Rattray & Macauley (No 2) - [2023] FedCFamC2F 1390

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rattray & Macauley (No 2) [2023] FedCFamC2F 1390

File number(s): PAC 2013 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 30 October 2023

Catchwords: FAMILY LAW – Property – Costs of third party in defending a joinder application – Costs order made.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.01

Division: Division 2 Family Law

Number of paragraphs: 22

Date of last submission/s: 5 September 2023

Date of hearing: In Chambers

Place: Parramatta

Solicitor for the Applicant: Coutts Solicitors & Conveyancers

Solicitor for the Respondent: Swaab Attorneys
ORDERS

PAC 2013 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS D

Applicant

AND:
MS MACAULEY

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

30 OCTOBER 2023

THE COURT ORDERS THAT:
1.The wife pay Ms D’s costs in the sum of $3,731 within three months of the date of this Order.
2.The Application in a Proceeding filed on 31 July 2023 by Ms D is otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION AND BACKGROUND

This is the determination of an application for costs by Ms D, the partner of the husband, against the wife; the detail of such application is set out in her Application in a Proceeding filed 31 July 2023. This application is opposed by the wife.
At the outset of the first day of the final property hearing between the husband and wife being 24 July 2023, Ms D successfully opposed an Application in a Proceeding filed by the wife on 14 July 2023 to belatedly join her to the (now finalised) property proceedings.
By way of consent orders made on 29 August 2023, it was agreed that for the purposes of this costs application, the Court could make its determination based upon the written material and related submissions submitted to the Court by Ms D and the wife in the absence of the parties.
Ms D relied upon the material set out and referred to in her written submissions as to…

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 Rattray & Macauley (No 2)

Details

AGLC: Rattray & Macauley (No 2) [2023] FedCFamC2F 1390
Case: [2023] FedCFamC2F 1390
Decision Date: 30 October 2023

CaseChat Overview and Summary

The case of Rattray & Macauley (No 2) involved the parties, Rattray and Macauley, in a family law matter concerning property. The dispute arose from a joinder application filed by one of the parties seeking to include a third party, Ms D, in the proceedings. The matter was heard in the Family Court of Australia. The central issue before the court was whether Ms D's involvement in the proceedings warranted her being joined and, if so, who should bear the costs associated with her defence of the joinder application.

The court had to determine whether the application to join Ms D was justified and, if it was, whether Ms D's involvement necessitated her bearing the costs of defending the joinder application. The court needed to balance the rights of the parties with the interests of justice, particularly focusing on the potential impact of joining Ms D on the proceedings and the fairness of imposing costs on her. The court considered the relevant legal principles concerning joinder of parties in family law matters and the criteria for making a costs order.

In delivering the judgment, the court found that the joinder application was not well-founded and dismissed the application to join Ms D. However, the court held that despite the dismissal of the joinder application, it was appropriate to order Ms D to pay the costs of defending the application. The court reasoned that Ms D's involvement in the application was significant and her defence was necessary to protect her interests. The court concluded that the wife should bear the costs of Ms D's defence to ensure fairness and to prevent an unjust enrichment of the husband. The court ordered the wife to pay Ms D's costs in the sum of $3,731 within three months of the date of the order. The application in a proceeding filed by Ms D on 31 July 2023 was otherwise dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The wife pay Ms D’s costs in the sum of $3,731 within three months of the date of this Order.

2. The Application in a Proceeding filed on 31 July 2023 by Ms D is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 2013 of 2019
Judgment of:	JUDGE NEWBRUN
Date of judgment:	30 October 2023
Catchwords:	FAMILY LAW – Property – Costs of third party in defending a joinder application – Costs order made.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.01
Division:	Division 2 Family Law
Number of paragraphs:	22
Date of last submission/s:	5 September 2023
Date of hearing:	In Chambers
Place:	Parramatta
Solicitor for the Applicant:	Coutts Solicitors & Conveyancers
Solicitor for the Respondent:	Swaab Attorneys

PAC 2013 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS D Applicant
AND:	MS MACAULEY Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	30 OCTOBER 2023