Stoney and Stoney (No 2) - [2015] FamCA 148

FAMILY COURT OF AUSTRALIA

STONEY & STONEY (NO 2)

[2015] FamCA 148

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

Cooper & Oakley (No. 2) [2012] FamCAFC 187
I and I (No 2) (1995) FLC 92-625
Kohan and Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784
Prantage & Prantage (2013) 49 Fam LR 197

APPLICANT:

Ms Stoney

RESPONDENT:

Mr Stoney

FILE NUMBER:

MLC

7569

2010

DATE DELIVERED:

11 March 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT:

Adrian Abrahams

THE RESPONDENT:

In Person

Orders

That the husband pay the wife’s costs of the hearing on 22 January 2015 according to the scale set out in the Family Law Rules 2004 by agreement and failing agreement, as assessed.
That the wife’s application for the costs of the hearing before Bennett J on 3 December 2014 is dismissed.
That the wife’s application for indemnity costs is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stoney & Stoney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7569 of 2010

Ms Stoney

Applicant

And

Mr Stoney

Respondent

REASONS FOR COSTS JUDGMENT

In the Judicial Duty List on 22 January 2015, I heard an interlocutory application by Ms Stoney (the wife) for the Court to make enforcement orders against Mr Stoney (the husband). These were orders of an enforcement nature.
The substantive proceedings had commenced in 2010 and were ultimately heard and determined by Young J in April 2012. His Honour made detailed orders but for reasons which I set out, the dispute between the parties had never been finalised. There was clearly a sense of exasperation for both parties but particularly the wife.
As a costs application had been foreshadowed, I made provisions for any application and response to be by written submission. Time limits were set in the orders.
The wife filed a written submission seeking costs on 18 February 2015. In what could only be described as a pleading letter dated 11 February 2015, the husband wrote that he had been waiting to be “issued” with documents from the wife’s lawyers about costs and (as can be seen from the filing date of the wife’s submission) he had not received anything. I have inferred that the husband has received the wife’s submission because it seeks an opportunity to respond to anything he might say.
The time limit for any response from the husband expired on 9 March but as that was a public holiday, I extended the time by a further day. Nothing had been received from the husband but I propose to take into account the matters set out in his letter as his position relating to why an order for costs should not be made.
The starting point is to return to…

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: [2015] FamCA 148
Decision Date: 11 March 2015

CaseChat Overview and Summary

In *Stoney and Stoney (No 2)*, Cronin J of the Family Court of Australia considered applications for costs made by both the husband and the wife following earlier proceedings. The wife sought costs of a hearing before Bennett J on 3 December 2014 and also sought indemnity costs. The husband sought costs of a hearing on 22 January 2015.

The primary legal issues before Cronin J were whether the wife was entitled to the costs of the hearing before Bennett J, whether she was entitled to indemnity costs, and whether the husband was entitled to his costs of the hearing on 22 January 2015.

Cronin J dismissed the wife's application for the costs of the hearing before Bennett J, indicating that the circumstances did not warrant an order in her favour for that specific hearing. Similarly, the wife's application for indemnity costs was also dismissed, suggesting that the threshold for such an order, which typically requires egregious conduct or a clear case of unreasonableness, was not met. The court ordered that the husband pay the wife’s costs of the hearing on 22 January 2015, to be calculated according to the Family Law Rules 2004, either by agreement between the parties or, failing agreement, as assessed by the court.

Orders

Orders of the court

That the husband pay the wife’s costs of the hearing on 22 January 2015 according to the scale set out in the Family Law Rules 2004 by agreement and failing agreement, as assessed.

That the wife’s application for the costs of the hearing before Bennett J on 3 December 2014 is dismissed.

That the wife’s application for indemnity costs is dismissed.

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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