Wolter and Wolter (No 2) - [2015] FamCA 582

FAMILY COURT OF AUSTRALIA

WOLTER & WOLTER (NO 2)

[2015] FamCA 582

FAMILY LAW – COSTS – Between parties – Where the mother was previously successful in her application for a recovery order of the child – Where the mother has applied for costs on an indemnity or party/party basis – Where relevant factors under s 117 of the Family Law Act 1975 (Cth) considered – Where principles underlying an award for indemnity costs considered – Where order made for costs on a party/party basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 19.08, 19.18

Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536

D & D (Costs) (No. 2) [2010] FamCAFC 64

Fennessy & Gregorian [2009] FamCAFC 44

Limousin & Limousin [2007] FamCAFC 1178

PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

Penfold v Penfold (1980) 144 CLR 311.

Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT:

Ms Wolter

RESPONDENT:

Mr Wolter

FILE NUMBER:

SYC

5747

2009

DATE DELIVERED:

23 July 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Foster J

HEARING DATE:

30 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Watkins

SOLICITOR FOR THE APPLICANT:

Shipton & Associates

COUNSEL FOR THE RESPONDENT:

Litigant in person

Orders

That the father pay the mother’s costs of and incidental to the application in a case filed on 24 February 2015 on a party/party basis, as agreed between the parties within 21 days from this date or as assessed, within 21 days of agreement or assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wolter & Wolter (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 5747 of 2009

Ms Wolter

Applicant

And

Mr Wolter

Respondent

REASONS FOR JUDGMENT

The application for determination is an application by the mother for an order for costs consequent upon orders made on 30 April 2015 in respect to her Application in a Case filed on 24 February 2015.
The background to the application is briefly set out in the Reasons for Judgment delivered on 30 April 2015 (Wolter & Wolter [2015] FamCA 338) as set out below:
The Recovery Order
2. These are proceedings primarily under the provisions of section 67U of the Act which empower the Court to make a recovery order such as the Court thinks proper. In determining whether to make a recovery order, section 67U is governed by the provisions of section 67V, which relevantly provides:
In deciding whether to make a recover order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration.
3. The primary application for determination is the mother’s application in a case filed on 24 February…

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.

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Details

Case: [2015] FamCA 582
Decision Date: 23 July 2015

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, constituted by Foster J, considered an application concerning costs in proceedings between a father and a mother. The dispute related to an application filed on 24 February 2015.

The primary legal issue before the court was the determination of costs. Specifically, the court was required to decide whether the father should be ordered to pay the mother's costs of and incidental to the application filed on 24 February 2015, and on what basis those costs should be assessed.

Foster J ordered that the father pay the mother’s costs of and incidental to the application filed on 24 February 2015 on a party/party basis. These costs are to be agreed between the parties within 21 days from the date of the order, or if agreement cannot be reached, they are to be assessed. Payment of the costs, whether by agreement or assessment, is to be made within 21 days of such agreement or assessment.

Orders

Orders of the court

That the father pay the mother’s costs of and incidental to the application in a case filed on 24 February 2015 on a party/party basis, as agreed between the parties within 21 days from this date or as assessed, within 21 days of agreement or assessment.

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

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