Rivers and Rivers (No 2) - [2017] FamCA 41

FAMILY COURT OF AUSTRALIA

RIVERS & RIVERS (NO 2)

[2017] FamCA 41

FAMILY LAW – COSTS – Where the Respondent seeks payment of his costs on an indemnity basis – Applicant pay the Respondent’s costs on a party/party basis.

Family Law Act 1975 (Cth)
Family Law Rules 2004

Colgate-Palmolive Company & Cussons (1993) 46 FCR 225
D & D (Costs) No 2 (2010) FLC 93-435
Kohan & Kohan (1993) FLC 92-340
Limousin & Limousin [2008] FamCA 315
Yunghanns & Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Rivers

RESPONDENT:

Mr Rivers

FILE NUMBER:

BRC

6267

2014

DATE DELIVERED:

24 January 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

23 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Linklater-Steel

SOLICITOR FOR THE APPLICANT:

Barry.Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Orders

IT IS ORDERED THAT

The Applicant pay the Respondent’s costs of and incidental to the Application – Contravention filed 4 January 2017 and the Application in a Case filed 4 January 2017 and that:
(a)such costs to be paid on a party/party basis in an amount as agreed between the parties or, failing agreement, as assessed on a party/party basis; and
(b)such costs, in the amount agreed or as assessed, be paid by the Applicant to the Respondent by 4.00 pm on 1 August 2017.

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 Rivers & Rivers (No 2) 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 BRISBANE

FILE NUMBER: BRC 6267 of 2014

Ms Rivers

Applicant

And

Mr Rivers

Respondent

REASONS FOR JUDGMENT

Yesterday, Counsel for the Respondent applied for an order that the Applicant pay his costs of and incidental to the Application for Contravention, filed 4 January 2017, and the Application in a Case also filed on 4 January 2017. That application came after orders were made dismissing each of those Applications.
Section 117(1) of the Family Law Act 1975 (Cth) provides that, subject to ss (2) and other particularised sections of the Family Law Act 1975 (Cth) that are not relevant to the determination of this Application, “each party to proceedings under the Act shall bear their own costs”.
Subsection (2) of s 117 provides that, if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to ss (2A) relevantly, and the applicable Rules of Court, make such order as to costs as the Court considers just.

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 Rivers and Rivers (No 2)

Details

AGLC: Rivers and Rivers (No 2) [2017] FamCA 41
Case: [2017] FamCA 41
Decision Date: 24 January 2017

CaseChat Overview and Summary

In *Rivers and Rivers (No 2)*, Hogan J of the Family Court of Australia considered an application by the Applicant for costs following earlier proceedings concerning contravention and an application in a case. The Respondent sought to recover their costs associated with these applications.

The central legal issue before the court was the determination of the appropriate costs order to be made in favour of the Respondent, specifically whether these costs should be paid on a party/party basis and the timeframe for such payment.

Hogan J ordered that the Applicant pay the Respondent’s costs of and incidental to the Application – Contravention filed on 4 January 2017 and the Application in a Case filed on the same date. These costs were to be paid on a party/party basis, either as agreed between the parties or, failing agreement, as assessed by the court. The Applicant was directed to pay the agreed or assessed costs to the Respondent by 4:00 pm on 1 August 2017.

Orders

Orders of the court

IT IS ORDERED THAT

The Applicant pay the Respondent’s costs of and incidental to the Application – Contravention filed 4 January 2017 and the Application in a Case filed 4 January 2017 and that:

(a) such costs to be paid on a party/party basis in an amount as agreed between the parties or, failing agreement, as assessed on a party/party basis; and

(b) such costs, in the amount agreed or as assessed, be paid by the Applicant to the Respondent by 4.00 pm on 1 August 2017.

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

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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