Ripley and Nestor - [2018] FamCA 1051

FAMILY COURT OF AUSTRALIA

RIPLEY & NESTOR

[2018] FamCA 1051

FAMILY LAW – COSTS – where the parties settle on the morning of the hearing and costs sought – circumstances warrant an order.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Prantage & Prantage [2012] FamCA 661
Prantage & Prantage [2013] FamCAFC 105

APPLICANT:

Ms Ripley

RESPONDENT:

Mr Nestor

FILE NUMBER:

MLC

7837

2017

DATE DELIVERED:

4 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

4 December 2018

REPRESENTATION

SOLICITOR ADVOCATE

FOR THE APPLICANT:

Mr Horsfall

SOLICITOR FOR THE APPLICANT:

Bayside Solicitors

SOLICITOR ADVOCATE

FOR THE RESPONDENT:

Mr van der Heyden

SOLICITOR FOR THE RESPONDENT:

Tisher Liner FC Law

Orders

The applicant has leave to withdraw her application in a case filed on 21 August 2018.
The response to an application in a case filed on 22 October 2018 is struck out.
Paragraph (3) of the Orders made on 24 September 2018 is discharged.
The Applicant wife pay the Respondent husband’s costs thrown away this day, fixed in the sum of $1,500 and payable within 90 days.
The reasons this day be transcribed and when settled, placed on the Court file and made available to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ripley & Nestor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7837 of 2017

Ms Ripley

Applicant

And

Mr Nestor

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This is an application for costs made by Mr Nestor (“the husband”) arising out of an application in a case filed on 21 August 2018 by Ms Ripley (“the wife”), which was withdrawn on the morning of the hearing.
The details can be picked up from the transcript, but on any view, on 24 September 2018 the registrar considered that there was a justification for consideration of costs when she transferred the application to this list because she fixed the sum and reserved them to today. The most efficacious way to deal with that is to discharge paragraph (3) of the orders made on 24 September 2018 and to wholly deal with the issue of costs.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify departure from that principle. In other words, the first step is to decide whether or not there are some circumstances here that justify making…

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 Ripley and Nestor

Details

AGLC: Ripley and Nestor [2018] FamCA 1051
Case: [2018] FamCA 1051
Decision Date: 4 December 2018

CaseChat Overview and Summary

In the matter of Ripley and Nestor, heard before Cronin J, the applicant sought leave to withdraw her application filed on 21 August 2018. Concurrently, the respondent's response to an application filed on 22 October 2018 was struck out, and a specific paragraph from orders made on 24 September 2018 was discharged.

The court was required to determine whether to grant the applicant leave to withdraw her application and to consider the appropriate orders regarding the respondent's response and prior court orders. The matter also involved the allocation of costs.

Cronin J granted the applicant leave to withdraw her application. The court ordered that the respondent's response be struck out and discharged paragraph (3) of the previous orders. The applicant wife was ordered to pay the respondent husband's costs thrown away on that day, fixed at $1,500, payable within 90 days. The reasons for the decision were to be transcribed and made available to the parties.

Orders

Orders of the court

The applicant has leave to withdraw her application in a case filed on 21 August 2018.

The response to an application in a case filed on 22 October 2018 is struck out.

Paragraph (3) of the Orders made on 24 September 2018 is discharged.

The Applicant wife pay the Respondent husband’s costs thrown away this day, fixed in the sum of $1,500 and payable within 90 days.

The reasons this day be transcribed and when settled, placed on the Court file and made available to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

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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