SOMERS & SOMERS - [2011] FamCA 103

FAMILY COURT OF AUSTRALIA

SOMERS & SOMERS

[2011] FamCA 103

FAMILY LAW - COSTS – Circumstances justifying order

Family Law Act 1975 (Cth)

Abbott and Langton (Costs) [2011] FamCA 26
Charles and Charles [2007] FamCA 276
Child Support Registrar and Kanavos and Ors [2010] FamCAFC 244
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fitzgerald(as child representative for A(Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 FamLR 123
Fennessy and Gregorian (2009) FLC 93-399
JEL v DDF No 2 (2001) FLC 93-013
Roth v Quinn [2005] FamCA 6
Sharma and Sharma (No 2) [2007] FamCA 425
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Somers

RESPONDENT:

Ms Somers

FILE NUMBER:

MLC

2109

2009

DATE DELIVERED:

28 February 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Justice Cronin

HEARING DATE:

By way of written submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT:

Kliger Partners

SOLICITOR FOR THE RESPONDENT:

Perisic & Thomas Lawyers

Orders

That the mother pay the father’s costs of and incidental to the proceedings fixed in the sum of $60,000.

IT IS NOTED that publication of this judgment under the pseudonym Somers & Somers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2109 of 2009

Mr Somers

Applicant

And

Ms Somers

Respondent

REASONS FOR COSTS JUDGMENT

On 20 December 2010, I made final parenting orders which included provisions for parties to make submissions in the event of any application for costs.
The father filed an application for costs supported by written submissions dated 12 January 2011. I am satisfied on the material presented to me that the documents were served that same day upon the legal practitioners then acting for the mother.
It seemed common ground that the mother is an undischarged bankrupt and apparently as a matter of precaution, the solicitor for the father served upon the trustee in bankruptcy notification that an order for costs was to be sought.
No response to the father’s application was received from the mother or any person on her behalf nor was any response received from the Trustee in Bankruptcy.
The application seeks approximately $238,600 by way of an order for costs. Attached to the application were the relevant corroborating documents including the costs agreement and copies of various accounts. I am satisfied that the father has incurred the costs alleged.
The costs pursued by the father fall into three categories. The first relates to costs based upon s 117AB of the Family Law Act 1975 (Cth) (“the Act”), the second relates to indemnity costs and the third relates to costs otherwise in accordance with the Schedule to the Family Law Rules 2004. In respect of the second claim, as is required, I have seen and read the costs agreement executed between the father and his legal practitioner.
I think it is important to first deal with the application for costs pursuant to s 117AB of 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 SOMERS & SOMERS

Details

AGLC: SOMERS & SOMERS [2011] FamCA 103
Case: [2011] FamCA 103
Decision Date: 28 February 2011

CaseChat Overview and Summary

In *Somers & Somers*, the Family Court of Australia considered an application for costs following family law proceedings. The dispute concerned the financial affairs of the parties, and the court was tasked with determining the appropriate cost orders to be made.

The central legal issue before the court was whether there were circumstances justifying an order for costs against one party in favour of the other. This required the court to assess the conduct of the parties throughout the litigation and consider whether any party had acted in a manner that warranted a departure from the usual rule that parties bear their own costs.

His Honour, Cronin J, reasoned that the mother's conduct during the proceedings justified an order for costs in favour of the father. While the specific reasons for this finding are not detailed in the provided text, the decision indicates that the court applied principles of cost orders in family law matters, which often consider factors such as the reasonableness of a party's actions, the extent to which they contributed to the length or complexity of the proceedings, and the overall justice of the case.

Ultimately, the court ordered that the mother pay the father’s costs of and incidental to the proceedings, fixed in the sum of $60,000.

Orders

Orders of the court

That the mother pay the father’s costs of and incidental to the proceedings fixed in the sum of $60,000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.