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Booysen & Ferreira

Booysen & Ferreira

Case [2022] FedCFamC2F 1248 14 September 2022

Costs

Appeal

Financial Circumstances

Conduct of the Parties

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Booysen & Ferreira [2022] FedCFamC2F 1248

File number(s): SYC 7307 of 2021

Judgment of: JUDGE KEMP

Date of judgment: 14 September 2022

Catchwords: FAMILY LAW – costs associated with a review application – where costs had been previously ordered – consideration of financial circumstances – where offers were made but not accepted – where neither party was wholly unsuccessful – costs ordered in a fixed sum

Legislation:
Family Law Act1975 (Cth) ss 117

Federal Circuit and Family Court of Australia Act 2021 ss 214 & 223

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sch 3, rr 12.03, 12.08 & 14.05

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 sch 1, r 4.01

Cases cited:
Bolinger v Ivy [2008] FamCA 274

Braithwaite & Braithwaite [2007] FamCA 468

Brown & Brown [1998] FamCA 115

Browne & Green [2002] FamCA 791

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

Collins & Collins (1985) FLC 91-603; [1985] FamCA 15

In the Marriage of Murray [1990] FamCA 112

JEL & DDF (No 2) (2001) FLC 93-083

JJT & Ors, Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44

Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340

Latoudis v Casey(1990) 170 CLR 534

Munday v Bowman (1997) FLC 92-784

Penfold v Penfold (1980) 144 CLR 311

Prantage v Prantage [2013] FamCAFC 105

Robinson & Higginbotham (1991) FLC 92-209

Rouse & Rouse (1981) FLC 91-073

Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029

Division: Division 2 Family Law

Number of paragraphs: 56

Date of last submission/s: 22 April 2022

Date of hearing: In Chambers

Place: Sydney

Solicitor for the Applicant: In Person

Counsel for the Respondent: Ms McCarthy

Solicitor for the Respondent: Petkovic & Todd
ORDERS

SYC 7307 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FERREIRA

Applicant

AND:
MS BOOYSEN

Respondent

order made by:

JUDGE KEMP

DATE OF ORDER:

14 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The father pay the mother’s costs associated with the father’s Application for Review filed on 27 December 2021 in the assessed sum of $3,871.25.
2.The costs the subject of order 1, above, be paid within 90 days of todays’ date.
3.All outstanding applications are, otherwise, dismissed.
4.The matter is, otherwise, removed from the active pending cases list.

THE COURT NOTES THAT:
A.Pursuant to order 1 of the orders made by Senior Judicial Registrar made on 10 December 2021, the Application filed on 15 November 2021 remains permanently stayed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family…

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 Booysen & Ferreira

Details

AGLC: Booysen & Ferreira [2022] FedCFamC2F 1248
Case: [2022] FedCFamC2F 1248
Decision Date

CaseChat Overview and Summary

The case involves the applicant, Mr. Ferreira, and the respondent, Ms. Booysen, who were involved in family law proceedings. The primary dispute is regarding the costs associated with Mr. Ferreira's Application for Review filed on 27 December 2021. The court was required to decide on the appropriate costs order, considering various factors such as financial circumstances, conduct of the parties, offers of settlement, and whether any party was wholly unsuccessful. The court also had to determine whether the costs should be awarded on an indemnity basis or a fixed sum.

Judge Kemp, after considering the submissions of the parties and relevant legal principles, determined that the costs should be awarded on a fixed sum basis. The court took into account the financial circumstances of Mr. Ferreira, who had limited income and had exhausted his savings due to prolonged legal proceedings. The court also considered the conduct of the parties, with Ms. Booysen incurring additional costs due to Mr. Ferreira's further affidavit and the Review application. The court further noted that neither party was wholly unsuccessful, and Mr. Ferreira did not accept Ms. Booysen's offers to settle the costs. Based on these considerations, the court ordered Mr. Ferreira to pay Ms. Booysen's costs in the assessed sum of $3,871.25, to be paid within 90 days.

THE COURT ORDERS THAT: 1. The father pay the mother’s costs associated with the father’s Application for Review filed on 27 December 2021 in the assessed sum of $3,871.25. 2. The costs the subject of order 1, above, be paid within 90 days of today's date. 3. All outstanding applications are, otherwise, dismissed. 4. The matter is, otherwise, removed from the active pending cases list.

Orders