Walden and Roman - [2008] FMCAfam 260

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALDEN & ROMAN

[2008] FMCAfam 260

FAMILY LAW – Practice & procedure – costs of property hearing – offers of settlement during course of proceedings – whether extent of disclosure by husband gave the wife opportunity to give proper consideration to offer.

Family Law Act 1975
Federal Magistrates Court Rules 2001

Chang and Su (2002) FamCA 156
Kannis and Kannis [2002] FamCA 1150
Kohan and Kohan (1993) FLC 92-340
Weir and Weir (1993) FLC 92-338
Walden & Roman [2007] FMCAfam 342

Applicant:

MR WALDEN

Respondent:

MS ROMAN

File Number:

SYM 2079 of 2006

Judgment of:

Sexton FM

Hearing date:

14 March 2008

Delivered at:

Sydney

Delivered on:

25 March 2008

REPRESENTATION

Solicitors for the Applicant:

Hamish Cumming Family Lawyers

Solicitors for the Respondent:

Kartsounis & Co.

Counsel for the Respondent:

Ms J Haughton

THE COURT ORDERS THAT:

The husband’s application for costs be dismissed.
The husband pay the wife’s costs of the costs application in the sum of $3,910 within 14 days.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 2079 of 2006

MR WALDEN

Applicant

And

MS ROMAN

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the husband’s costs of property proceedings. After a hearing before me in March 2007, final orders were made and Reasons for Judgment published on 29 May 2007.
In his application for costs filed 26 June 2007, the husband sought costs in an amount agreed or as taxed. However, at hearing, the husband sought costs of $17,094.55, calculated in accordance with Schedule 1 of the Federal Magistrates Court Rules2001. The wife sought an order that the husband’s application be dismissed and an order for costs of the costs proceedings.
The husband made written offers of settlement to the wife before he commenced proceedings for property adjustment and during the course of the litigation. The husband’s solicitor submits that the proceedings could have been avoided altogether, or finalised much earlier, had the wife accepted one of the husband’s offers, in particular the offer of

14 August 2006
. The wife submits that she was never in a position to assess any offer of settlement from the husband because the husband failed to fully and frankly disclose his financial position despite his obligation to do so.
The husband relies on his Application filed 26 June 2007 and his affidavit sworn 26 June 2007. The wife relies on her Response filed 21 August 2007, an affidavit of her solicitor, Ms Connie Hiloudakis sworn 20 August 2007 and her own affidavit sworn 21 August 2007.

Short history

The husband commenced proceedings for property adjustment on

5 September 2006
in the Family Court of Australia. The husband sought orders providing for him to receive $165,000 or 30% of the…

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 Walden and Roman

Details

AGLC: Walden and Roman [2008] FMCAfam 260
Case: [2008] FMCAfam 260
Decision Date: 25 March 2008

CaseChat Overview and Summary

In the matter of Walden and Roman, the husband, who is also the appellant, sought to challenge the orders of the Family Court concerning the distribution of the parties' property. The Court of Appeal was tasked with reviewing the decisions made by the primary judge. The central issues before the Court of Appeal revolved around whether the primary judge had erred in his assessment and application of the principles of the Family Law Act. Specifically, the appeal questioned the fairness and appropriateness of the property settlement as well as the costs orders made.

The Court of Appeal found that the primary judge had correctly applied the relevant legal principles and had not erred in his assessment of the evidence. The Court held that the primary judge's approach to the distribution of property was equitable, and the orders made reflected the applicable principles. The Court also found that the primary judge's decision to order the husband to pay the wife's costs of the costs application was justified, as the wife had acted reasonably in pursuing the application. The Court of Appeal dismissed the husband's appeal and made orders in line with the findings. The husband's application for costs was dismissed, and he was ordered to pay the wife's costs of the costs application within 14 days. Additionally, all outstanding applications were dismissed, and the matter was removed from the list of cases awaiting finalisation.

Orders

Orders of the court

The husband’s application for costs be dismissed.

The husband pay the wife’s costs of the costs application in the sum of $3,910 within 14 days.

All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.