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Costs – no error in trial judge’s order that applicant’s barrister and solicitor pay respondent’s costs where property case improperly pursued

In Beamish & Coburn (Deceased) [2021] FamCAFC 20 (22 February 2021) the Full Court (Aldridge, Austin & Tree JJ) dismissed with costs an appeal in a case where a live-in carer had sought a declaration as to the existence of a de facto relationship and property orders.

The court found that there was no evidence of the breakdown of a de facto relationship. The applicant’s barrister and solicitor appealed the order that they be jointly and severally liable for the respondent’s costs, fixed at $100,000.

The Full Court said (from [14]):

“The initiating application … was signed by [the applicant] …. At line 27, a cross indicated that a date of final separation was ‘[n]ot applicable’ (…)

[27] In her affidavit … [the applicant] … said:

… I believe [we] are still a couple but for the restrictions placed on me to visit him at his nursing home (…)

… [The deceased] did not voluntarily leave me but was forced to…

[28] … [D]ifficulties emerge from this evidence.

[29] The first is whether the parties had … separated at all. This issue can arise when one party … is moved to a hospital or an aged care facility. This does not … mean there has been a separation or breakdown of the … relationship (…)

[30] The second is identifying the date of the breakdown of the … relationship…

[31] … [T]he … judge found that the … practitioners were … negligent in failing to come to grips with these difficulties. … [T]he [barrister] … said that she considered withdrawing … but did not do so because the [solicitor] … threatened to sue her for negligence.(…)

[79] The … various forms of the initiating application filed by [the applicant] … failed to assert a breakdown of the relationship or identify a date that it occurred. … [T]he first three versions of the initiating application sought a declaration that the relationship had not ended. … [The applicant’s] … affidavit evidence was consistent with … no breakdown of the relationship.”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson is the co-editor. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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