WOOTON & HILLIER - [2016] FamCA 965

FAMILY COURT OF AUSTRALIA

WOOTON & HILLIER

[2016] FamCA 965

FAMILY LAW – COSTS – Where the matter was finalised on the sixth day of the trial when a consent order was made – Where the wife makes a costs application after protracted litigation about whether a financial agreement is binding and whether the financial agreement should be set aside in any event based upon a history of systemic family violence – Where the wife seeks that the costs order not apply to certain parts of the proceedings where she concedes costs orders are not appropriate – Where the husband opposes any order for costs being made in the wife’s favour – Where in the circumstances of the case the court is entitled to consider making an order for costs notwithstanding that the matter was resolved by a consent order without any determination on the merits –Where it is a weighty consideration that the husband made the concession that the financial agreement was not binding – Where the evidence taken as a whole at the time the consent order was made heavily supports a finding that it was highly likely the wife would have established a course of conduct by the husband which would have been more than sufficient to ensure her success in establishing grounds under s 90K(1)(b) and (e) of the Family Law Act 1975 (Cth) to have the financial agreement set aside – Where aspects of the husband’s conduct in the proceedings weigh in favour of the wife – Where it is just to make an order as to party/party costs as agreed or assessed which order is not to include certain parts of the proceedings.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Australian Securities Commission v Aust-Home Investments Ltd and Others (1993) 116 ALR 523
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Idoport Pty Ltd v National Australia Bank Ltd & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23
Muldoon & Carlyle (2012) FLC 93-513

Re Minister of Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

APPLICANT:

Ms Wooton

RESPONDENT:

Mr Hillier

FILE NUMBER:

CAC

2423

2007

DATE DELIVERED:

11 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

29 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney, SC

SOLICITOR FOR THE APPLICANT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton, SC

SOLICITOR FOR THE RESPONDENT:

Milevski Family Lawyers

Orders

Subject to these orders, within 28 days the husband pay the wife’s costs of and incidental to the proceedings instituted by the application filed 7 October 2011 on a party/party basis as agreed or assessed.
Order 1 will not include the wife’s costs relating to:
2.1.The application to prevent the wife’s former lawyer from continuing to act for her which was resolved by consent orders on 14 August 2012;
2.2.The application relating to the disqualification of the…

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

AGLC: WOOTON & HILLIER [2016] FamCA 965
Case: [2016] FamCA 965
Decision Date: 11 November 2016

CaseChat Overview and Summary

In the matter of *Wooton & Hillier*, Watts J of the Family Court of Australia considered an application for costs following the finalisation of a trial by consent order on its sixth day. The dispute primarily concerned the binding nature of a financial agreement and whether it should be set aside due to allegations of systemic family violence. The wife sought costs, excluding certain parts of the proceedings where she conceded costs orders were inappropriate, while the husband opposed any costs order in her favour.

The court was required to determine whether it was entitled to make a costs order despite the matter being resolved by a consent order without a determination on the merits. A significant factor for the court's consideration was the husband's concession that the financial agreement was not binding. The court also had to assess whether the evidence, as it stood at the time of the consent order, strongly indicated the wife would have succeeded in setting aside the financial agreement under s 90K(1)(b) and (e) of the *Family Law Act 1975* (Cth), and whether aspects of the husband's conduct warranted a costs order in the wife's favour.

Watts J reasoned that the court was indeed entitled to consider costs orders in such circumstances. The husband's concession regarding the financial agreement was a weighty consideration. Furthermore, the evidence presented strongly suggested that the wife was highly likely to have established a course of conduct by the husband sufficient to succeed in setting aside the agreement under the specified provisions of the Act. Aspects of the husband's conduct during the proceedings also weighed in favour of the wife. Consequently, the court found it just to make an order for party/party costs, with specific exclusions.

The court ordered that, subject to certain exceptions, the husband pay the wife's costs of and incidental to the proceedings on a party/party basis within 28 days. These exceptions included costs related to an application to prevent the wife's former lawyer from acting, an application for the disqualification of a Federal Magistrate and the subsequent appeal, any claim to set aside the financial agreement under s 90K(1)(a) of the Act, work done in respect of the husband's Application in a Case, and any work concerning parenting issues. The court also certified the reasonableness of the wife engaging senior and junior counsel and dismissed the husband's applications for costs. Finally, the husband was ordered to pay 85 per cent of the wife's costs in respect of her application for costs made on 17 May 2016 and the husband's cross-application for costs.

Orders

Orders of the court

Subject to these orders, within 28 days the husband pay the wife’s costs of and incidental to the proceedings instituted by the application filed 7 October 2011 on a party/party basis as agreed or assessed.

Order 1 will not include the wife’s costs relating to:

2.1. The application to prevent the wife’s former lawyer from continuing to act for her which was resolved by consent orders on 14 August 2012;

2.2. The application relating to the disqualification of the Federal Magistrate (as he then was) nor the appeal from that order;

2.3. Any claim by the wife that the financial agreement signed by the wife on 18 May 2007 should be set aside pursuant to the provisions of s 90K(1)(a) of the Family Law Act 1975 (Cth) including any costs incurred in relation to the preparation of affidavit evidence relevant only to that subsection, the costs of financial investigations and reports of forensic accountants including Mr F and any other expert evidence not relied upon by the wife at the time of the trial;

2.4. Any work done on behalf of the wife in respect of the husband’s Application in a Case dated 3 April 2012;

2.5. Any work in respect of parenting issues.

I certify that it was reasonable for the wife to engage the senior and junior counsel that she has engaged from time to time.

The husband’s cross application for a costs order be dismissed.

The application by the husband for costs, which were reserved by way of order 4 made 6 September 2012, be dismissed.

Within 28 days the husband pay to the wife 85 per cent of her costs in respect of her application for costs made orally on 17 May 2016 and the husband’s cross application for costs, on a party/party basis to be agreed or assessed.

The wife is to forward to Mr G or his legal representatives a copy of these Reasons for Judgment.

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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