Tamson and Moritz (No 2) - [2019] FamCA 799

FAMILY COURT OF AUSTRALIA

TAMSON & MORITZ (NO. 2)

[2019] FamCA 799

FAMILY LAW – COSTS – Where application for costs made by the husband – Consideration of applicable principles – Where question of indemnity costs not enlivened – Where in the circumstances no justifying circumstances to displace the general rule as to costs – Where application dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Greedy & Greedy (1982) FLC 91-250
Harris & Dewell and Anor (No.2) [2018] FamCAFC 180
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka & Luadaka (1998) FLC 92-830
Munday v Bowman(1997) FLC 92-784
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Ms Tamson

RESPONDENT:

Mr Moritz

FILE NUMBER:

PAC

3629

2017

DATE DELIVERED:

31 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 3 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rosic

SOLICITOR FOR THE APPLICANT:

Rowlandson & Co Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Campton SC with him Mr Gardiner

SOLICITOR FOR THE RESPONDENT:

Coleman Greig Lawyers

Orders

That the de facto husband’s application for costs of and incidental to the application for variation of spouse maintenance be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3629 of 2017

Ms Tamson

Applicant

And

Mr Moritz

Respondent

REASONS FOR JUDGMENT

The application for determination is an application for costs arising out of orders made 15 August 2019.
In brief, the primary application was an application by the former de facto wife to vary the terms of a spouse maintenance order made by consent on 1 September 2017. Reasons for judgment were delivered and familiarity with those reasons for judgment is assumed in the context of this determination: Tamson & Moritz [2019] FamCA 552.
Relevantly, the order made on 15 August 2019 was that the de facto wife’s application for variation of spouse maintenance be dismissed.
Subsequent to that dismissal, the respondent de facto husband made an application for an order for costs by way of written submissions filed 12…

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 Tamson and Moritz (No 2)

Details

AGLC: Tamson and Moritz (No 2) [2019] FamCA 799
Case: [2019] FamCA 799
Decision Date: 31 October 2019

CaseChat Overview and Summary

In *Tamson and Moritz (No 2)*, Foster J of the Family Court of Australia considered an application for costs made by the de facto husband. The specific dispute concerned the costs associated with an application for variation of spouse maintenance.

The central legal issue before the court was whether the de facto husband should be awarded the costs of and incidental to his application for variation of spouse maintenance.

Foster J dismissed the de facto husband's application for costs. The reasons for this decision are not detailed in the provided text, but the outcome indicates that the court found no grounds to award costs in favour of the de facto husband in relation to the spouse maintenance variation application.

Orders

Orders of the court

That the de facto husband’s application for costs of and incidental to the application for variation of spouse maintenance be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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