and written submissions be filed and served by 4.00pm on Tuesday 19 June 2012. 9. Any such applications be listed for hearing before the Honourable Justice O’Reilly at 9.30am Thursday 21 June 2012.10. The parties and/or their legal advisers may appear by telephone for the hearing on that date. On 21 June 2012, for reasons which I then gave, on application by the husband, I allowed the husband an adjournment of the hearing of the wife’s costs application, based upon medical grounds: See the reasons for judgment 21 June 2012. On that date, accordingly, I ordered:IT IS ORDERED 1. The wife’s application for costs filed 12 June 2012 is adjourned and be relisted for hearing at 10.00am on Tuesday 14 August 2012.2. Any material to be relied upon by the husband must be filed and served by 4.00pm on Tuesday 7 August 2012.3. Any material by the wife strictly in response to the husband’s material (if any) must be filed and served by 4.00pm on Thursday 9 August 2012.AND IT IS ORDERED BY CONSENT4. Any medical reports in relation to the husband may be annexed to an affidavit of the husband or his legal representative without the need for the preparing and filing of affidavits by any such medical practitioners.

Ratio Decidendi

Legal Principle Established

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