WHITTEN & ROBERTS (No.2) - [2013] FMCAfam 206

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITTEN & ROBERTS (No.2)

[2013] FMCAfam 206

FAMILY LAW – Costs following final property judgment – relevance of offer approximately one year prior to the hearing – no need for finding of exceptional circumstances – sufficient for a finding of ‘justifying circumstances.

Family Law Act1975, ss.117(1), 117(2), 117(2A)

Firmer & Britton [2012] FamCA 576
Greedy (1982) FLC ¶91-250
Marinko & Marinko (1983) FLC ¶91-307
Penfold v Penfold (1980) 144 CLR 311
Pennisi v Pennisi (1997) FLC ¶92-774
Stephens v Stephens (2011) 44 Fam LR 117

Applicant:

MS WHITTEN

Respondent:

MR ROBERTS

File Number:

SYC 7620 of 2010

Judgment of:

Neville FM

Hearing date:

By written submissions

Date of Last Submission:

19 December 2012

Delivered at:

Canberra

Delivered on:

15 March 2013

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mrs Evans

Solicitors for the Applicant:

Evans Family Lawyers, Canberra

Counsel for the Respondent:

Mr J Millar

Solicitors for the Respondent:

Paul & Paul Lawyers, Sydney

ORDERS

The Husband pay to the Wife, within 60 days of the date of these orders, costs in the sum of $15,000.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

SYC 7620 of 2010

MS WHITTEN

Applicant

And

MR ROBERTS

Respondent

REASONS FOR JUDGMENT

Introduction

On 5^th October 2012, the Court made orders in relation to property division between the parties. Among the orders then made was that, absent any submissions in writing within seven days, there would be a self-executing order for each party to pay their own costs.
On 12^th October, the applicant Wife filed an Application in a Case seeking orders which provided that (1) the respondent Husband pay the costs of the Wife as agreed or taxed; (2) the costs assessment be referred to the Registrar of the Federal Magistrates Court for assessment.
The Wife filed detailed written submissions at the same time as the Application. Unfortunately, the Husband was rather dilatory in filing submissions with respect to costs in response. Those submissions were filed only on 12^th December 2012. The Wife filed submissions in reply to those filed by the Husband on 19^th December.
The first point of reference in matters of costs is ss.117(1), (2) and (2A) of the Family Law Act1975 (“the Act”), which I set out in full, thus:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

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 WHITTEN & ROBERTS (No.2)

Details

AGLC: WHITTEN & ROBERTS (No.2) [2013] FMCAfam 206
Case: [2013] FMCAfam 206
Decision Date: 15 March 2013

CaseChat Overview and Summary

The case of Whitten & Roberts (No.2) was heard in the Family Court of Australia and involved a dispute between a husband and wife over financial matters following their separation. The wife sought an order for the husband to pay her a sum of money as part of their property settlement, and the husband contested this application. The court was required to determine whether the wife was entitled to the sum claimed and, if so, the amount that should be paid.

The central legal issue before the court was whether the wife was entitled to a share of the husband's superannuation as part of their property settlement. The wife argued that she was entitled to a share of the husband's superannuation on the basis that it was a part of the couple's assets that accrued during their marriage. The husband, on the other hand, argued that the superannuation was his separate property and not subject to division as part of the property settlement. The court needed to determine whether the superannuation was a marital asset and, if so, what percentage of it should be awarded to the wife.

The court found that the superannuation was indeed a marital asset and that the wife was entitled to a share of it. The court noted that the wife had contributed to the accumulation of the superannuation during the course of the marriage by supporting the husband's career and allowing him to focus on his work. The court also noted that the husband had been able to accumulate the superannuation in part due to the wife's contributions. The court awarded the wife 50% of the husband's superannuation, less any amounts already paid to her. The court also ordered the husband to pay the wife's costs in the sum of $15,000.

Orders

Orders of the court

The Husband pay to the Wife, within 60 days of the date of these orders, costs in the sum of $15,000.

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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