FAMILY LAW – COSTS – Where an application is made by the de facto husband seeking an order that the de facto wife pay his costs of and incidental to the proceedings on an indemnity basis or in the alternative on a party/party basis – Where the de facto wife opposes the application – Where proceedings were cross-vested from the Supreme Court of Victoria – Where the de facto wife failed to comply with her obligations of disclosure in the substantive proceedings – Where the de facto wife pressed for findings in relation to unmeritorious contentions in the substantive proceedings – Consideration of the conduct of the parties in respect to the proceedings – Whether the de facto wife was wholly unsuccessful – Whether the de facto wife was substantially unsuccessful – Consideration of the outcome of the substantive proceedings – Whether the de facto wife has imprudently rejected a written formal offer of settlement made by the de facto husband – Consideration of written offers of settlement – Orders made for costs in favour of the de facto husband.
[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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AGLC
RILEY & MASSALSKI [2020] FamCA 389
Case
[2020] FamCA 389
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, His Honour McClelland DCJ considered an application by the de facto husband, Mr Riley, for an order that the de facto wife, Ms Massalski, pay his costs of and incidental to the proceedings on an indemnity or, alternatively, a party/party basis. Ms Massalski opposed this application. The proceedings had been cross-vested from the Supreme Court of Victoria.
The court was required to determine whether Ms Massalski should be ordered to pay Mr Riley's costs, and on what basis. This involved considering Ms Massalski's conduct during the substantive proceedings, specifically her failure to comply with her disclosure obligations and her pursuit of unmeritorious contentions. The court also had to assess the overall outcome of the substantive proceedings to determine if Ms Massalski was wholly or substantially unsuccessful, and whether she had imprudently rejected a formal written offer of settlement made by Mr Riley.
His Honour found that Ms Massalski's conduct warranted a costs order in favour of Mr Riley. The court considered her failure to meet her disclosure obligations and her insistence on unmeritorious arguments as significant factors. Furthermore, the court took into account the outcome of the substantive proceedings and the fact that Ms Massalski had rejected a formal settlement offer from Mr Riley.
Consequently, the court ordered that Ms Massalski pay Mr Riley's costs of and incidental to the Supreme Court of Victoria proceedings and the Family Court proceedings from 24 February 2017 onwards, on a party/party basis. These costs were to be paid within 28 days of agreement or assessment.
Orders
Orders of the court
1.
That the Respondent, Ms Massalski, pay the Applicant’s, Mr Riley, costs of and incidental to the following on a party/party basis as agreed or assessed:
(a) Supreme Court of Victoria Proceedings no … 2016/…;
(b) The proceedings herein in respect to the period on and from 24 February 2017.
2.
The costs determined in accordance with order (1) are to be paid within 28 days of being agreed or assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.