Thomas and George - [2011] FamCA 557

FAMILY COURT OF AUSTRALIA

THOMAS & GEORGE

[2011] FamCA 557

FAMILY LAW - COSTS – Interim costs of contravention application later withdrawn - Circumstances justifying order – Written offer made – Financial circumstances of the parties

Family Law Act 1975 (Cth)

APPLICANT:

Ms Thomas

RESPONDENT:

Mr George

FILE NUMBER:

SYC

8066

2010

DATE DELIVERED:

15 July 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

27 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Segel

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

Orders

The wife is to pay the husband’s costs of the contravention application filed by her on 6 April 2011 on a lawyer and client basis. Such costs to be as agreed or alternatively as assessed.
In the assessment and/or settling of the amount to be paid, the husband will be entitled to claim one half of the legal costs incurred by him of attendance at the Court on 27 June 2011.
The payment of the order is to be made by the wife to the husband within 21 days of the date of final property orders being made in this matter.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8066/2010

Ms Thomas

Applicant

And

Mr George

Respondent

REASONS FOR JUDGMENT

Before the Court is an application by the respondent husband for the applicant wife to pay his costs of, and incidental to, a contravention application filed by the wife on 6 April 2011. The costs application is opposed by the wife.
On 6 April 2011 the wife filed a contravention application alleging three breaches of consent orders made on 12 January 2011. The alleged breaches are as follows.
The first allegation is that “the respondent without reasonable excuse has failed to comply with order 2 and is interfering with the wife’s occupation of the former matrimonial home, [F Street, Sydney Suburb 1] in that he is refusing to maintain insurance for the property.” Order 2 made on 12 January 2011 is in the following terms “that pending further order, the husband shall take no step nor do anything to interfere with the wife’s occupation of the former matrimonial home [F Street, Sydney Suburb 1].”
Secondly, it is alleged the husband breached order 8 made on 12 January 2011. The allegation is that “in breach of order 8 between 4 January and 26 January 2011 the respondent without reasonable excuse changed the beneficiaries listed under the [N] insurance policy from the applicant to his parents.” Order 8 of 12 January 2011 is as follows “that pending further order the husband shall be restrained from dealing with the [N] insurance policy in his name.”
Finally, it is alleged the husband breached order 11 made on 12 January 2011. The allegation is that “In breach of order…

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 Thomas and George

Details

AGLC: Thomas and George [2011] FamCA 557
Case: [2011] FamCA 557
Decision Date: 15 July 2011

CaseChat Overview and Summary

In the matter of *Thomas and George*, heard before Le Poer Trench J, the dispute concerned a contravention application filed by the wife against the husband. The specific nature of the contravention was not detailed in the provided text, but the court was required to make orders regarding costs associated with this application.

The central legal issue before the court was the determination of costs payable by the wife to the husband in relation to the contravention application. The court was also required to specify the basis upon which these costs should be assessed and the timeframe for their payment.

Le Poer Trench J ordered that the wife pay the husband's costs of the contravention application on a lawyer and client basis. This indicates a higher level of cost recovery than standard party-party costs. The court further stipulated that in the assessment or settlement of these costs, the husband would be entitled to claim one half of the legal costs incurred for his attendance at court on 27 June 2011. The payment of these costs was to be made by the wife to the husband within 21 days of the final property orders being made in the proceedings.

Orders

Orders of the court

The wife is to pay the husband’s costs of the contravention application filed by her on 6 April 2011 on a lawyer and client basis. Such costs to be as agreed or alternatively as assessed.

In the assessment and/or settling of the amount to be paid, the husband will be entitled to claim one half of the legal costs incurred by him of attendance at the Court on 27 June 2011.

The payment of the order is to be made by the wife to the husband within 21 days of the date of final property orders being made in this matter.

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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