Attaway and Balloch
[2020] FamCAFC 43
•5 March 2020
FAMILY COURT OF AUSTRALIA
| ATTAWAY & BALLOCH | [2020] FamCAFC 43 |
| FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Appeal allowed – Error of law – Costs certificates ordered for both parties in relation to the appeal. |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| Attaway & Balloch [2019] FamCAFC 206 |
| APPELLANT: | Ms Attaway |
| RESPONDENT: | Mr Balloch |
| FILE NUMBER: | NCC | 1081 | of | 2019 |
| APPEAL NUMBER: | EA | 105 | of | 2019 |
| DATE DELIVERED: | 5 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | Heard by way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 October 2019 |
| LOWER COURT MNC: | [2019] FCCA 2921 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kelly |
| SOLICITOR FOR THE APPELLANT: | Derham Houston Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Otrebski |
| SOLICITOR FOR THE RESPONDENT: | Mastronardi Legal Pty Ltd |
Orders
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to 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 the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to 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 the respondent in relation to the appeal.
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 Attaway & Balloch 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 105 of 2019
File Number: NCC 1081 of 2019
| Ms Attaway |
Appellant
And
| Mr Balloch |
Respondent
REASONS FOR JUDGMENT
On 24 October 2019, the appeal in this matter was allowed.
At the appeal hearing, the parties sought the opportunity to make written submissions as to costs and on 7 November 2019 orders were made to that effect. The appellant’s written submissions were filed on 5 December 2019 and the respondent’s written submissions in reply were filed on 20 December 2019. The appellant was given the opportunity to file submissions in reply on or before 26 December 2019 but no further written submissions were received from her.
Neither party seeks an order that the other pay his or her costs of the appeal. Each party seeks a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) in relation to the appeal.
I accept that the primary judge made an error of law, in that her Honour failed to take into account two relevant considerations, as set out in the primary reasons for judgment (Attaway & Balloch [2019] FamCAFC 206).
I am satisfied that it is appropriate, therefore, to grant both parties costs certificates under the Costs Act for the appeal.
I do not overlook the submission made by the appellant that the respondent should not receive a costs certificate. I simply do not accept it. The appellant can have no interest in the issue as to whether the respondent should obtain a costs certificate or not.
There will, therefore, be orders for costs certificates for both parties in relation to the appeal.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 5 March 2020.
Associate:
Date: 5 March 2020
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