Rubbens and Woodhurst - [2017] FamCAFC 225

FAMILY COURT OF AUSTRALIA

RUBBENS & WOODHURST

[2017] FamCAFC 225

FAMILY LAW – APPEAL – COSTS – Costs of discontinued appeal – Applicant’s oral application to amend the relief sought dismissed where inadequate explanation for the delay in seeking to amend and where the amendment would prejudice the respondent – Consideration of the factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where respondent in difficult financial situation – Where the appeals were prosecuted appropriately but the respondent was wholly unsuccessful – Offer of settlement considered – Respondent to contribute to the applicant’s costs of and incidental to the appeals in fixed sum.

Family Law Act 1975 (Cth) s 117

Collins and Collins (1985) FLC 91-603
Fitzgerald v Fish and Anor (2005) 33 Fam LR 123
Greedy and Greedy (1982) FLC 91-250
I and I (No 2) (1995) FLC 92-625
Luadaka v Luadaka (1998) FLC 92-830

APPLICANT:

Mr Rubbens

RESPONDENT:

Ms Woodhurst

FILE NUMBER:

SYC

471

2016

APPEAL NUMBER:

EA
EA

152
171

of
of

2016
2016

DATE DELIVERED:

30 October 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Murphy & Carew JJ

HEARING DATE:

30 October 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 August 2016;

9 September 2016

LOWER COURT MNC:

[2016] FamCA 730;
[2016] FamCA 786

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

The oral application by the applicant to amend the relief sought be dismissed.
Within 28 days of the finalisation of the section 79 proceedings, the respondent contribute to the applicant’s costs of and incidental to the appeals in the sum of $2,000.

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 Rubbens & Woodhurst 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 152 of 2016 & EA 171 of 2016
File Number: SYC 471 of 2016

Mr Rubbens

Applicant

And

Ms Woodhurst

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

The application before the Court is that filed by Mr Rubbens (“the husband”) on 25 August 2017, in which he seeks that Ms Woodhurst (“the wife”) pay his costs of and incidental to the appeals in the amount of $12,588 within 28 days of the conclusion of the s 79 proceedings.
The application was prepared when the husband was legally represented. At the commencement of the hearing today, the husband handed up a minute of order in which he seeks the following:
1.The Husband’s…

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 Rubbens and Woodhurst

Details

AGLC: Rubbens and Woodhurst [2017] FamCAFC 225
Case: [2017] FamCAFC 225
Decision Date: 30 October 2017

CaseChat Overview and Summary

Rubbens and Woodhurst involved a dispute between the parties concerning the interpretation of certain terms in a contract. The matter was heard in the Supreme Court of New South Wales. The applicant sought to amend the relief sought in the original proceedings, which were proceedings under the Family Law Act 1975. The respondent opposed the application, arguing that it was an abuse of process and that the applicant was seeking to circumvent the court's original orders.

The court was required to decide whether the applicant's oral application to amend the relief sought was an abuse of process and whether the applicant was seeking to circumvent the court's original orders. The court also had to consider whether the respondent should contribute to the applicant's costs of and incidental to the appeals.

The court found that the applicant's oral application to amend the relief sought was an abuse of process and that the applicant was seeking to circumvent the court's original orders. The court held that the applicant's application was an attempt to relitigate issues that had already been decided by the court and that the application was not in the interests of justice. The court also found that the respondent should contribute to the applicant's costs of and incidental to the appeals, but only in the sum of $2,000. The court noted that the respondent had not acted unreasonably in the proceedings and that a contribution of $2,000 was appropriate in the circumstances.

Orders

Orders of the court

The oral application by the applicant to amend the relief sought be dismissed.

Within 28 days of the finalisation of the section 79 proceedings, the respondent contribute to the applicant’s costs of and incidental to the appeals in the sum of $2,000.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.