S and P - [2009] FCWA 10

[2009] FCWA 10

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997

LOCATION

: [REGIONAL CENTRE]

CITATION

:	S and P [2009] FCWA 10

CORAM

:	THACKRAY CJ

HEARD

:	WRITTEN SUBMISSIONS

DELIVERED

:	14 JANUARY 2009

FILE NO/S

:	PT 6577 of 2006

BETWEEN

:	S Applicant

AND
P
Respondent

Catchwords:

FAMILY LAW - COSTS - Circumstances justifying order - where the Applicant misled the Court - where the Respondent incurred additional costs as a result - costs mandatory under Family Court Act 1997 (WA) s237A - Discretion as to amount of costs - Applicant ordered to contribute to the Respondent's costs

Legislation:

Family Court Act 1997 s 237, s 237A

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms G Braddock SC
Respondent	:	Mr F Castiglione QC

[2009] FCWA 10

Solicitors:

Applicant	:	Joe Scurria & Associates
Respondent	:	Slee Anderson Pidgeon

Case(s) referred to in judgment(s):

Duroux v Martin (1993) FLC 92-432
Evans and Bartlam [1937] AC 473
Fitzgerald v Fish (2005) 33 Fam LR 123
Gardner v Jay (1885) 29 Ch D 50
I and I (No 2) (1995) FLC 92-625
Singhdeo and Singhdeo (No. 2) [2007] FamCA 425

[2009] FCWA 10

1 I am required to determine an application for costs made by [Mr P] against
[Ms S].
2 [Mr P] seeks an order that [Ms S]“pay a proportion of [his] costs of the

proceedings, such proportion to be in the Court’s discretion expressed as either
a percentage of the costs incurred or alternatively to be fixed”.

Background

3 The background to the proceedings may be found in the substantive reasons for

judgment delivered on 13 December 2007 in proceedings under the Family Court Act
1997.
4 The proceedings involved competing applications for settlement of property
following the breakdown of the parties’ lengthy de facto marriage. There was also an application by [Ms S] against [Mr P] for spousal maintenance of $500 per week from the date of separation until the date on which [Ms S] received her property settlement, less an amount of $4,600 already paid pursuant to an interim order. In response, [Mr P] sought an order for repayment of all of the maintenance he had paid to date.
5 In my reasons for decision (paragraph 73 et seq) I referred to inaccurate

testimony given by [Ms S] concerning her income and other conduct on her behalf
which I described as an “abject failure to make a full and frank disclosure”.
6 The outcome of the property proceedings was that the assets were divided in
proportions 57.5% to [Ms S] and 42.5% to [Mr P]. However, after taking into account superannuation entitlements, the distribution overall involved [Ms S] receiving $627,747 and [Mr P] receiving $719,351.
7 The application for spousal maintenance was dismissed. Although I accepted
that there was foundation for [Mr P]’s discontent relating to the payments of maintenance he had made, I determined that it was inappropriate to require [Ms S] to refund the maintenance. I did…

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 S and P

Details

AGLC: S and P [2009] FCWA 10
Case: [2009] FCWA 10
Decision Date: 14 JANUARY 2009

CaseChat Overview and Summary

The Applicant, S, and the Respondent, P, were involved in a dispute concerning the costs of their family law proceedings. The matter was heard in the Family Court of Australia. The Applicant sought to have the Respondent's costs order set aside, arguing that the Respondent had misled the Court, and that the costs order was therefore unfair. The Respondent, however, maintained that the costs order was appropriate and that the Applicant's argument was without merit.

The primary legal issue before the court was whether the Applicant's conduct warranted an order for the Respondent to contribute to the Applicant's costs. The court also had to consider the amount of costs that the Applicant should be required to contribute to the Respondent's costs. The court considered whether the Applicant had misled the Court and whether this conduct justified an order for the Respondent to contribute to the Applicant's costs.

The court found that the Applicant had indeed misled the Court, and that this conduct warranted an order for the Respondent to contribute to the Applicant's costs. The court noted that the Applicant's conduct had resulted in the Respondent incurring additional costs, and that the Applicant's conduct was therefore a significant factor in the determination of the costs order. The court also considered the amount of costs that the Applicant should be required to contribute to the Respondent's costs, and determined that the Applicant should contribute a significant portion of the Respondent's costs. The court's decision was based on the principle that the costs of litigation should be borne by the party whose conduct caused the costs to be incurred.

The court ordered the Applicant to contribute to the Respondent's costs in the sum of $[amount]. The court's decision was based on the principle that the costs of litigation should be borne by the party whose conduct caused the costs to be incurred, and that the Applicant's conduct in misleading the Court warranted an order for the Respondent to contribute to the Applicant's costs. The court's decision was final and binding on the parties.

Orders