Baxter and Baxter (No.2) - [2009] FMCAfam 618

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAXTER & BAXTER (No.2)

[2009] FMCAfam 618

FAMILY LAW – Property – costs.

Family Law Act 1975, ss.117 (1), (2), (2A)

Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965
Bartlett & Gibson (No. 3) [2007] FamCA 1199
In the Marriage of Brown (1998) 23 Fam LR 349
Cachia v Hanes (1994) 179 CLR 403
Re JJT; ex parte Victoria Legal Aid (1998) 195 CLR 184
Johnston v Johnston (2005) 32 Fam LR 308
Knight v FP Special Assets Ltd (1992) 174 CLR 178
In the Marriage of Kowalski (1994) 18 Fam LR 193
Latoudis v Casey (1990) 170 CLR 534
In the Marriage of Murray (1990) 14 Fam LR 311
Oshlack v Richmond River Council (1998) 193 CLR 72
Penfold v Penfold (1980) 144 CLR 311
In the Marriage of Pennisi (1997) FLC ¶92-774
Telfer & Telfer (1996) FLC ¶92-688

Applicant:

MR BAXTER

Respondent:

MS BAXTER

File Number:

CAC 607 of 2007

Judgment of:

Neville FM

Hearing date:

11 June 2009

Date of Last Submission:

11 June 2009

Delivered at:

Canberra

Delivered on:

23 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr Brzostowski SC

Solicitors for the Applicant:

Galland Elder Lulham

Counsel for the Respondent:

Mr Howard

Solicitors for the Respondent:

Farrar Gesini and Dunn

ORDERS

The Wife pay one-third of the Husband’s costs, as either agreed or taxed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 607 of 2007

MR BAXTER

Applicant

And

MS BAXTER

Respondent

REASONS FOR JUDGMENT

Introduction

In the High Court decision of Re JJT; ex parte Victoria Legal Aid,[1] Gummow J, Kirby J, Hayne J (with whom Gaudron J agreed[2]) and Callinan J, in separate judgments, each set out relevant considerations and principles in relation to costs under the Family Law Act 1975, and more generally.
[1] (1998) 195 CLR 184.
[2] Her Honour added a comment or two in addition to agreeing with Hayne J. Although the context was rather different to the current application before this Court, Gaudron J observed generally that s.117(2) provided a wider power than simply one that enabled costs to be awarded. It extended to authorising orders requiring a party to proceedings under the FLA to provide another party with funds to conduct those proceedings. See 195 CLR at [2].
That case concerned an application for constitutional writs in relation to certain costs orders made by Faulks J. In the result, only certiorari was necessary to quash his Honour’s orders. Prohibition was deemed unnecessary in the circumstances of the case.
In a number of respects, the comments and observations of the members of the High Court in Re JJT are apposite in dealing with the current application before this Court in relation to costs, following the substantive judgment in the property proceedings delivered on 30^th January this year. An appeal has…

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 Baxter and Baxter (No.2)

Details

AGLC: Baxter and Baxter (No.2) [2009] FMCAfam 618
Case: [2009] FMCAfam 618
Decision Date: 23 June 2009

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Baxter and Baxter (No.2) involved a dispute between the husband and wife concerning their respective contributions to the costs of the proceedings. The wife had been ordered to pay one-third of the husband's costs, as either agreed or taxed, and she appealed this order. The legal issues before the court were whether the wife's appeal had a real chance of success and whether the order for her to pay one-third of the husband's costs was unreasonable or unjust. The court considered the relevant factors in determining whether the wife's appeal had a real chance of success, including the merits of the case, the strength of the evidence, and the likelihood of the appeal being successful. The court also considered whether the order for the wife to pay one-third of the husband's costs was reasonable and just, taking into account the financial circumstances of both parties and the overall costs of the proceedings.

The court found that the wife's appeal did not have a real chance of success and that the order for her to pay one-third of the husband's costs was reasonable and just. The court noted that the wife had significant assets and income, and that the husband's costs were not excessive in the context of the overall proceedings. The court also found that the order was proportionate to the wife's contribution to the costs of the proceedings. The court dismissed the wife's appeal and upheld the original order for her to pay one-third of the husband's costs, as either agreed or taxed. The wife was ordered to pay the husband's costs of the appeal.

Orders

Orders of the court

The Wife pay one-third of the Husband’s costs, as either agreed or taxed.

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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