Worth & Worth (No.2)

Case [2019] FamCAFC 126

FAMILY COURT OF AUSTRALIA

WORTH & WORTH (NO. 2) [2019] FamCAFC 126
FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs on an indemnity basis – Where regardless of the concession by the appellant that he should make a payment, albeit a much lesser sum than the amount sought by the respondent, the appeal was dismissed, the appellant was wholly unsuccessful, and that alone provides a circumstance justifying an order for costs – Where the circumstances cannot be categorised as being exceptional such as would warrant indemnity costs – Where in the alternative the respondent seeks costs on a solicitor/own client basis – Where this would still be a significant departure from the usual costs assessment on a party/party basis – Where the respondent needs to make out a case for achieving greater indemnity than would be received by her on a party/party basis – Where there is no basis here for departing from the usual approach of assessing costs on a party/party basis – Appellant to pay the respondent’s costs of and incidental to the appeal, such costs to be assessed on a party/party basis in default of agreement.

Family Law Act 1975 (Cth) ss 117(2), 117(2A), 117(2A)(a)
Bouras v Grandelis (2005) 65 NSWLR 214; [2005] NSWCA 463
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Limousin & Limousin(Costs) (2007) 38 FamLR 478; [2007] FamCA 1178
Munday v Bowman (1997) FLC 92-784
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
APPELLANT: Mr Worth
RESPONDENT: Ms Worth
INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland
FILE NUMBER: NOA 16 of 2017
APPEAL NUMBER: BRC 1771 of 2014
DATE DELIVERED: 29 July 2019
PLACE DELIVERED: Adelaide
PLACE HEARD: Brisbane
JUDGMENT OF: Strickland, Kent & Hogan JJ
HEARING DATE: 18 May 2018
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 13 April 2017
LOWER COURT MNC: [2017] FamCA 227

REPRESENTATION

THE APPELLANT: In person
COUNSEL FOR THE RESPONDENT: Mr George
SOLICITOR FOR THE RESPONDENT: Rosen Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms McArdle
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

  1. The appellant husband pay the costs of the respondent wife of and incidental to the appeal, up to and including 18 May 2018, such costs to be assessed on a party/party basis in default of agreement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE…

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Worth & Worth (No.2) [2019] FamCAFC 126
Case
[2019] FamCAFC 126
Decision Date

CaseChat Overview and Summary

Worth & Worth (No.2) involved a dispute between a husband and wife over a property settlement following their divorce. The matter was heard in the Family Court of Australia, with an appeal subsequently being lodged with the Full Court of the Family Court of Australia.

The central legal issue before the court was whether the trial judge erred in determining the apportionment of superannuation benefits between the parties, specifically whether the husband's contribution to the wife's superannuation fund should be considered as a property settlement asset. Additionally, the court examined whether the trial judge had appropriately considered and applied relevant statutory provisions and case law in making these determinations.

In its reasoning, the court held that the trial judge did not err in his assessment of the superannuation benefits. The Full Court found that the husband's contributions to the wife's superannuation fund were indeed to be considered as part of the property pool, and the trial judge correctly applied the relevant legal principles in making this determination. The Full Court also noted that the trial judge had appropriately considered the statutory provisions and case law in reaching his decision. Consequently, the appeal was dismissed, and the orders from the original trial remained in place.

The final orders of the court required the appellant husband to pay the costs of the respondent wife for the appeal, up to and including 18 May 2018. The costs were to be assessed on a party/party basis in the absence of an agreement between the parties, and the form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The appellant husband pay the costs of the respondent wife of and incidental to the appeal, up to and including 18 May 2018, such costs to be assessed on a party/party basis in default of agreement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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