Shirley and Moore - [2020] FamCA 220

FAMILY COURT OF AUSTRALIA

SHIRLEY & MOORE

[2020] FamCA 220

FAMILY LAW – COSTS – where the Court is persuaded that the circumstances justify the making of an order for costs but is not persuaded that it is just to make an order for costs on an indemnity basis – where costs are ordered in a fixed amount.

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

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D (Costs) (No 2) (2010) FLC 93-435
In the Marriage of Kohan (1993) FLC 92-340
Limousin v Limousin (Costs) (2008) 38 Fam LR 478

Rice v Asplund (1979) FLC 90-725

Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Shirley

RESPONDENT:

Ms Moore

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

PAC

3139

213

DATE DELIVERED:

8 April 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

Determined in Chambers following the receipt of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

By way of written submissions dated 21 February 2020 and by way of written submissions in reply filed 6 March 2020

THE RESPONDENT:

Fallu McMillan Lawyers – By way of written submissions in response filed 28 February 2020

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland by correspondence dated 11 February 2020

Orders

IT IS ORDERED THAT

The Respondent pay the Applicant’s costs of and incidental to the Initiating Application filed 7 August 2019, with such costs to be fixed in the amount of $3,500.00 and to be paid by 8 December 2020.

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 Shirley & Moore 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: PAC 3139 of 213

Mr Shirley

Applicant

And

Ms Moore

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By Application in a Case filed 21 February 2020, Mr Shirley seeks an order that Ms Moore pay his costs of and incidental to the Initiating Application she filed on 7 August 2019 (the August Initiating Application) and that such order for costs be made on an indemnity basis.[1] The amount sought on an indemnity basis is $9,620.50. He also seeks that Ms Moore be ordered to pay the same within 14 days of the date of the order.
[1] See: written submissions dated 21 February 2020 (and filed 21 February 2020) and written submission in reply filed 6 March 2020.
Mr Shirley’s application follows the Order made on 7 February 2020, by which the…

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 Shirley and Moore

Details

AGLC: Shirley and Moore [2020] FamCA 220
Case: [2020] FamCA 220
Decision Date: 8 April 2020

CaseChat Overview and Summary

In the matter of Shirley and Moore, Hogan J of the Federal Court of Australia considered an application concerning costs. The specific nature of the dispute that led to the initiating application filed on 7 August 2019 is not detailed in the provided text, but the proceedings culminated in an order regarding the payment of costs by the respondent to the applicant.

The central legal issue before Hogan J was the determination of the quantum and payment terms for the costs associated with the initiating application. The court was required to fix a specific monetary amount for these costs and establish a deadline for their payment.

Hogan J ordered that the respondent pay the applicant's costs of and incidental to the initiating application. These costs were fixed at $3,500.00 and were to be paid by 8 December 2020. The court noted that the final form of this order was contingent upon its entry into the Court's records.

Orders

Orders of the court

IT IS ORDERED THAT

The Respondent pay the Applicant’s costs of and incidental to the Initiating Application filed 7 August 2019, with such costs to be fixed in the amount of $3,500.00 and to be paid by 8 December 2020.

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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