Strahan and Strahan (No. 4) - [2009] FamCA 763

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 4)

[2009] FamCA 763

FAMILY LAW – COSTS – application by the husband seeking costs – where various interim financial and interim parenting issues had been listed for hearing – where the wife was wholly unsuccessful in an application seeking a stay of the proceedings pending determination of an appeal – where the wife sought an adjournment due to her lack of funds – where an adjournment was granted with respect to the financial issues only – where consideration of interim children’s issues proceeded – where the wife had recently filed an affidavit in preparation for the hearing – where the wife only advised the husband of her position late on the day before the hearing – where the wife was aware that she had insufficient funds to prepare for the hearing for some time but failed to advise the Court or the husband – where the husband had prepared the case for hearing – where an order for costs is justified – whether costs to be awarded on an indemnity basis – order for the wife to pay costs on an indemnity basis – costs to be paid from the wife’s final property settlement

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Schedule 6, clause 6.20

Colgate- Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Kohan and Kohan (1993) FLC 92-340
ZH and N [2005] FamCA 828
Yunghanns and Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

INDEPENDENT CHILDREN’S LAWYER:

Ann Bills

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

9 April 2009

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

9 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms D Pederick

SOLICITOR FOR THE APPLICANT:

Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr N Ackman QC

SOLICITOR FOR THE RESPONDENT:

Robinson & Mason

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mrs V West

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ann Bills & Associates

Orders

That the wife pay to the trust account of the solicitors for the husband the sum of FORTY-FIVE THOUSAND DOLLARS [$45,000.00] by way of costs, such amount to be paid upon final resolution of the wife’s application for property settlement in the first instance.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

EX TEMPORE REASONS

I have before me an application for costs by the husband.
This matter was originally set for two days, yesterday and today, and there were a number of applications which were listed for hearing. I will not repeat all that happened yesterday, but briefly, an application to adjourn all applications was made by the wife, and in the end result I acceded to that application insofar as it related to what I categorised as financial matters that the wife herself was…

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 Strahan and Strahan (No. 4)

Details

AGLC: Strahan and Strahan (No. 4) [2009] FamCA 763
Case: [2009] FamCA 763
Decision Date: 9 April 2009

CaseChat Overview and Summary

In *Strahan and Strahan (No. 4)*, Strickland J of the Family Court of Australia considered an application for costs made by the husband. The wife had made an application for property settlement, and the husband sought an order for costs against her in relation to that application.

The primary legal issue before the court was whether the wife should be ordered to pay the husband's costs, and if so, in what amount and upon what terms. This involved an assessment of the conduct of the parties in the proceedings and the overall justice of the case in relation to costs.

Strickland J ordered the wife to pay the sum of $45,000.00 towards the husband's costs. This payment was to be made to the trust account of the husband's solicitors and was contingent upon the final resolution of the wife's application for property settlement.

Orders

Orders of the court

That the wife pay to the trust account of the solicitors for the husband the sum of FORTY-FIVE THOUSAND DOLLARS [$45,000.00] by way of costs, such amount to be paid upon final resolution of the wife’s application for property settlement in the first instance.

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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