Baldwin and Baldwin (Costs) - [2011] FamCAFC 10

FAMILY COURT OF AUSTRALIA

BALDWIN & BALDWIN (COSTS)

[2011] FamCAFC 10

FAMILY LAW - COSTS – Costs of the appeal – No order for costs – Costs certificates awarded to both parties under s 9 and s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).

FAMILY LAW - COSTS – Costs of the first instance property proceedings – where the trial Judge had refused the wife’s application for costs and ordered that there be no order as to costs – where the wife filed but did not prosecute an appeal against the trial Judge’s refusal to order costs – where the husband applied to appeal out of time the trial Judge’s refusal to order costs – where the Court dismissed the husband’s application.

Family Law Act 1975 (Cth)
Family Law Rules 2004
Federal Proceedings (Costs) Act 1981 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Baldwin

RESPONDENT:

Ms Baldwin

FILE NUMBER:

BRC

6089

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

2 February 2011

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Finn, Boland and Thackray JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 February 2009

LOWER COURT MNC:

[2009] FamCA 207

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kirk SC

SOLICITOR FOR THE APPELLANT:

Charles Cooper Lawyers

COUNSEL FOR THE RESPONDENT:

Mr North SC and Ms Brasch

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

That the cross-appeal by the wife filed 30 March 2009 against the order made by the Honourable Justice Bell on 26 February 2009 that there be no order for costs in relation to the first instance proceedings, be dismissed for want of prosecution.
That the husband’s application (as contained in submissions filed on 14 December 2010) for costs of the Appeal No NA 16 of 2009, being the appeal against the orders for property settlement made by the Honourable Justice Bell on 26 February 2009 (the property settlement appeal) be dismissed.
That each party pay his or her own costs of and incidental to the property settlement appeal.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 him in relation to the property settlement appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 her in relation to the property settlement appeal.
That the husband’s application for the costs of the substantive proceedings BRC 6089 of 2007 (as contained…

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 Baldwin and Baldwin (Costs)

Details

AGLC: Baldwin and Baldwin (Costs) [2011] FamCAFC 10
Case: [2011] FamCAFC 10
Decision Date: 2 February 2011

CaseChat Overview and Summary

The case of Baldwin and Baldwin involved a dispute concerning costs within a family law context, specifically focusing on the costs of the appeal and the costs of the first instance property proceedings. The Court of Appeal was tasked with addressing the husband's application for costs of the appeal against the trial judge's refusal to order costs, as well as the wife's cross-appeal against the trial judge's refusal to order costs. The husband's application was made out of time, and the wife's cross-appeal was dismissed for lack of prosecution.

The primary legal issues before the Court were whether the husband's out-of-time application for costs of the appeal should be allowed and whether the wife's cross-appeal should proceed. The Court also needed to determine the appropriate costs orders for both the appeal and the first instance proceedings. The issues turned on the interpretation and application of the relevant statutory provisions and the principles governing costs in family law matters.

The Court found that the husband's application for costs of the appeal was dismissed, as it was filed out of time and without justification. The Court also dismissed the wife's cross-appeal for want of prosecution, as she had filed the cross-appeal but did not pursue it. The Court further determined that each party should bear their own costs for the appeal, and granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981. This meant that the Court considered it appropriate for the Attorney-General to authorise payments to both parties for the costs they incurred in relation to the property settlement appeal.

In conclusion, the Court dismissed both the husband's application for costs of the appeal and the wife's cross-appeal. Each party was ordered to pay their own costs for the appeal, and costs certificates were granted to both parties under the relevant Act. The Court's decision emphasised the importance of timely and diligent prosecution of appeals and the application of appropriate statutory provisions in determining costs in family law matters.

Orders

Orders of the court

That the cross-appeal by the wife filed 30 March 2009 against the order made by the Honourable Justice Bell on 26 February 2009 that there be no order for costs in relation to the first instance proceedings, be dismissed for want of prosecution.

That the husband’s application (as contained in submissions filed on 14 December 2010) for costs of the Appeal No NA 16 of 2009, being the appeal against the orders for property settlement made by the Honourable Justice Bell on 26 February 2009 (the property settlement appeal) be dismissed.

That each party pay his or her own costs of and incidental to the property settlement appeal.

That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 him in relation to the property settlement appeal.

That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 her in relation to the property settlement appeal.

That the husband’s application for the costs of the substantive proceedings BRC 6089 of 2007 (as contained in submissions filed by the husband on 14 December 2010) be dismissed.

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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