FAMILY LAW – COSTS - Parenting and property – costs dealt with by consent by written submissions after delivery of final judgment – Wife seeks Husband pay her costs of the financial proceedings only with no account of the parenting aspect of the litigation – fraudulent and misleading conduct by the Husband established at trial – significant additional costs incurred due to obfuscation and evasion of Husband – lack of disclosure by the Husband and his solicitor – offer of settlement not responded to by Husband – costs sought on alternative bases for either fixed sum of $200,000 or indemnity basis as agreed or taxed – Wife represented on deferred fee basis – Husband ordered to pay costs
Solicitor/Advocate as the Independent Children’s Lawyer
Mary Burgess
ORDERS
CAC 103 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR TYRELL Applicant
AND:
MS TYRELL First Respondent
MS B TYRELL Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
2 NOVEMBER 2022
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Pursuant to Section 117(2) of the Family Law Act 1975 (Cth), the Applicant pay the First Respondent’s costs of, and incidental to, the financial proceedings, fixed in the sum of $155,000.00, being $125,000.00 for solicitor’s costs and $30,000 for Counsel’s fees by no later than 31st January 2023.
2.In the absence of any Application by the Applicant or his lawyer within 14 days, being by 16 November 2022, pursuant to Order 28 of the Orders dated 14 September 2022 in relation to the “Mr F” issue detailed in the principal judgment, the Applicant and his lawyer must jointly pay the First Respondent the sum of $8,500.00 by 20th December 2022.
AND THE COURT NOTES THAT:
A.If the Applicant and the Second Respondent apportion these costs between them, the Applicant is to pay two-thirds and the Second Respondent pay one-third.
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
AGLC
Tyrell & Tyrell (No 2) [2022] FedCFamC2F 1466
Case
[2022] FedCFamC2F 1466
Decision Date
CaseChat Overview and Summary
Tyrell & Tyrell (No 2) was a family law case before the Federal Circuit and Family Court of Australia. The proceedings concerned parenting and property matters. The Court had already determined orders relating to parenting and property matters, and the remaining issue was the question of costs. The Wife sought an order that the Husband pay her costs of the financial proceedings. The Wife sought her costs on an indemnity basis, or in the alternative, a fixed sum of $200,000 or assessed on a solicitor/client basis. The Husband submitted that each party should bear their own costs, and that the Wife's costs were excessive and disproportionate. The paternal Grandmother also submitted that the Wife's costs were excessive and disproportionate. The Court accepted the submissions of the Wife and ordered that the Husband pay the Wife's costs of the financial proceedings. The Court considered that the Husband's fraudulent and misleading conduct, lack of disclosure, and evasiveness warranted a costs order in the Wife's favour. The Court found that the Wife was largely successful in the proceedings, and ordered that the Husband pay $155,000 in respect of the Wife's costs. The Court also made an order that the Husband pay $8,500 in respect of costs relating to the late disclosure of certain documents.