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Wyard & Wyard (No 2)

Wyard & Wyard (No 2)

Case [2022] FedCFamC2F 1417 21 October 2022

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Wyard & Wyard (No 2) [2022] FedCFamC2F 1417

File number(s): DUC 409 of 2021

Judgment of: JUDGE OBRADOVIC

Date of judgment: 21 October 2022

Catchwords: FAMILY LAW – Practice and Procedure – Costs – Application for costs on an indemnity basis – Applicant wholly unsuccessful – Whether circumstances justifying a costs order – Costs in accordance with scale.

Legislation:
Family Law Act 1975 (Cth) s.117

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 sch1

Cases cited:
Cochrane & Cochrane [2012] FMCAfam 984

Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801

Collins & Collins [1985] FamCA 15

Fitzgerald v Fish and Anor [2005] FamCA 158

Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 364

Greedy & Greedy [1982] FamCA 4

I & I(No.2) [1995] FamCA 80

Jensen &Jensen [1982] FamCA 57

Kohan & Kohan [1992] FamCA 116

Latoudis v Casey [1990] HCA 59

Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157

Munday v Bowman (1997) FLC 92-784 at 84,660

Penfold & Penfold [1980] HCA 4

Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)

Renald & Renald (Costs) [2018] FamCAFC 4

Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd [1991] FCA 225

Division: Division 2 Family Law

Number of paragraphs: 45

Date of last submission/s: 30 September 2022

Date of hearing: On the papers

Place: Parramatta

Appearing for the Applicant: Mr Hill

Solicitors for the Applicant: Longman Hill Solicitors

Counsel for the Respondent: Ms Bridger

Solicitors for the Respondent: Arden Law
ORDERS

DUC 409 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WYARD

Applicant

AND:
MR WYARD

First Respondent

MS B WYARD

Second Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

21 October 2022

THE COURT ORDERS THAT:
1.The Respondents are granted leave to rely on their Affidavit and Written Submissions filed on 5 September 2022.
2.Within 28 days the Applicant, Ms Wyard, is to pay the Respondents’ costs in the amount of $15,215.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Wyard & Wyard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:

On 16 August 2022, 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.

Continue reading Wyard & Wyard (No 2)

Details

AGLC: Wyard & Wyard (No 2) [2022] FedCFamC2F 1417
Case: [2022] FedCFamC2F 1417
Decision Date

CaseChat Overview and Summary

Wyard & Wyard (No 2) was a family law matter heard in Division 2 of the Federal Circuit and Family Court of Australia. The case involved an application for indemnity costs by the parents, Mr and Ms Wyard, against the paternal grandmother, Ms Wyard, who had applied for unsupervised time with their two children. The parents had previously made several offers to the paternal grandmother to settle the dispute, but she had refused to compromise. The paternal grandmother argued that she should not be ordered to pay costs because she was unsuccessful in her application and she was in a poor financial position. The parents submitted that the paternal grandmother's refusal to settle the dispute had caused them significant financial and emotional burden, and that she had acted unreasonably.

The court found that while costs orders in family law proceedings are rare, in appropriate cases such orders may be made. The court noted that the paternal grandmother had commenced proceedings despite the parents' attempts to settle the dispute, and that she had taken an unreasonable stance in refusing to compromise. The court also noted that the paternal grandmother had sufficient assets to pay the costs order. However, the court found that the paternal grandmother's conduct did not warrant an order for indemnity costs to be made against her. The court ordered that the paternal grandmother pay the parents' costs in the amount of $15,215 in accordance with the scale of costs set out in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021. The paternal grandmother was given 28 days to pay the costs.

Orders