Shnell & Frey (No 2) - [2020] FamCA 846

FAMILY COURT OF AUSTRALIA

SHNELL & FREY (NO. 2)

[2020] FamCA 846

FAMILY LAW – PRACTICE AND PROCEDURE – Application for a stay – Where the wife makes an application for a stay of the hearing of an application for costs brought by the husband where he seeks his costs of and incidental to final property proceedings – Application dismissed.

FAMILY LAW – COSTS – Where the husband seeks costs incurred in responding to the wife’s application for a stay of the hearing of the application for costs – Where the wife was wholly unsuccessful – Where the wife is to pay costs fixed in the sum of $1,000.

Family Law Rules 2004 (Cth)

APPLICANT:

Ms Shnell

RESPONDENT:

Mr Frey

FILE NUMBER:

SYC

1057

2017

DATE DELIVERED:

25 September 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

25 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hill

SOLICITOR FOR THE APPLICANT:

Etheringtons Solicitors

SOLICITOR FOR THE RESPONDENT:

Tilley Family Law & Mediation

Order

The wife’s Response to an Application in a case filed 8 September 2020, which made application for a stay of the hearing of the husband’s application for costs, is dismissed.
The wife is to pay the husband’s costs of and incidental to her application for a stay fixed in the sum of $1,000.
The time for the wife to file material in response to the husband’s application for costs is extended to 21 days from today.
The time for the wife to file written submissions is extended to 21 days from today.
The husband is at liberty to file any further written submissions in response to any evidence filed by the wife within 28 days from today.

NOTATION

Both parties were content for the husband’s application for costs filed 31 August 2020 to be determined in chambers without further appearance.

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 Shnell & Frey 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: SYC 1057 of 2017

Ms Shnell

Applicant

And

Mr Frey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before me today is one filed by the wife to effectively adjourn the hearing of an application for costs by the husband which was filed on 31 August 2020 until the determination of her appeal.
The background to this matter is that I heard final property proceedings and made a final property order on 4 August 2020. On 31 August 2020, the wife filed…

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.

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Details

Case: [2020] FamCA 846
Decision Date: 25 September 2020

CaseChat Overview and Summary

In *Shnell & Frey (No 2)*, the wife applied to the Federal Circuit and Family Court of Australia for a stay of the hearing of the husband's application for costs. The husband sought his costs of and incidental to final property proceedings.

The primary legal issue before Carew J was whether the wife's application for a stay of the costs hearing should be granted. A secondary issue arose concerning the husband's costs incurred in responding to the wife's stay application, given the wife's ultimate lack of success.

Carew J dismissed the wife's application for a stay. The court reasoned that there was no basis to grant a stay of the costs hearing, particularly as the wife had been wholly unsuccessful in her application. Consequently, the wife was ordered to pay the husband's costs of the stay application, which were fixed at $1,000.

Orders