WAKELEY & WAKELEY (No.2) - [2020] FCCA 652

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAKELEY & WAKELEY (No.2)

[2020] FCCA 652

Catchwords:
FAMILY LAW – Costs – offer of settlement by Husband – not accepted by Wife – parties conduct – late disclosure – no failure to comply with previous orders – no circumstances that would justify costs order.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Penfold v Penfold (1980) 144 CLR 311
Browne v Green [2002] FamCA 791
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) &
TRF & LKL (2005) 33 Fam LR 123
D & D (Costs) (No 2) (2010) FLC 93-435
COG15 and Child Support Registrar [2016] FamCAFC 272
Kent & Kent (No 4) [2017] FamCA 1053
Orchide & Orchide [2018] FamCAFC 58

Northern Territory of Australia v Sangare [2019] HCA 25

Trevi & Trevi (No 3) [2019] FamCAFC 58

Applicant:

MS WAKELEY

Respondent:

MR WAKELEY

File Number:

SYC 1927 of 2015

Judgment of:

Judge Morley

Hearing date:

4 April 2019

Date of Last Submission:

4 April 2019

Delivered at:

Sydney

Delivered on:

14 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Linden Legal

Counsel for the Respondent:

Mr Othen

Solicitors for the Respondent:

Whitfields Solicitors

ORDERS

That the husband’s Amended Application in a case filed 5 March 2019 is dismissed.
That in relation to the substantive proceedings and the husband’s application for costs, each party shall bear his and her own costs.

IT IS NOTED that publication of this judgment under the pseudonym Wakeley & Wakeley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1927 of 2015

MS WAKELEY

Applicant

And

MR WAKELEY

Respondent

REASONS FOR JUDGMENT

Introduction

The substantive proceedings between Ms Wakeley as the applicant wife (‘the wife’) and Mr Wakeley as the respondent husband (‘the husband’) were proceedings for property settlement orders under section 79 of the Family Law Act 1975 (Cth) (‘the Act’). The proceedings were heard and determined on a final basis by his Honour Judge Harper (as his Honour then was) on 19 and 20 March and 19 April 2018, with judgement delivered and orders made on 18 December 2018. The judgement and orders were subsequently corrected in relation to some clerical errors by orders made on 30 January 2019. The final orders were varied on 1 October 2019, but that variation has no bearing on this Application for costs.
His Honour determined that the net matrimonial asset pool be divided 62% to the wife and 38% to the husband. The variation of the final orders was by consent of the parties on 1 October 2019. One such consent order was a variation as to how interest was to be calculated on a sum payable by the wife to the husband, and the other was a variation to an order dealing with certain rugby jerseys (‘the jerseys’) so as to remove any benefit from the sale or otherwise of those jerseys passing to the wife…

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 WAKELEY & WAKELEY (No.2)

Details

AGLC: WAKELEY & WAKELEY (No.2) [2020] FCCA 652
Case: [2020] FCCA 652
Decision Date: 14 April 2020

CaseChat Overview and Summary

In the matter of *Wakeley & Wakeley (No.2)*, Judge Morley of the Family Court of Australia considered an application by the husband for costs against the wife. The dispute arose in the context of family law proceedings where the husband had made an offer of settlement which the wife did not accept.

The central legal issue before the court was whether there were any circumstances that would justify making a costs order against the wife, despite the husband's offer of settlement not being accepted. The court was required to assess the conduct of the parties throughout the proceedings to determine if a departure from the usual rule that each party bears their own costs was warranted.

Judge Morley reasoned that while the husband had made an offer of settlement, the wife's non-acceptance did not automatically lead to a costs order in his favour. The court found no failure by the wife to comply with previous orders and noted that the husband's own conduct, including late disclosure, did not support his claim for costs. Consequently, the court determined that there were no circumstances justifying an order for costs against the wife.

The court ordered that the husband's Amended Application in a case filed 5 March 2019 be dismissed. Furthermore, in relation to the substantive proceedings and the husband's application for costs, the court ordered that each party shall bear his and her own costs.

Orders

Orders of the court

That the husband’s Amended Application in a case filed 5 March 2019 is dismissed.

That in relation to the substantive proceedings and the husband’s application for costs, each party shall bear his and her own costs.

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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