WHITEHOUSE & WHITEHOUSE - [2010] FamCA 315

FAMILY COURT OF AUSTRALIA

WHITEHOUSE & WHITEHOUSE

[2010] FamCA 315

FAMILY LAW – COSTS – Circumstances justifying order

FAMILY LAW – COSTS – Between parties

FAMILY LAW – COSTS – Taxation of costs

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Brown v Brown (1998) FLC 92-822

APPLICANT:

Ms Whitehouse

(by her case guardian)

RESPONDENT:

Mr Whitehouse

(by the executrices of his estate)

FILE NUMBER:

MLF

3248

2006

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATE:

By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirkham QC
Mr Thompson

Mr Moloney

SOLICITOR FOR THE APPLICANT:

C E Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr North SC

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Grice & Grice

Orders

IT IS ORDERED THAT

Failing agreement between the parties as to costs within 28 days hereof or such further time as may be agreed between them in writing and subject to paragraph 2 hereof, the costs of the husband's estate of and incidental to the proceedings resulting in the orders of the Court made on 6 February 2009, including the costs of and incidental to these applications for costs, be assessed between the parties pursuant to Chapter 19 of the Family Law Rules 2004 and when so assessed be paid by the wife's estate.
Notwithstanding paragraph 1 hereof, the costs of the wife's estate of and incidental to the adjournment of the proceedings on 10 December 2007 be assessed as between parties pursuant to the said Rules and when so assessed be set off against the costs to be paid by the wife's estate to the husband's estate pursuant to paragraph 1 hereof.
All applications be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3248 of 2006

MS WHITEHOUSE

(by her case guardian)

Applicant
And

MR WHITEHOUSE

(by the executrices of his estate)

Respondent
REASONS FOR JUDGMENT
INTRODUCTION

On 6 February 2009 I delivered reasons for judgement ("the reasons") and made orders ("the orders") dismissing the claim by the Estate of the Deceased Wife ("the wife's estate") for relief against the Estate of the Deceased Husband ("the husband's estate") pursuant to the accrued jurisdiction of the Court. The basis of those reasons was that the claim was void ab initio for want of jurisdiction.
The wife's estate appealed to the Full Court of this Court against that decision, Whitehouse & Whitehouse [2009] FamCAFC 207. The appeal was dismissed.

THE PRESENT APPLICATIONS

The parties indicated to the Court that they sought costs arising out of the orders. Accordingly, on 5 May 2009 Cronin J made directions for the filing of submissions in…

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 WHITEHOUSE & WHITEHOUSE

Details

AGLC: WHITEHOUSE & WHITEHOUSE [2010] FamCA 315
Case: [2010] FamCA 315
Decision Date: 23 April 2010

CaseChat Overview and Summary

In *Whitehouse & Whitehouse*, the parties were the estates of the husband and wife, and the dispute concerned the assessment and payment of costs arising from earlier family law proceedings. The matter came before Mushin J.

The court was required to determine the circumstances justifying an order for costs between the parties, specifically how those costs should be taxed and paid, and whether the wife's estate should bear the costs of the husband's estate. A further issue was the allocation of costs related to a specific adjournment of proceedings.

Mushin J reasoned that the general rule regarding costs in family law proceedings, which often involves parties bearing their own costs, could be departed from in this instance. The court applied the principles of the *Family Law Rules 2004*, particularly Chapter 19 concerning costs, to assess the situation. The court ordered that, failing agreement, the costs of the husband's estate from the proceedings culminating in the 6 February 2009 orders, including the costs of the applications for costs, were to be assessed and paid by the wife's estate. However, the costs incurred by the wife's estate in relation to the adjournment on 10 December 2007 were to be assessed and set off against the amount payable by the wife's estate to the husband's estate. All other applications were dismissed. The court also certified that the matter reasonably required the attendance of counsel.

Orders

Orders of the court

IT IS ORDERED THAT

Failing agreement between the parties as to costs within 28 days hereof or such further time as may be agreed between them in writing and subject to paragraph 2 hereof, the costs of the husband's estate of and incidental to the proceedings resulting in the orders of the Court made on 6 February 2009, including the costs of and incidental to these applications for costs, be assessed between the parties pursuant to Chapter 19 of the Family Law Rules 2004 and when so assessed be paid by the wife's estate.

Notwithstanding paragraph 1 hereof, the costs of the wife's estate of and incidental to the adjournment of the proceedings on 10 December 2007 be assessed as between parties pursuant to the said Rules and when so assessed be set off against the costs to be paid by the wife's estate to the husband's estate pursuant to paragraph 1 hereof.

All applications be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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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