FAMILY COURT OF AUSTRALIA
| ANISON & ANISON | [2019] FamCAFC 108 |
| FAMILY LAW – APPEAL – COSTS – Where the husband appeals from orders made for him to pay the wife’s costs of and incidental to property proceedings finalised in February 2018 – Where the husband was ordered to pay the wife the sum of $233,550 by way of final property settlement – Where each party sought costs orders against the other, and each opposed the applications of the other – Where the trial judge was called upon to determine costs applications with respect to three distinct subject matters – Where the trial judge made orders that the husband pay the wife’s costs on a party and party basis from 6 November 2015 – Where the trial judge concluded the husband had been “wholly unsuccessful” – Meaning of “wholly unsuccessful” – Where the trial judge exercised the discretion to make the costs orders by incorrectly interpreting and applying s 117(2A)(e) of the Family Law Act 1975 (Cth) – Appeal allowed in part. FAMILY LAW – APPEAL – RE-EXERCISE – Where both parties, in the event the appeal succeeded, sought the Full Court re-exercise the discretion – Where neither party sought to place any further evidence before the Court and were content to rely upon the material already filed before the trial judge – Where the husband put the wife to the expense of incurring the costs of an application in a case when she had an obviously undeniable claim for spousal maintenance and litigation funding – Where the husband ought be ordered to pay the wife’s costs of that application – Where there otherwise ought be no order as to costs in relation to the substantive proceedings – Where both parties granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal on the basis that it succeeded on an error of law. |
| Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A), Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| Anison & Anison [2015] FamCA 973 Anison & Anison [2018] FamCA 113 Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35 Browne v Green (2002) FLC 93-115; [2002] FamCA 791 Harris and Harris (1991) FLC 92-254; [1991] FamCA 124 Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4 |
| APPELLANT: | Mr Anison |
| RESPONDENT: | Ms Anison |
| FILE NUMBER: | BRC | 1827 | of | 2013 |
| APPEAL NUMBER: | NOA | 93 | of | 2018 |
| DATE DELIVERED: | 21 June 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Aldridge, Kent & Austin JJ |
| HEARING DATE: | 20 June 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 September 2018 |
| LOWER COURT MNC: | [2018] FamCA 748 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Alexander |
| SOLICITOR FOR THE APPELLANT: | Evans Brandon Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr S. Williams QC |
| SOLICITOR FOR THE RESPONDENT: | Wiltshire Family Law |
Orders
That the appeal be allowed…
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- AGLC
- Anison & Anison [2019] FamCAFC 108
- Case
- [2019] FamCAFC 108
- Decision Date
CaseChat Overview and Summary
The appeal raised questions about the meaning of "wholly unsuccessful" and whether the trial judge correctly exercised the discretion to make the costs orders. Both parties agreed that if the appeal succeeded, the Full Court should re-exercise the discretion. They also agreed to rely on the material already filed before the trial judge and did not seek to place any further evidence before the Court. The husband contended that he should not be ordered to pay the wife's costs of an application in a case where she had an obvious claim for spousal maintenance and litigation funding. The wife argued that there should be no order as to costs in relation to the substantive proceedings. Both parties granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal, as it succeeded on an error of law.
The appeal was allowed in part, with Order 3 of the trial judge's orders set aside. The Court granted a costs certificate to the husband under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), as it would be appropriate for the Attorney-General to authorise a payment to the husband in respect of the costs incurred by him in relation to the appeal. The Court also granted a costs certificate to the wife under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), as it would be appropriate for the Attorney-General to authorise a payment to the wife in respect of the costs incurred by her in relation to the appeal. The form of the order is subject to the entry of the order in the Court's records.
Orders
Orders of the court
1.
That the appeal be allowed in part.
2.
That Order 3 of the orders made by the trial judge on 21 September 2018 be set aside.
3.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal.
4.
The Court grants to the respondent wife 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal.
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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