FEDERAL CIRCUIT COURT OF AUSTRALIA
| REILLY & REILLY (No.2) | [2016] FCCA 1706 |
| Catchwords: FAMILY LAW – Costs – costs stemming from the determination of property adjustment proceedings – where the wife seeks an order that the husband pay her costs – full and frank disclosure – where numerous offers of settlement were made by the wife to the husband – consideration of section 117 of the Family Law Act 1975 – where a party has not demonstrated an outcome focused approach towards the dispute – justifying circumstance satisfied – husband ordered to pay the wife’s costs. |
| Legislation: Family Law Act 1975, ss.60I, 75(2), 79, 117 Federal Circuit Court Rules 2001, rr.1.05, 21.02, 21.09, 21.11, 24.04 |
| Cases cited: Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 Collins & Collins (1985) 9 Fam LR 1123 Robinson & Higginbotham (1991) FLC 92-209 Bryant v Hawkesbury Radio Communication Co-operative Society Limited [2014] NSWSC 848 Other Articles Cited: Explanatory Memorandum, Civil Dispute Resolution Bill 2010 (Cth) General Outline. Bathurst, T.F, “The Role of Courts in the Changing Dispute Resolution Landscape” [2012] UNSWLJ1 36, 870, 35(3) Tania Sourdin, “Forum: Civil Dispute Resolution Obligations: What is Reasonable?” (2012) 35 UNSWLJ 889 Ministry of Justice, UK, “Solving disputes in the county courts: creating a simpler, quicker and more proportionate system – a consultation on reforming civil justice in England and Wales”, Presented to Parliament by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty March 2011, available at Judge Joe Harman, “Should Mediation be the First Step in all Family Law Act Proceedings?” (2016) 27 ADJR 1 |
| Applicant: | MS REILLY |
| Respondent: | MR REILLY |
| File Number: | PAC 4844 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 24 February 2016 |
| Date of Last Submission: | 24 February 2016 |
| Delivered at: | Parramatta |
| Delivered… |
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- AGLC
- Reilly and Reilly (No.2) [2016] FCCA 1706
- Case
- [2016] FCCA 1706
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the quantum and terms of the costs order to be made in favour of the wife. Specifically, the court had to determine whether to award costs and, if so, the amount and the conditions under which it would be payable, including provisions for interest and security for payment.
Judge Harman ordered the husband to pay the wife a contribution of $20,000 towards her costs within 90 days. The order stipulated that no interest would accrue if payment was made within this timeframe, but interest would apply thereafter on any outstanding amount. The wife was granted the right to lodge a caveat or writ against the husband's interest in a specific property to secure payment, with an obligation to withdraw it upon full satisfaction of the debt. All outstanding applications and responses were dismissed.
Orders
Orders of the court
1.
The husband shall pay to the wife or as the wife may direct in writing as a contribution to her costs with respect to both substantive property adjustment proceedings concluded 23 September 2015 and these proceedings, the sum of $20,000 such costs to be paid within 90 days of today’s date.
2.
With respect to the above award of costs the following shall apply:
(a) Interest shall not accrue upon the sum provided it is paid in full within 90 days and in the event that it is not then interest shall accrue at the rate prescribed by the Federal Circuit Court Rules 2001 from time to time upon so much of that amount as remains outstanding from time to time;
(b) If the above sum is not paid in full within 90 days of today’s date then the wife shall be entitled to commence recovery proceedings in a Court of competent jurisdiction; and
(c) The above award of costs in the sum of $20,000 shall represent a charge upon Mr Reilly’s interest in real estate and specifically his interest in the property, Property J in the State of New South Wales and the wife shall be entitled to record a caveat or writ against title to secure payment, provided however, that upon payment being made in full (together with any interest accrued or costs as might subsequently be ordered) the wife shall forthwith do all things, sign all documents and give all consents, authorities and instructions as may be necessary to cause immediate withdrawal of said caveat or writ.
3.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
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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