Wilton and Wilton

[2016] FCCA 1123

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILTON & WILTON [2016] FCCA 1123

Catchwords:
FAMILY LAW – Application for costs following summary dismissal of a child support application – where the respondent seeks indemnity costs against the applicant and his solicitor – consideration of the factors in s.117(2A) – where father was wholly unsuccessful – consideration of the conduct of the father and his solicitor – where proceedings were commenced in the state Magistrates’ Court.

Legislation:

Family Law Act 1975 ss.117(1), 117(2), 117(2A)

Federal Circuit Court Rules 2001 rr.21.02, 21.07

Cases cited:
In the Marriage of I (No 2) (1995) FLC 92-625

Lilley & CSR & Ors (SSAT Appeal) [2010] FMCAfam 378
Aish v Greco [2014] FCCA 2283
Dunwell & Dunwell (Indemnity Costs Against A Lawyer) [2012] FamCA 337
Limousin v Limousin [2008] FamCA 315
Lemoto v Able Technical Pty Ltd & Ors[2005] NSWCA 153
Medlon & Medlon (No.6) (Indemnity Costs) [2015] FamCAFC 157

Applicant: MR WILTON

Respondent: MS WILTON

File Number: DGC1120/2007

Judgment of: Judge Williams

Hearing date: 6 April 2016

Date of Last Submission: 15 April 2016

Delivered at: Melbourne

Delivered on: 13 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Bacon, Solicitor

Solicitors for the Applicant: Manby & Scott

Counsel for the Respondent: Ms Tulloch

Solicitors for the Respondent: JH Legal

ORDERS

1. The applicant father pay the respondent mother’s costs of and incidental to the proceedings fixed at $6761.00 within 28 days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1120 of 2007

MR WILTON

Applicant

And

MS WILTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for costs by the respondent mother, resulting from the summary dismissal of the applicant father’s Initiating Application filed on 23 October 2015 in the Magistrates’ Court of Victoria at Melbourne (“Magistrates’ Court”).

Background

1. The parties were married on … 1984 and separated on 20 October 2001. There are two children of the marriage, Ms A born on … 1996, currently aged 20 and [X] born on … 1999 and currently aged 17.

2. The applicant father is aged 58 and is employed as a professional with the Employer. In his financial statement filed 23 October 2015 he deposes to an income of $106,000 per annum. The respondent mother is aged 53 years and is employed as a part time public servant at Employer in Suburb B. Her affidavit sworn 15 December 2015[1] states that her income is $38,000 per annum.

   [1] paragraph 2 of the affidavit of the mother sworn 15 December 2015

3. On the 23 February 2004 Final Property Orders were made by consent before Her Honour, as she was then, Federal Magistrate Hartnett.

4. On 23 October 2015 the applicant father filed an Initiating Application in the Magistrates’ Court at Melbourne. In support of that application he filed an Affidavit and a Financial Statement both sworn on 23 October 2015.

5. On 17 December 2015…