Batey-Elton & Elton (Costs) - [2010] FamCAFC 219

FAMILY COURT OF AUSTRALIA

BATEY-ELTON & ELTON (COSTS)

[2010] FamCAFC 219

FAMILY LAW - APPEAL – COSTS OF DISQUALIFICATION APPEAL – Appellant wife wholly unsuccessful in the appeal – Where wife did not file any submissions – Consideration of Fitzgerald (as a child representative for A (Legal Aid Commission of Tasmania)) v Fish & Another (2005) 33 Fam LR 123 – The wife to pay the husband’s costs of and incidental to appeal.

FAMILY LAW - APPEAL – COSTS OF BIAS AND INJUNCTION APPEAL – Appellant wife substantially unsuccessful in the appeal – Where wife did not file any submissions – Where appeal allowed in part – The wife to pay two-thirds of the husband’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth) s117

Damjanovic v Maley (2002) 55 NSWLR 149; (2002) 195 ALR 256
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Another (2005) 33 Fam LR 123
McAlpin & McAlpin (1993) FLC 92-411
Re P (a child): Separate Representative (1993) FLC 92-376
Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029

APPELLANT:

Ms Batey-Elton

RESPONDENT:

Mr Elton

FILE NUMBER:

TVF

2250

2004

FIRST APPEAL NUMBER:	NA	19	of	2010
SECOND APPEAL NUMBER:	NA	41	of	2010

DATE DELIVERED:

4 November 2010

PLACE DELIVERED:

Sydney

JUDGMENT OF:

May, Boland & Strickland JJ

HEARING DATE:

By way of written submissions filed 13 May 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 February 2010 and 15 February 2010

LOWER COURT MNC:

[2010] FamCA 106, [2010] FamCA 107, [2010] FamCA 266 and [2010] FamCA 271

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Ms Batey-Elton in person

COUNSEL FOR THE RESPONDENT:

Mr Page SC

SOLICITOR FOR THE RESPONDENT:

Rod Madsen Solicitor

Orders

The wife pay the husband’s costs of and incidental to appeal number NA 19 of 2010 as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
The wife pay two-thirds of the husband’s costs of and incidental to appeal number NA 41 of 2010 as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 19 of 2010; NA 41 of 2010
File Number: TVF 2250 of 2004

Ms Batey-Elton

Appellant

And

Mr Elton

Respondent

REASONS FOR JUDGMENT

Introduction

On 23 April 2010 we delivered our reasons in respect of two appeals filed by Ms Batey-Elton against orders made by Cronin J on 11 February 2010 and 15 February 2010 and two applications in those appeals. Mr Elton resisted both appeals and the applications in those appeals.
Although the parties have been divorced for a number of years in these reasons, as in our substantive reasons, we will, for…

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

Case: [2010] FamCAFC 219
Decision Date: 4 November 2010

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Batey-Elton & Elton was before the court to determine the costs associated with two separate appeals. The first appeal, NA 19 of 2010, was an appeal regarding the costs of disqualification, while the second, NA 41 of 2010, involved a bias and injunction appeal. The wife, the appellant in both cases, was wholly unsuccessful in the first appeal and substantially unsuccessful in the second. Notably, she did not file any submissions in either appeal.

The court was tasked with determining the appropriate costs to be awarded to the husband in relation to each appeal. The primary legal issue was the extent to which the wife should be liable for the costs given her lack of participation and the outcomes of the appeals. The court considered the precedent set in Fitzgerald (as a child representative for A (Legal Aid Commission of Tasmania)) v Fish & Another (2005) 33 Fam LR 123, which provided guidance on costs in cases where the appellant did not engage in the proceedings.

The court found that the wife should be held responsible for the husband's costs in both appeals. Given her complete lack of success in the disqualification appeal and the absence of submissions, the court ordered her to pay all the husband's costs of and incidental to the appeal. In the bias and injunction appeal, where she was substantially unsuccessful, the court ordered her to pay two-thirds of the husband's costs. The reasoning was that her lack of participation in the proceedings justified a significant costs order against her.

The final orders of the court were that the wife should pay the husband's costs of and incidental to the disqualification appeal in full and two-thirds of the costs of and incidental to the bias and injunction appeal. These costs were to be assessed under Chapter 19 of the Family Law Rules 2004 if the parties could not agree on an amount.

Orders

Orders of the court

The wife pay the husband’s costs of and incidental to appeal number NA 19 of 2010 as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

The wife pay two-thirds of the husband’s costs of and incidental to appeal number NA 41 of 2010 as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

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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