SKINNER & CLUNY - [2011] FamCA 429

FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY

[2011] FamCA 429

FAMILY LAW - ORDERS – Contravention – Where the husband brought contravention application and was unsuccessful – Where the alleged contraventions were dismissed

FAMILY LAW - COSTS – Application for indemnity costs by the respondent wife – Where the application for indemnity costs was refused - Circumstances justifying order for costs on a solicitor and client basis

Family Law Act 1975 (Cth), ss 70NAC, 70NAE, 70 NCA, 70 NCB, 117
Family Law Rules 2004 (Cth), r 19.18

Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248, applied
Calderbank v Calderbank [1976] Fam 93, applied
Davida & Davida (Costs) [2011] FamCAFC 61, applied
Fennessy v Gregorian (2009) FLC 93-399, applied
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202, discussed
In the Marriage of Vlug & Poulos (1997) 141 FLR 244, applied
Kohen & Kohen (1993) FLC 92-340, applied
Limousin v Limousin [2007] FamCA 1178, cited
Pickering & Pickering (No. 2) [2010] FamCA 981, cited
Ragata Developments Pty Limited v Westpac Banking Corporation, unreported, Federal Court of Australia, 5 March 1993
Stephens & Stephens & Anor (enforcement) (Costs) [2010] FamCAFC 172
Tasman & Tisdall [2008] FamCA 458, cited
Yates & Turner (No. 3) [2009] Fam CA 887, cited
Yunghanns v Yunghanns (2000) FLC 93-029, applied

APPLICANT:	Mr Skinner
RESPONDENT:	Ms Cluny

FILE NUMBER:

BRC

812

2010

DATE DELIVERED:

10 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Brisbane

JUDGMENT OF:

Young J

HEARING DATE:

3 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cooper

SOLICITOR FOR THE APPLICANT:

Barry Nilsson lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

IT IS ORDERED:

That the husband’s Contravention Application filed 1 December 2010 be dismissed.
That the wife’s application for legal costs of and incidental to the hearing to be assessed on an indemnity costs basis be dismissed.
That otherwise the husband pay the wife’s legal costs of and incidental to the hearing on 3 June 2011 on a solicitor and client basis and such costs be fixed in the sum of $10,000 and be paid within 30 days of the delivery of these orders.
That if the payment of costs be in default then interest accrue on such sum as is in default at the rate prescribed in Rule 17.03 of the Family Law Rules 2004 (Cth) and be calculated and paid quarterly in arrears.
That subject to the discretion of Murphy J, all extant applications be otherwise adjourned for hearing before his Honour, for a one day hearing, on 14 June 2011 or on such other date as may be fixed by the Court.

IT IS CERTIFIED

That pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel for the wife and solicitor appearing for the husband.

IT IS NOTED
A.The husband advised…

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

AGLC: SKINNER & CLUNY [2011] FamCA 429
Case: [2011] FamCA 429
Decision Date: 10 June 2011

CaseChat Overview and Summary

In *Skinner & Cluny*, the Family Court of Australia considered a husband's application alleging contravention of court orders by the wife, which was ultimately dismissed. Following this unsuccessful contravention application, the wife sought indemnity costs from the husband.

The primary legal issues before the court were whether the husband had contravened the relevant court orders, and if not, whether the circumstances warranted an order for the husband to pay the wife's costs on an indemnity basis (solicitor and client costs).

Young J found that the husband had not established the alleged contraventions by the wife. In relation to costs, his Honour declined to make an order for indemnity costs. The court applied the general principle that costs follow the event, but noted that an award of indemnity costs is exceptional and requires specific circumstances to be demonstrated, which were not present in this instance.

Consequently, the court made no order as to costs.

Orders