Rentoul v Poynton (No.2) - [2008] FMCAfam 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RENTOUL & POYNTON (No.2)

[2008] FMCAfam 295

FAMILY LAW – Costs – consideration of factors – costs in accordance with Schedule – Counsel’s fees not claimable as disbursement.

Family Law Act 1975 (Cth), ss. 60B, 60CC(2),(3),(4) &(4A), 117(2) & (2A)
Federal Magistrates Court Rules, 2001 (Cth) rr.21.02(a), 21.15, 21.16 and Schedule 1

ASR & BP [2007] FMCAfam 552
Barker v Barker & Wade (1976) 113 ALR 123
C & C (No 2) [2007] FMCAfam 54
Colan Products Pty Ltd v Luxton Pty Ltd & Anor (No 2) [2002] FMCA 90
Gaudry & Gaudry (No 2) [2004] FMCAfam 649
Genovese v BGC Construction Pty Ltd (No 2) [2007] FMCA 601
In the Marriage of Kohan (1992) 16 FamLR 245
In the Marriage of I & I (No 2) (1995) 22 FamLR 557
In the Marriage of WPJ Munday & MHJ Bowman (1997) 22 FamLR 321
In the Marriage of SH & P Brown (1998) 23 FamLR 349
In the Marriage of AR & DJ Telfer (1996) 20 FamLR 619
Knight & Sullivan (No 2) [2008] FMCAfam 55
Penfold v Penfold (1980) 144 CLR 31
Pratt v Latta (No 2) [2002] FMCA 43
Ogawa v University of Melbourne (No 2) [2005] FMCA 1216
Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184
RNL & RHB [2005] FMCAfam 520
VDAT v Minister for Immigration (No 2) [2003] FMCA 166

Applicant:

MR RENTOUL

Respondent:

MS POYNTON

File number:

MLM 9808 of 2006

Judgment of:

Lucev FM (delivered by Scarlett FM)

Hearing date:

Written submissions

Date of last submission:

28 September 2007

Delivered at:

Sydney via telephone link to Melbourne

Delivered on:

1 April 2008

REPRESENTATION

Solicitors for the Applicant:

David Stagg Tonkin & Co

Solicitors for the Respondent:

Kempsons Lawyers

ORDER

The Respondent to pay the Applicant’s costs in the sum of $8352.50, with three (3) months to pay.

IT IS NOTED that publication of this judgment under the pseudonym Rentoul & Poynton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

MLM 9808 of 2006

MR RENTOUL

Applicant

And

MS POYNTON

Respondent

REASONS FOR JUDGMENT

Introduction

On 31 August 2007 the Court delivered judgment in relation to an application filed by the Applicant Father seeking parenting orders concerning the child of his relationship with the Respondent Mother. [1]
[1] ASR & BP [2007] FMCAfam 552.
When the Reasons for Judgment in ASR & BP were delivered the Court made orders, upon the oral application of the Father, for written submissions to be filed in relation to costs.
The Father now seeks that the Mother pay his costs.

Costs

Section 117 of the Family Law Act 1975 (Cth)[2] prescribes the Court’s power to award costs in family law proceedings.
[2] “FL Act”.
The law concerning costs in family law proceedings can be summarised as follows:
a)the Court must find that there are justifying circumstances before making a costs order;
b)there is no…

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.

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Details

Case: [2008] FMCAfam 295
Decision Date: 1 April 2008

CaseChat Overview and Summary

The case of Rentoul v Poynton (No.2) involved an application for parenting orders concerning the child of the Applicant Father and the Respondent Mother. The Federal Magistrates Court was tasked with determining the allocation of costs between the parties following the judgment in the initial application. The primary legal issue before the Court was whether the Respondent Mother should be ordered to pay the Father's costs, and if so, the quantum of such costs.

The Court considered the relevant factors under Section 117(2A) of the Family Law Act 1975 (Cth), which guide the allocation of costs in family law proceedings. This included examining the financial circumstances of each party, their conduct during the proceedings, and the success or failure of each party in the proceedings. The Court found that the Mother's conduct during the proceedings was confrontational and driven by personal considerations rather than the best interests of the child. This conduct contributed significantly to the length and complexity of the proceedings. Despite not being wholly unsuccessful, the Mother failed to achieve several key objectives she had argued for at length. The Court concluded that the Mother's conduct warranted an order for costs against her.

In determining the quantum of costs, the Court assessed the expenses in accordance with Schedule 1 of the Federal Magistrates Court Rules. The Father was awarded costs for legal representation at the hearing, disbursements such as filing and service fees, and costs associated with preparing written submissions on the costs application. The Court rejected the claim for Counsel’s fees as disbursements, ruling that they were governed by specific rules and thus not claimable as disbursements.

The Court ordered the Mother to pay the Father's costs in the sum of $8352.50, with a deadline of three months for payment. The Court's decision was based on the significant impact of the Mother's conduct on the proceedings, which necessitated a costs order against her despite the lack of a basis for indemnity costs.

Orders