WILBURN & WILBURN (No.3) - [2019] FCCA 2373

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILBURN & WILBURN (No.3)

[2019] FCCA 2373

Catchwords:
FAMILY LAW – Parental spend-time arrangements – ownership of vehicles – which parent should be paid first from bank funds.

Cases cited:

Wilburn & Wilburn [2019] FCCA 2131

Applicant:

MR WILBURN

Respondent:

MS WILBURN

File Number:

DGC 1426 of 2018

Judgment of:

Judge McNab

Hearing dates:

12, 13, 14, 15 March 2019, 1 and 2 April 2019 and 6 August 2019

Date of Last Submission:

21 August 2019

Delivered at:

Melbourne

Delivered on:

22 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Laidlaw

Solicitors for the Applicant:

Tyler Tipping and Woods

Counsel for the Respondent:

Ms Wheeler

Solicitors for the Respondent:

Macpherson Kelley

IT IS NOTED that publication of this judgment under the pseudonym Wilburn & Wilburn (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1426 of 2018

MR WILBURN

Applicant

And

MS WILBURN

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment arises due to the parties being unable to reach agreement on draft orders giving effect to the findings in the judgment delivered on 6 August 2019. None of the issues dealt with by these reasons were the subject of any detailed evidence or submissions at trial.
On 6 August 2019, the Court ordered that:
1. The Applicant provide a draft minute of orders by 4pm 7 August 2019 to the Respondent.
2. The Respondent provide a response to the draft minute of orders by 1pm 9 August 2019.
3. By 4pm 12 August 2019 the parties file an agreed minute or their respective minutes for consideration to the Court.
The parties provided their proposed draft minutes on 12 August 2019. The substantive issues of disagreement were:
in which years the parties spend time with the children for the first half of the long summer holidays as opposed to the second half of the long summer holidays;
in which years the parties spend time with the children from 5pm on Christmas Eve to 3pm Christmas Day as opposed to the years the parties spend time with the children from 3pm Christmas Day to 6pm on Boxing Day;
where change-over of the children should occur (should that not occur at school or child-care);
who should be paid first from the funds held in the Commonwealth Bank accounts ending in #..., #..., #...;
the amount that should be paid out of the above accounts to the parties;
who should own the Motor Vehicle CC; and
whether the Court should include a notation as to the father’s plans to have a yearly holiday in Town SS with the children.
The parties were offered the choice of having these issues determined on the papers (by providing 2 A4 pages of written submissions) or having the matter returning to Court for oral submissions.
The parties chose to have the matter determined on the papers.
The parties provided their written submissions on 21 August 2019 in relation to these issues.…

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 WILBURN & WILBURN (No.3)

Details

AGLC: Wilburn and Wilburn (No.3) [2019] FCCA 2373
Case: [2019] FCCA 2373
Decision Date: 22 August 2019

CaseChat Overview and Summary

This matter concerned an application by the wife for an order that the husband pay her legal costs of proceedings in the Family Court of Australia. The parties, Mr and Mrs Wilburn, were engaged in proceedings concerning the division of their matrimonial property. The wife sought an order that the husband pay her legal costs on an indemnity basis, or alternatively, on a party and party basis.

The central legal issue before McNab J was whether the husband's conduct during the proceedings warranted an order for indemnity costs. Specifically, the court had to consider whether the husband had acted unreasonably, vexatiously, or otherwise in a manner that justified departing from the usual rule that each party bears their own costs. The wife contended that the husband's conduct had unnecessarily prolonged the litigation and increased her legal expenses.

McNab J considered the principles governing costs orders in family law proceedings, noting that while the general rule is that parties bear their own costs, indemnity costs may be awarded in exceptional circumstances. These circumstances typically involve misconduct such as vexatious litigation, abuse of process, or unreasonable refusal of settlement offers. After reviewing the evidence of the husband's conduct throughout the proceedings, McNab J found that while some of his actions may have been ill-advised, they did not reach the threshold of unreasonableness or vexation required to justify an order for indemnity costs. The court determined that the husband's conduct, while not ideal, did not warrant penalising him with an order for indemnity costs.

Consequently, McNab J ordered that the husband pay the wife's costs of the proceedings on a party and party basis, rather than the indemnity basis sought by the wife.

Orders