Baranski & Baranski & Anor (Costs) - [2012] FamCAFC 76

FAMILY COURT OF AUSTRALIA

BARANSKI & BARANSKI AND ANOR (COSTS)

[2012] FamCAFC 76

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the husband’s appeal was “wholly unsuccessful” before this Court ─ Where the wife had no alternative than to resist the husband’s appeal, and that she did so successfully at considerable expense ─ Whilst arguments of substance were raised on behalf of the husband before this Court, the likelihood of success was always limited having regard to the principles governing his appeal, particularly given the nature of a number of the challenges raised on his behalf ─ Where the financial implications of making a costs order ought not, in our view, disentitle the wife for an order for costs if such an order is otherwise justified ─ Husband ordered to pay two thirds of the wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis

Family Law Act 1975 (Cth) s 117(2A)

AMS v AIF (1999) 199 CLR 160
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Lovell & Lovell (1950) 81 CLR 513
Penfold v Penfold (1980) 144 CLR 311

APPELLANT:

Mr Baranski

FIRST RESPONDENT:

Ms S Baranski

SECOND RESPONDENT:

Mrs V Baranski

INDEPENDENT CHILDREN’S LAWYER:

Robert Wayne Winter

FILE NUMBER:

ADC

2182

2008

APPEAL NUMBER:

SOA

2010

DATE DELIVERED:

8 June 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

Bryant CJ, Coleman & Ainslie-Wallace JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

1 September 2010

LOWER COURT MNC:

[2010] FMCAfam 918

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Shaw QC with Ms West

SOLICITOR FOR THE APPELLANT:

Fittock Barristers & Solicitors

COUNSEL FOR THE FIRST RESPONDENT:

Ms Pyke QC

SOLICITOR FOR THE FIRST

RESPONDENT:

Ann Josephson Lawyers

SOLICITOR FOR THE SECOND

RESPONDENT:

Jo-Anne N Milen & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That the husband pay two thirds (2/3) of the wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baranski & Baranski and Anor (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 74 of 2010

File Number: ADC 2182 of 2008

Mr Baranski

Appellant

And

Ms S Baranski

First Respondent

And

Mrs V Baranski

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

COSTS

On 10 February 2012, for reasons which it then published, the Court dismissed the husband’s appeal against orders made by Federal Magistrate Brown in parenting proceedings between the parties. The costs of the appeal were then reserved.
On 7 March 2012 submissions were filed on behalf of the first…

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: Baranski & Baranski & Anor (Costs) [2012] FamCAFC 76
Case: [2012] FamCAFC 76
Decision Date: 8 June 2012

CaseChat Overview and Summary

The case involved the parties Baranski and Baranski, who were spouses engaged in a legal dispute over costs associated with an appeal. The matter was heard by the court, which needed to decide on the allocation of costs between the husband and wife. The central issue was the division of responsibility for the costs of the appeal, which both parties had contested.

The court addressed the allocation of costs by considering the respective contributions and conduct of the parties during the appeal process. It examined the agreed or assessed costs on a party and party basis, as stipulated in the orders. The court's reasoning focused on the fairness and reasonableness of the division of costs, taking into account the overall circumstances of the case and the legal arguments presented by both parties.

Ultimately, the court determined that the husband should bear two-thirds of the wife’s costs of and incidental to the appeal. This decision was made based on the agreed or assessed costs on a party and party basis, as outlined in the orders. The court's decision was final, and the orders reflect the court's determination on the allocation of costs between the parties.

Orders

Orders of the court

That the husband pay two thirds (2/3) of the wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

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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