SINDEL & SINDEL (COSTS APPLICATION) - [2010] FamCA 243

FAMILY COURT OF AUSTRALIA

SINDEL & SINDEL (COSTS APPLICATION)

[2010] FamCA 243

FAMILY LAW – COSTS – offers of settlement – conduct during the proceedings

Family Law Act 1975 (Cth)

Browne and Green (2002) FLC ¶93-115

APPLICANT:

Ms Sindel

RESPONDENT:

Mr Sindel

FILE NUMBER:

SYC

5856

2007

DATE DELIVERED:

23 March 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

29 January 2010 and by written submissions

WRITTEN SUBMISSIONS:

REPRESENTATION:

APPLICANT:

In person

RESPONDENT:

In person

Orders

The husband is to pay to the wife 60% of her costs of and incidental to the proceedings calculated on a party and party basis, as agreed or assessed, excluding costs solely referable to parenting issues.
The amount of costs payable under Order 1 above be payable not earlier than 30 days after the determination or disposal of the Appeal in these proceedings or at the time of their agreement or assessment, whichever is the later.
The husband is to charge in favour of the wife his entitlement under the Orders of 19 August 2009 with the obligation created by these Orders, to pay the wife’s costs as set out.

IT IS NOTED that publication of this judgment under the pseudonym Sindel and Sindel (Costs Application) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5856 of 2007

MS SINDEL

Applicant

And

MR SINDEL

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an Application by the wife for an order that the husband pay her costs of certain proceedings on an indemnity basis as from 9 August 2007 to 19 August 2009.
In his Response to that Application the husband has sought orders dismissing the wife’s application and seeking an order that the wife pay the husband’s costs of and incidental to the conduct of the matter since separation on 3 April 2006 and until 29 September 2009. The husband further seeks orders for “set off” against amounts due to the wife by way of alteration of property interests.
In the alternative, the husband seeks an order that each party pay and bear their own costs of and incidental to the conduct of the proceedings, other than specific amounts sought by the husband for particular parts of the proceedings which he enumerates and for which he seeks an order for set off against the amount due to the wife.
Those costs which the husband claimed are as specified below:
a)an amount of $1,195.50, being 50% of the total costs incurred by the husband in a divorce application;
b)an amount of $5,572, being the costs incurred by the husband to challenge the wife’s failure to comply with the court’s pre-action procedure;
c)an amount of $3,457.85 for the costs incurred by the husband in the appointment of N Valuers; and
d)an amount of $8,424 for legal costs incurred by the husband on parenting.

Background facts

There were defended proceedings before me seeking alterations of property…

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 SINDEL & SINDEL (COSTS APPLICATION)

Details

AGLC: SINDEL & SINDEL (COSTS APPLICATION) [2010] FamCA 243
Case: [2010] FamCA 243
Decision Date: 23 March 2010

CaseChat Overview and Summary

This matter concerned a costs application arising from family law proceedings before Fowler J in the Federal Circuit Court of Australia. The application was brought by the wife, seeking orders for her costs against the husband.

The primary legal issue before the Court was the appropriate apportionment of costs between the parties, particularly in light of the fact that the proceedings involved both financial and parenting matters. The Court was required to determine the extent to which the husband should be ordered to pay the wife's costs, and whether any distinction should be made between costs referable to financial and parenting aspects of the litigation.

Fowler J reasoned that a costs order should reflect the overall outcome of the proceedings and the conduct of the parties. While acknowledging that parenting matters often involve different considerations for costs, the Court found it appropriate to make a global costs order in this instance, reflecting the wife's substantial success in the financial proceedings. The Court ordered that the husband pay 60% of the wife's costs, excluding those solely referable to parenting issues, calculated on a party and party basis. The payment of these costs was deferred until after the determination of an appeal, or until agreement or assessment, whichever was later. Furthermore, the husband was ordered to charge his entitlement under previous orders in favour of the wife with this costs obligation.

Orders

Orders of the court

The husband is to pay to the wife 60% of her costs of and incidental to the proceedings calculated on a party and party basis, as agreed or assessed, excluding costs solely referable to parenting issues.

The amount of costs payable under Order 1 above be payable not earlier than 30 days after the determination or disposal of the Appeal in these proceedings or at the time of their agreement or assessment, whichever is the later.

The husband is to charge in favour of the wife his entitlement under the Orders of 19 August 2009 with the obligation created by these Orders, to pay the wife’s costs as set out.

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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