Wade and Wade (Costs) - [2017] FCWA 126

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WADE and WADE (COSTS) [2017] FCWA 126

CORAM: O'BRIEN J

HEARD: 16 JUNE 2017 & WRITTEN SUBMISSIONS
(FINAL SUBMISSIONS RECEIVED ON 10 JULY 2017)

DELIVERED : 29 SEPTEMBER 2017

FILE NO/S: PTW 5533 of 2015

BETWEEN: MS WADE
Applicant
AND
MR WADE
Respondent

Catchwords:

COSTS - Where the Respondent pursued parenting orders for children to return to Western Australia when the actual dispute related to child support and travel costs - Where circumstances justify an order for costs - Where costs on an indemnity basis are not justified - Contribution to costs in a fixed sum.

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms R Oakley
Respondent: Self-Represented Litigant

Solicitors:

Applicant: Bell Dixon Butler Lawyers
Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Braithwaite v Braithwaite [2007] FamCA 468
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
In the Marriage of Kohan (1993) FLC 92-340
Madin & Palis (Costs) (2016) 55 Fam LR 59
Parke & the Estate of Parke (2016) FLC 93-748
Wrenstead v Eades (2016) FLC 93-697

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Wade] (“the husband”) commenced proceedings on 4 December 2015 seeking orders that [Ms Wade] (“the wife”) return the twin children of the marriage, [Child A] and [Child B], born [in] 2004 and a daughter, [Child C], born [in] 2010, to the Perth metropolitan area. At that time, the children were living with the wife in [Coastal Town A, State A], having moved there with her from [Coastal Town B, Western Australia] on 11 November 2015.
2Those proceedings were finally concluded on 10 March 2017 when orders were made by consent and the trial, listed to commence on 1 May 2017, was vacated.
3The matter for determination is the wife’s application for an order that the husband pay the whole of her costs of the proceedings on an indemnity basis. At the first hearing of that application written submissions on behalf of the wife were handed up. I ensured that the husband was provided with a copy of the relevant sections of the legislation and he was given time within which to file written submissions in response. He filed those submissions and an affidavit on 10 July 2017.
4The parties had also agreed that unless the wife sought an opportunity to make oral submissions in response to the husband’s written submissions, the costs application could be determined in chambers on the papers. Following receipt of the husband’s written submissions, the solicitors for the wife confirmed that an opportunity for oral submissions was not sought.

Background

5The parties began living together in 1998 and were married [in] 1999. They separated in October 2014, having previously separated for a period of approximately eight months…

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 Wade and Wade (Costs)

Details

AGLC: Wade and Wade (Costs) [2017] FCWA 126
Case: [2017] FCWA 126
Decision Date: 29 SEPTEMBER 2017

CaseChat Overview and Summary

The case of Wade and Wade involved a dispute between the parties concerning the return of their children to Western Australia, though the primary issue was child support and travel costs. The matter was heard in the Family Court of Australia. The Respondent had sought parenting orders for the children's return, but the court recognised that the core dispute was not about the children's residence but rather about financial obligations and travel expenses. The Applicant sought an order for costs against the Respondent.

The court identified two main issues: whether the circumstances justified an order for the Respondent to pay costs to the Applicant, and if so, the appropriate basis and amount of those costs. The Applicant argued for costs on an indemnity basis, which would require the Respondent to cover all legal expenses incurred by the Applicant. The Respondent contended that such an order was not justified given the nature of the dispute and the limited success of the Applicant.

The court determined that the circumstances did justify an order for the Respondent to pay costs to the Applicant, but not on an indemnity basis. The court noted that while the Applicant had achieved some success in the proceedings, the Respondent's actions were not entirely without merit, and therefore, a contribution to the costs in a fixed sum was appropriate. The court awarded a specific amount as costs, reflecting the limited success of the Applicant and the need to balance the parties' financial positions. The final orders reflected this decision, requiring the Respondent to pay a specified sum towards the Applicant's costs.

Orders