WHITE & WHITE

Case [2014] FamCAFC 213

FAMILY COURT OF AUSTRALIA

WHITE & WHITE [2014] FamCAFC 213

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – VARIATION OF ORDER – Where the applicant seeks variation of a consent order for costs – Where the applicant submitted that the power of the Court to make the variation sought was provided for by r 1.11 of the Family Law Rules 2004 (Cth) – Where the power to make an order for costs is provided for in s 117(1) of the Family Law Act 1975 (Cth) – Where the Court is functus officio – Where there is otherwise no basis to vary the order for the appointment of an assessor – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the order for costs sought by the applicant in her written submissions is treated as an oral application for costs – Where the application is treated as being opposed – Where the respondent did not seek costs – Where the application has been dismissed and there is no basis for costs to be awarded to the applicant – No order for costs.

Family Law Act 1975 (Cth) – s 117

Family Law Rules (2004) (Cth) – rr 1.10, 1.11, 1.14 and 19.32(3)
Bailey v Marinoff (1971) 125 CLR 529
Bray & Bray (1988) FLC 91-968
Cranage & Cranage (1981) FLC 91-039
DJL v Central Authority (2000) 201 CLR 226
Gamser v Nominal Defendant (1977) 136 CLR 145
Guinness & Guinness(No. 2) [2008] FamCAFC 100
I Ltd & Chester and Ors [2010] FamCAFC 251
Kaljo & Kaljo (1978) FLC 90-445
Latham v Hubbard; Estate of Ross [2014] NSWSC 805
Lenova & Lenova [2011] FamCAFC 114
Martin & Harris (No. 2) [2009] FamCA 908
McDonald & McDonald (1976) FLC 90-047
Molier & Van Wyk (1980) FLC 90-911
Parsons v Martin (1984) 5 FCR 235
Pera & Pera [2008] FamCAFC 87
Phillips v Walsh (1990) 20 NSWLR 206
Ravasini & Ravasini (1983) FLC 91-312
Slapp & Slapp (1989) FLC 92-022
Vance & Vance [2011] FamCAFC 17
APPLICANT: Ms White
RESPONDENT: Mr R White as the Executor of the Estate of Mr P White (Deceased)
FILE NUMBER: SYC 4545 of 2009
APPEAL NUMBER: EA 68 of 2012
DATE DELIVERED: 6 November 2014
PLACE DELIVERED: Adelaide
JUDGMENT OF: May, Strickland and Ainslie-Wallace JJ
HEARING DATE: In Chambers
LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia
LOWER COURT JUDGMENT DATE: 8 May 2012
LOWER COURT MNC: [2012] FMCAfam 437

REPRESENTATION

SOLICITOR FOR THE APPLICANT: ProActive Legal Pty Ltd
SOLICITOR FOR THE RESPONDENT: Fox Legal

Orders

  1. The application in an appeal filed on 26 May 2014 be dismissed.

  2. There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym White & White has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:  EA 68 of 2012
File…

Continue reading WHITE & WHITE

Sign in free to access the full text

Details
AGLC
WHITE & WHITE [2014] FamCAFC 213
Case
[2014] FamCAFC 213
Decision Date

CaseChat Overview and Summary

In this appeal, the applicant sought a variation of a consent order for costs, which had been made in family law proceedings. The case was heard by the Family Court of Australia, and the applicant submitted that the power to make the variation was provided for by rule 1.11 of the Family Law Rules 2004 (Cth), while the power to make an order for costs was provided for in section 117(1) of the Family Law Act 1975 (Cth). The court had to decide whether it was functus officio and if there was any basis to vary the order for the appointment of an assessor. The court dismissed the application and concluded that there was no basis to vary the order for the appointment of an assessor.

The applicant argued that the court still had the power to vary the order for costs as it was functus officio. However, the court held that the application was dismissed, and there was no basis for the costs to be awarded to the applicant. The court further held that the order for costs sought by the applicant in her written submissions was treated as an oral application for costs, which was treated as being opposed. Since the respondent did not seek costs and the application had been dismissed, the court concluded that no order for costs could be made.

The court dismissed the application in an appeal filed on 26 May 2014. The court held that there was no order as to costs. The court concluded that the application was dismissed, and there was no basis to vary the order for the appointment of an assessor. The court further held that the order for costs sought by the applicant in her written submissions was treated as an oral application for costs, which was treated as being opposed. Since the respondent did not seek costs and the application had been dismissed, the court concluded that no order for costs could be made.

In conclusion, the court dismissed the application in an appeal filed on 26 May 2014, and there was no order as to costs. The court held that the application was dismissed, and there was no basis to vary the order for the appointment of an assessor. The court further held that the order for costs sought by the applicant in her written submissions was treated as an oral application for costs, which was treated as being opposed. Since the respondent did not seek costs and the application had been dismissed, the court concluded that no order for costs could be made.

Orders

Orders of the court

1.

The application in an appeal filed on 26 May 2014 be dismissed.

2.

There be no order as to costs.

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.