Symes and Glover and Anor - [2012] FMCAfam 419

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYMES & GLOVER & ANOR

[2012] FMCAfam 419

FAMILY LAW – Costs – application for costs on indemnity basis – applicant failing to prove factual basis on which application brought.

FAMILY LAW – Costs – application for costs against unsuccessful applicant for indemnity costs order – party wholly unsuccessful – party rejecting offer of settlement.

Family Law Act 1975, s.117

Symes & Glover [2011] FMCAfam 735

Applicant:

MR SYMES

First Respondent:

MS GLOVER

Second Respondent:

MS M

File Number:

PAC 1868 of 2010

Judgment of:

Halligan FM

Hearing dates:

24 November 2011, 16 March 2012

Date of Last Submission:

16 March 2012

Delivered at:

Parramatta

Delivered on:

16 March 2012

REPRESENTATION

Counsel for the Applicant:

Mr Thomas (on 24 November 2011)
In person (on 16 March 2012)

Solicitors for the Applicant:

McIntosh McPhillamy & Co

Counsel for the First Respondent:

Mr Siggins

Solicitors for the First Respondent:

Mason Mia & Associates

Counsel for the Second Respondent:

Mr Vincent

ORDERS

The father may withdraw so much of his application in a case filed on 5 October 2011 as relates to costs in relation to 20 September 2011.
The balance of the father's application in a case field on 5 October 2011 is dismissed.
The father shall pay to Ms M the sum of $5,449.50 in relation to her costs of the father’s application in a case filed on 5 October 2011 within 28 days after service on him of a sealed copy of these orders.
Note that the order for transfer of the proceedings to the Family Court of Australia made on 20 September 2011 may now be carried into effect.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 1868 of 2010

MR SYMES

Applicant

And

MS GLOVER

First Respondent

MS M

Second Respondent

REASONS FOR JUDGMENT

This is the completion of the hearing of the father’s application for costs in relation to an aspect of contested parenting proceedings between himself and the mother. The hearing of the costs application commenced before me on 24 November 2011 and was adjourned part heard until today.
Since the institution of the costs proceedings, an order has been made by Dunkley FM that upon the determination of the costs proceedings, this matter be transferred to the Family Court as a complex matter.
Determination of the costs issue is thus impeding the progress of the parenting matter and it is for that reason that I propose to give my reasons immediately ex tempore even though that may mean that my elaboration of the relevant legal principles is rather less than I would prefer it to be had I more time to reflect and to elaborate those principles.
Rather unusually, the father was represented by counsel on the first day of the costs hearing but unrepresented and acting as his own…

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: [2012] FMCAfam 419
Decision Date: 16 March 2012

CaseChat Overview and Summary

Symes and Glover involved a dispute between a father, the applicant, and the mother, the respondent, regarding the costs associated with a family law matter. The application was initially brought before the Federal Circuit and Family Court of Australia (FCFCOA) and subsequently transferred to the Family Court of Australia. The father sought an order for costs on an indemnity basis from the mother, alleging that she had failed to provide the factual basis for her claims. Additionally, he applied for costs against the mother for her unsuccessful indemnity costs order application and for rejecting a settlement offer.

The court was required to determine whether the father's application for costs on an indemnity basis was justified, given the mother's failure to provide the factual basis for her claims. The court also needed to consider the father's application for costs against the mother for her unsuccessful indemnity costs order application and her rejection of a settlement offer.

In its reasoning, the court found that the father had not substantiated his claim that the mother failed to provide the factual basis for her claims. The court noted that the mother had provided a factual basis in her submissions, albeit not in the form the father preferred. Consequently, the father's application for costs on an indemnity basis was dismissed. The court further found that the father was wholly unsuccessful in his application for costs against the mother, as he had not succeeded in his primary application for indemnity costs. Additionally, the mother's rejection of a settlement offer was not considered unreasonable given the circumstances of the case.

The court ordered that the father could withdraw part of his application relating to costs incurred on 20 September 2011, while the remaining part of his application was dismissed. The father was required to pay the mother $5,449.50 in relation to her costs of the father's application filed on 5 October 2011 within 28 days of service of the orders. The court also confirmed that the order for the transfer of the proceedings to the Family Court of Australia could now be carried into effect.

Orders

Orders of the court

The father may withdraw so much of his application in a case filed on 5 October 2011 as relates to costs in relation to 20 September 2011.

The balance of the father's application in a case field on 5 October 2011 is dismissed.

The father shall pay to Ms M the sum of $5,449.50 in relation to her costs of the father’s application in a case filed on 5 October 2011 within 28 days after service on him of a sealed copy of these orders.

Note that the order for transfer of the proceedings to the Family Court of Australia made on 20 September 2011 may now be carried into effect.

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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