Turner & Alexander (No 2) - [2014] FamCA 334

FAMILY COURT OF AUSTRALIA

TURNER & ALEXANDER (NO. 2)

[2014] FamCA 334

FAMILY LAW – COSTS – Where the father seeks fixed costs of and incidental to the trial or in the alternative as assessed – where the father does not seek the entirety of his costs – consideration of the factors in s 117(2A) – consideration of costs in parenting matters – where the mother was wholly unsuccessful – the mother’s conduct of the proceedings considered – consideration of the quantum of costs – costs order made for sum less than that sought by the father.

Family Law Act 1975 (Cth) s 117

Green & Knowles (No. 2) [2009] FamCA 541
I and I (No 2) (1995) FLC 92-625

APPLICANT:

Mr Turner

RESPONDENT:

Ms Alexander

FILE NUMBER:

MLC

7872

2007

DATE DELIVERED:

22 May 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATES:

By way of written submissions

SUBMISSIONS RECEIVED FROM

COUNSEL FOR THE APPLICANT:

Mr Werner

SOLICITOR FOR THE APPLICANT:

Hutchinson Legal

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

N/A

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Alexander(No. 2) 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 7872 of 2007

Mr Turner

Applicant

AND

Ms Alexander

Respondent

REASONS FOR JUDGMENT

On 8 January 2014 I delivered reasons for judgment and made final parenting orders, including orders that the father have sole parental responsibility for the children of the marriage R and S, that the children live with the father, and that as from 14 March 2014 the children spend time and communicate with the mother on the second and fourth weekend of each month from 6 pm on Friday until 6 pm on Sunday. All extant applications were otherwise dismissed save and except for any application for costs.
On 24 January 2014 I made orders in Chambers that on or before 4 pm on 7 February 2014 the parties file and serve upon the other parties any applications for costs and written submissions in support of such applications and that the parties file and serve any responses to any submissions filed in support of any application for costs by 4 pm on 21 February 2014.
On 28 January 2014 I made further orders in Chambers at the mother’s request extending the time for her to file and serve any response to any submissions filed by the father in support of his application for costs to 4.00 pm on 14 March 2014 on the basis that she would be overseas between 2 February 2014 and 28 February 2014.
On 10 February 2014 the Court received a letter from the Independent Children’s Lawyer advising that he would not be making any application for costs and, accordingly, the Independent Children’s Lawyer has not filed any written submissions or any submissions in reply.
The father seeks…

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 Turner & Alexander (No 2)

Details

AGLC: Turner & Alexander (No 2) [2014] FamCA 334
Case: [2014] FamCA 334
Decision Date

CaseChat Overview and Summary

In *Turner & Alexander (No 2)*, the Family Court of Australia considered an application by the father for fixed costs of $44,587.35, or alternatively, costs to be assessed, arising from parenting proceedings. The mother opposed the application. The court had previously made final parenting orders, granting the father sole parental responsibility for the children, with the children to live with him and have limited time with the mother. The primary dispute before the court concerned the father's application for costs.

The central legal issue was whether the circumstances of the case justified an order for costs against the mother, and if so, what the quantum of that order should be. The court was required to consider the factors outlined in section 117(2A) of the *Family Law Act 1975* (Cth), including the financial circumstances of the parties, the conduct of the proceedings, whether a party was wholly unsuccessful, and any offers to settle. The court also had to determine if the general rule that parties bear their own costs should be departed from in this parenting matter.

The court found that while the parties' financial circumstances did not preclude an order for costs, they were relevant to determining the quantum. Crucially, the court noted significant adverse findings regarding the mother's credit and the untruthful nature of her and her husband's evidence, which contributed to the protracted nature of the proceedings. The mother was found to be wholly unsuccessful on the primary issues of the children's living arrangements and contact with her husband, a registered sex offender. The court also considered the mother's failure to disclose her husband's criminal history and her minimisation of the offences, as well as her conduct in prioritising her relationship with her husband over her child's wishes. These factors, particularly the mother's conduct and her lack of success, justified departing from the usual costs rule.

The court ordered the mother to pay the father's costs, but not in the full amount sought. The court determined that while the mother's conduct warranted a costs order, the quantum should be less than the father's fixed costs application, indicating a partial success for the father in his costs claim.

Orders