FAMILY COURT OF AUSTRALIA
| WEIMAN & PAIGE (COSTS) | [2014] FamCA 173 |
FAMILY LAW – COSTS – PROPERTY PRCEEDINGS – OFFERS IN WRITING MADE – section 117(2A)(f) – where each party ought to have accepted an offer of settlement made in writing albeit at different times – where the husband had no funds following the payment of legal costs which might be available to meet a costs order – where financial circumstances of the parties were significant matters considered
| Family Law Act 1975 (Cth) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) |
| Browne & Green (2002) Fam LR 428; FLC 93-115 Harris & Harris (1991) 15 Fam LR 26; FLC 92–254 Higginbotham & Robinson (1991) 14 FamLR 559; (1991) FLC 92-209 In the Marriage of Pennisi (1997) 22 FamLR 249 Jamal v Secretary, Dept of Health (1988) 14 NSWLR 252 Lennon & Lennon (Costs) [2012] FamCA 116 Lenova & Lenova (Costs) [2011] FamCAFC 141 MacDougall v. Curlevski (1996) 40 NSWLR 430 Oliver & Oliver (No 2) [2010] FamCAFC 174 Penfold v Penfold (1979-1980) 144 CLR 311 Rhazi & Rhazi (Costs) [2011] FamCA 428 |
| APPLICANT: | Ms Weiman |
| RESPONDENT: | Mr Paige |
| FILE NUMBER: | SYC | 5643 | of | 2010 |
| DATE DELIVERED: | 24 February 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 28 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pender |
| SOLICITOR FOR THE APPLICANT: | J.S. Pinto & Co |
| COUNSEL FOR THE RESPONDENT: | Ms McIntosh |
| SOLICITOR FOR THE RESPONDENT: | JNT Legal |
Orders
The wife’s application for costs is refused and dismissed.
The wife is to forthwith pay to the husband the sum of $6,000 by way of costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Weiman & Paige (Costs) 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 SYDNEY |
FILE NUMBER: SYC 5643 of 2010
| Ms Weiman |
Applicant
And
| Mr Paige |
Respondent
REASONS FOR JUDGMENT
Introduction
Following the delivery of a judgment by me determining property division pursuant to section 79 of the Act, the wife makes application to the court for an order requiring the husband to pay her costs. The precise order sought by the wife is as follows: “The husband pay the wife’s costs incurred by her in respect of the s 79 proceedings between the parties as and from 19 April 2012. Such costs to be as agreed or in the absence of agreement as assessed.”
The husband opposes the application sought by the wife and seeks an order that the wife’s application for costs, as specified above, be dismissed.
In addition to the opposition the husband identified to the wife’s application for costs, he filed an application of his own on 28 November 2013 in which he sought an order that the wife pay his costs as and from 6 May 2010 or such other date as the court may determine. Alternatively, the husband sought orders that the…
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- AGLC
- Weiman and Paige (Costs) [2014] FamCA 173
- Case
- [2014] FamCA 173
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the determination of costs pursuant to section 117(2A) of the *Family Law Act 1975* (Cth). This required the court to consider whether each party ought to have accepted offers of settlement made in writing, the financial circumstances of the parties, and the conduct of the parties in relation to the proceedings, including allegations of non-disclosure and the timing of settlement offers. The court also had to assess the reasonableness of the parties' positions regarding the resolution of property matters in conjunction with parenting disputes.
The court reasoned that while the wife's offer of settlement on 19 April 2012 was marginally better than the final orders she received, she ought not to succeed in recovering costs from that date because the husband had made an earlier offer of settlement on 6 May 2010 which the wife should have accepted. The court found that the husband's conduct in delaying property discussions until parenting issues were resolved was not unreasonable in the circumstances, as the parties' responsibilities towards their children are a significant factor in property division. Furthermore, the court accepted the husband's evidence regarding his financial position and the nature of his business income, and did not find that the wife's allegations of non-disclosure were substantiated to the extent that they warranted a costs order in her favour. The court also noted that the husband had no funds available to meet a costs order against him.
Consequently, the wife's application for costs was refused and dismissed. The court ordered that the wife pay the husband the sum of $6,000 by way of costs.
Orders
Orders of the court
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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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