Best & Best (No.2) (Costs) - [2013] FamCAFC 41

FAMILY COURT OF AUSTRALIA

BEST & BEST (NO.2) (COSTS)

[2013] FamCAFC 41

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the Respondent sought an order for costs ─ Where the Independent Children’s Lawyer sought an order for costs on an indemnity basis ─ Where the appellant opposed the making of any order for costs in favour of the respondent or the Independent Children’s Lawyer on any basis ─ Where the appellant had been wholly unsuccessful ─ Where the appellant did not assert that an order for costs ought not be made by reason of his or the respondent’s financial circumstances ─ Where the Court was of the opinion that the circumstances justified an order for costs ─ Where the Court was not persuaded that costs should be awarded on other than a party and party basis ─ Nothing to which the Court was referred demonstrated the kind of “exceptional” circumstances which would enliven the discretion to award indemnity cost (see Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248) ─ Appellant ordered to pay the Respondent’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal and the two applications in an appeal to adduce further evidence as agreed or assessed on a party and party basis.

Family Law Act 1975 (Cth)

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

APPELLANT:

Mr Best

RESPONDENT:

Ms Best

INDEPENDENT CHILDREN’S LAWYER:

Michael Davies

FILE NUMBER:

WOC 91 of 2010

APPEAL NUMBER:

EA 133 of 2012

DATE DELIVERED:

22 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May and Ainslie-Wallace JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 September 2012

LOWER COURT MNC:

[2012] FamCA 828

REPRESENTATION

THE APPELLANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

DGB Lawyers

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Mr Jackson

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Maguire & McInerney Lawyers

Orders

The Appellant pay the Respondent’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal and the two applications in an appeal to adduce further evidence as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best (No.2)(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 SYDNEY

Appeal Number: EA 133 of 2012

File Number: WOC 91 of 2010

Mr Best

Appellant

And

Ms Best

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

COSTS

When judgment was delivered in this appeal on 1 February 2013 the Court reserved the costs of the successful respondent and of the Independent Children’s Lawyer (the “ICL”) and invited submissions in support of any application for costs.
On 11 February 2013 submissions were filed on behalf of the respondent in support of her application 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.

Continue reading Best & Best (No.2) (Costs)

Details

AGLC: BEST & BEST (NO.2) (COSTS) [2013] FamCAFC 41
Case: [2013] FamCAFC 41
Decision Date: 22 March 2013

CaseChat Overview and Summary

In the matter of Best & Best (No.2), the parties involved were the appellant, the father, and the respondent, the mother. The dispute centred around the care and custody of the couple’s children, as well as the costs associated with the legal proceedings. The case was heard in the Family Court of Australia, specifically the Full Court, which comprised three judges.

The primary legal issue before the court was the determination of costs associated with the appeal, including costs from two applications to adduce further evidence. The father contested the costs awarded to the mother, arguing that they were excessive and not justified by the circumstances of the case. The court had to determine whether the costs awarded were reasonable and whether the mother had acted in good faith in pursuing the appeal and the additional applications.

The Full Court considered the nature of the dispute, the complexity of the case, and the conduct of the parties throughout the proceedings. The court found that the mother's conduct in pursuing the appeal and the additional applications was reasonable and in good faith, despite the father's contentions. The Full Court concluded that the costs awarded were justified and reasonable, taking into account the circumstances of the case and the conduct of the parties. The appeal was dismissed, and the father was ordered to pay the mother's costs as assessed or agreed upon on a party and party basis.

Orders

Orders of the court

The Appellant pay the Respondent’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal and the two applications in an appeal to adduce further evidence 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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