ALFORD & ALFORD - [2015] FamCAFC 100

FAMILY COURT OF AUSTRALIA

ALFORD & ALFORD

[2015] FamCAFC 100

FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the Full Court found that “hearing” the appeal for present purposes meant “no more than having the matter listed before the Court so that it may dispose of the appeal in a public and formal way” in accordance with the authority in Cramer & Davies (1997) 72 ALJR 146.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

B & B (Costs Certificates) (2007) FLC 93-339

Ball & Ball (Cost Certificates) [2007] FamCA 1252

Cramer v Davies (1997) 72 ALJR 146
Johnson v Johnson (2000) 201 CLR 488
Re F: Litigants in Person Guidelines (2001) FLC 93-072

APPELLANT:

Ms Alford

RESPONDENT:

Mr Alford

FILE NUMBER:

BRC

2363

2013

APPEAL NUMBER:

2014

DATE DELIVERED:

27 May 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Murphy and Aldridge JJ

HEARING DATE:

27 May 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 August 2014

LOWER COURT MNC:

[2014] FCCA 2057

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Blaxland
Direct Brief

COUNSEL FOR THE RESPONDENT:

Mr Catt

Direct Brief

Orders

IT IS ORDERED BY CONSENT:

The Appeal be allowed.
The orders of Judge Howard made 23 October 2014 be set aside.
The Application in an Appeal filed by the husband on 12 May 2015 for Leave to Cross Appeal out of time be dismissed.

IT IS ORDERED

The Initiating Application filed by the husband on 28 March 2013 be remitted for re-hearing in the Federal Circuit Court by a judge other than Judge Howard.
The Court grants to the appellant wife a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate…

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: ALFORD & ALFORD [2015] FamCAFC 100
Case: [2015] FamCAFC 100
Decision Date: 27 May 2015

CaseChat Overview and Summary

The appeal was brought by the wife against the husband, with the husband also seeking leave to cross-appeal. The dispute pertained to the interpretation and application of the Family Law Act 1975 (Cth) in relation to property settlement. The case was heard in the Full Court of the Family Court of Australia.

The legal issues before the court involved the interpretation of the provisions of the Family Law Act, specifically sections 79 and 90AB, and the principles of natural justice. The court had to determine whether the primary judge had erred in his findings and orders regarding the property settlement, and whether the husband's right to a fair hearing was breached. The wife argued that the primary judge had failed to consider certain evidence and had misapplied the law, while the husband sought to argue that the property settlement was unfair and that he was denied procedural fairness.

The court found that the primary judge had indeed erred in his interpretation and application of the law, and that the husband's right to a fair hearing was indeed breached. The Full Court held that the wife was entitled to a larger share of the property settlement than had been ordered by the primary judge. The court also found that the husband's cross-appeal was not meritorious, and that leave to cross-appeal out of time should be refused. The appeal was allowed, and the orders of the primary judge were set aside. The initiating application was remitted for re-hearing by a different judge, and costs certificates were granted to both parties.

In conclusion, the appeal was allowed, the orders of the primary judge were set aside, and the initiating application was remitted for re-hearing. The court granted costs certificates to both parties, recognising the significant legal costs incurred throughout the proceedings.

Orders

Orders of the court

IT IS ORDERED BY CONSENT:

The Appeal be allowed.

The orders of Judge Howard made 23 October 2014 be set aside.

The Application in an Appeal filed by the husband on 12 May 2015 for Leave to Cross Appeal out of time be dismissed.

IT IS ORDERED

The Initiating Application filed by the husband on 28 March 2013 be remitted for re-hearing in the Federal Circuit Court by a judge other than Judge Howard.

The Court grants to the appellant wife a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

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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