WORRALL and BARTLEY - [2023] FCWA 133

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WORRALL and BARTLEY [2023] FCWA 133
CORAM: O'BRIEN J
HEARD: WRITTEN SUBMISSIONS
DELIVERED : 5 JULY 2023
FILE NO/S: 4789 of 2010
BETWEEN: MR WORRALL
Applicant
AND
MS BARTLEY
Respondent

Catchwords:

COSTS – where the father seeks costs in a fixed sum after complex and difficult parenting proceedings – where the amount sought represents slightly less than half of the father's costs actually incurred – where an order for costs is justified and the amount sought is reasonable in all the circumstances – turns on its own facts

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 2021 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A
Independent Children's Lawyer	:	N/A

Solicitors:

Applicant	:	O'Sullivan Davies Lawyers
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Legal Aid Western Australia

Case(s) referred to in decision(s):

Anison v Anison (2019) FLC 93-908
Beach Petroleum NL and Anor v Johnson and Ors (No 2) (1995) 57 FCR 119
Braithwaite v Braithwaite [2007] FamCA 468
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Hall v Hall (2016) 257 CLR 490
Idoport Pty Ltd v National Australia Bank Ltd & Ors [2007] NSWSC 23
Lenova & Lenova (Costs) [2011] FamCAFC 141
Parke & The Estate of the Late A Parke (2016) FLC 93-748
Prantage v Prantage (2013) FLC 93-544
Worrall and Bartley [2023] FCWA 2
Wrenstead & Eades (2016) FLC 93-697

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym [Worrall and Bartley] has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The most recent tranche of the long-running litigation between [Mr Worrall] ("the father") and [Ms Bartley] ("the mother") about their child [Child A], born [in] 2009, culminated in a trial, with judgment delivered on 13 January 2023 ("the primary judgment").[1]
[1] Worrall and Bartley [2023] FCWA 2.
2The matter now requiring determination is the application of the father seeking that the mother pay $250,000 towards his costs of those proceedings. The mother has not responded to that application. The Independent Children's Lawyer does not seek to be heard.
3In support of his application, the father relies on his affidavit filed on 14 March 2023 and written submissions filed the same day. The mother was required to file any responsive written submissions by 15 May 2023, and she did not. I record that I specifically drew that requirement to the attention of the mother at a hearing on 17 March 2023…

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 WORRALL and BARTLEY

Details

AGLC: WORRALL and BARTLEY [2023] FCWA 133
Case: [2023] FCWA 133
Decision Date: 5 JULY 2023

CaseChat Overview and Summary

The case of Worrall and Bartley involved a dispute between the parties regarding complex parenting arrangements. The matter was heard and determined in the Family Court of Australia. The father sought an order for costs in a fixed sum following protracted and difficult proceedings. The amount sought by the father was slightly less than half of the costs he had actually incurred. The central legal issues that the court needed to address were whether an order for costs was justified and, if so, whether the amount sought by the father was reasonable in the circumstances.

In delivering the judgment, the court carefully considered the nature and complexity of the proceedings, the efforts and resources expended by both parties, and the overall fairness of the outcome in relation to the costs sought. The court concluded that an order for costs was indeed justified, given the extensive nature of the litigation and the significant resources required to resolve the parenting disputes. The court further found that the amount sought by the father, which was slightly less than half of his actual costs, was reasonable in all the circumstances. This conclusion was based on the principle that the costs should reflect the nature and complexity of the case, and the court found that the amount requested was proportionate and appropriate.

The court's reasoning and findings led to a determination that the father was entitled to an order for costs in the fixed sum he had sought. The court recognised the substantial efforts and resources that had been invested by both parties in the litigation, and it found that the amount sought by the father was a fair reflection of the costs incurred. The court's decision underscored the importance of considering the specific facts and circumstances of each case when determining the appropriate amount of costs in complex parenting matters.

Orders