Stephens v Stephens

Case [2010] FamCAFC 172


Family Court Of Australia

STEPHENS & STEPHENS AND ANOR (Enforcement) (Costs) [2010] FamCAFC 172

FAMILY LAW - COSTS – Application on behalf of the Wife that the Husband pay the costs of the appeal – Consideration of the Husband’s financial circumstances and conduct during the proceedings – Significant weight given to the appeal being wholly unsuccessful – Where the Husband has failed to comply with previous orders of the court – Justifying circumstances established – Appellant to pay the Respondent’s costs

FAMILY LAW - INDEMNITY COSTS – Where the Wife seeks an order for indemnity costs – Where the Court is not satisfied that the Husband’s appeal and his defence of the Wife’s appeal was hopeless and did not give rise to any “arguable factual and legal questions” – Application for indemnity costs dismissed 

Botany Municipal Council v Secretary, Department of Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412
Brott and Joachim (2006) FLC 93-259
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
I and I (No 2) (1995) FLC 92-625
Ian Charles Fowell Spry in his Personal Capacity and in his Capacity as Trustee of the ICF Spry Trust v Moylan and Ors [2010] HCATrans 195
Kohan and Kohan (1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
Limousin v Limousin (Costs) (2007) 38 Fam LR 478
McAlpin and McAlpin (1993) FLC 92-411
McDonald and McDonald (1994) FLC 92-508
Munday v Bowman (1997) FLC 92-784
NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77
Penfold v Penfold (1980) 144 CLR 311
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143
Stephens v Stephens (2010) 43 Fam LR 106
Stephens & Stephens (Stay Application) (2010) FLC 93-429
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029
Family Law Act 1975 (Cth) – s 70NFB(1), s 79, s 106B, s 117, s 117(2A), s 117AA, s 117AB, s 117AC, s 117B, s 118
Family Law Rules 2004 (Cth) – r 19.08, r 19.11, r 19.18, r 19.19
APPELLANT: MR STEPHENS
FIRST RESPONDENT: MS STEPHENS
SECOND RESPONDENT: MR STEPHENS (as Trustee of the Stephens Trust)
FILE NUMBER: MLC 788 of 2009
APPEAL NUMBER: SA
SA
23
24
of
of
2009
2009
DATE DELIVERED: 9 September 2010
PLACE DELIVERED: Sydney
PLACE HEARD: By way of written submissions
JUDGMENT OF: May, Boland & O’Ryan JJ
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 10 March 2009
LOWER COURT MNC: [2009] FamCA 156

Representation

THE APPELLANT: In Person 
SOLICITOR FOR THE APPELLANT: Nedovic & Co.
COUNSEL FOR THE FIRST RESPONDENT: Mr N. J. Ackman SC with
Ms K.M. MacMillan SC

SOLICITOR FOR THE FIRST

RESPONDENT:

Kennedy Wisewoulds Lawyers

Orders

  1. The Husband pay the Wife’s costs…

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Details
AGLC
Stephens v Stephens [2010] FamCAFC 172
Case
[2010] FamCAFC 172
Decision Date

CaseChat Overview and Summary

In Stephens v Stephens, the wife brought an application for the husband to pay her costs associated with the appeal and various other related applications. The case involved numerous applications and appeals, including applications for leave to appeal, extensions of time, and applications to adduce further evidence. The wife also filed a cross appeal. The court considered the husband's financial circumstances and his conduct during the proceedings, ultimately finding that the appeal was wholly unsuccessful and that the husband had failed to comply with previous court orders. The court granted the wife's application for costs, ordering the husband to pay the wife's costs of the appeal, cross appeal, and related applications.

The court also considered the wife's application for indemnity costs. Indemnity costs are awarded where the opposing party's appeal or defence was hopeless and did not give rise to any arguable factual or legal questions. The court found that the husband's appeal and defence of the wife's appeal did not meet this threshold, and the application for indemnity costs was dismissed.

The court ordered the husband to pay the wife's costs of the appeal, cross appeal, and related applications, with the costs to be assessed on a party and party basis. The court also noted that any funds retained by the husband's legal representatives could be applied towards satisfaction of the husband's obligations under the order. The wife's application for indemnity costs was dismissed.

This case highlights the importance of financial circumstances and conduct during proceedings in determining costs orders in family law cases. The court found that the husband's unsuccessful appeal and non-compliance with previous orders justified an order for costs, but the wife's application for indemnity costs was dismissed as the husband's appeal and defence did not meet the threshold for such an order.

Orders

Orders of the court

1.

The Husband pay the Wife’s costs of and incidental to:

(a) the Husband’s notice of appeal filed on 27 March 2009;

(b) the Husband’s application for a stay filed on 27 March 2009;

(c) the Husband’s application filed on 27 March 2009 to extend time to file an application for leave to appeal against the orders of Watts J made on 1 February 2009, and to extend time to file an application for leave to appeal against the orders of Cronin J made on 2 February 2009;

(d) the Husband’s application to adduce further evidence filed on 30 March 2009;

(e) the Husband’s application to adduce further evidence filed on 9 November 2009;

(f) the Husband’s oral application made on 4 December 2009 seeking to reopen the hearing of the appeal;

(g) the Wife’s cross appeal filed on 9 April 2009; and

(h) the Wife’s application to adduce further evidence filed on 21 May 2009.

2.

The Husband pay the Wife’s costs of the submissions prepared and filed on 21 January 2010 and 19 March 2010 in relation to costs.

3.

The costs in orders (1) and (2) hereof be assessed on a party and party basis.

4.

To the extent that there are sufficient funds still retained by Kennedy Wisewoulds Lawyers as stakeholders, such funds may be applied towards satisfaction of the obligations of the Husband pursuant to orders (1) and (2) hereof.

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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