Brady and Brady - [2012] FamCAFC 4

FAMILY COURT OF AUSTRALIA

BRADY & BRADY

[2012] FamCAFC 4

FAMILY LAW – APPEAL – Appeal from a costs order of a Federal Magistrate – Where the wife was ordered to pay $8,000 towards the husband’s costs – Where the costs order was made against the wife as she rejected an offer which appeared comparable to the final orders of the Federal Magistrate

FAMILY LAW – APPEAL – Appeal from a costs order of a Federal Magistrate – Where the wife submitted that the offer was rejected as it could not be accepted as the shares required to be transferred to the husband did not exist and should the wife borrow money to satisfy the asserted value she would receive a proportion of the property pool considerably less than that ultimately ordered – Where the husband’s offer was found not to be the based on a comparison of the property pool – Where the Federal Magistrate made a mistake of fact resulting in an erroneous decision – Appeal allowed

FAMILY LAW – RE-EXERCISE – Where it was apparent that other offers were made and further evidence may be needed to be filed – Matter remitted to the Federal Magistrate for re-hearing

FAMILY LAW – COSTS – Cost certificates granted to each party for the costs of the appeal

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Federal Proceedings (Costs) Act 1981(Cth)

De Winter v De Winter (1979) 4 Fam LR 583
House v R (1936) 55 CLR 499
In the marriage of Greedy (1982) FLC 91-250
In the marriage of Robinson (1991) FLC 92-209

APPELLANT:

Ms Brady

RESPONDENT:

Mr Brady

FILE NUMBER:

BRC

10492

2010

APPEAL NUMBER:

2011

DATE DELIVERED:	23 January 2012
PLACE DELIVERED:	Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

20 January 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

20 September 2011

LOWER COURT MNC:

[2011] FMCAfam 1000

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Reeve

SOLICITOR FOR THE APPELLANT:

Gilfoyle Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Crabb

SOLICITOR FOR THE RESPONDENT:

Schultz Toomey O’Brien Lawyers

Orders

The appeal be allowed.
That part of paragraph 2 of the orders made by Federal Magistrate Baumann made 22 August 2011, as amended on 20 September 2011 ordering the wife to pay a contribution to the husband’s costs fixed in the sum of $8,000 within ninety day be set aside.
The application for costs of the proceedings in the Federal Magistrates Court be remitted for re-hearing before Federal Magistrate Baumann.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to the provisions…

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 Brady and Brady

Details

AGLC: Brady and Brady [2012] FamCAFC 4
Case: [2012] FamCAFC 4
Decision Date: 23 January 2012

CaseChat Overview and Summary

Brady and Brady was an appeal heard by the Full Court of the Family Court of Australia. The case involved a dispute between the parties over the division of property, spousal maintenance, and costs following their divorce. The appeal was brought by the husband against the orders made by Federal Magistrate Baumann, who had ordered the wife to contribute $8,000 to the husband’s costs within ninety days.

The key legal issues before the Court were whether the Federal Magistrate had correctly exercised his discretion in ordering the wife to contribute to the husband’s costs, and whether the application for costs of the proceedings should be remitted for re-hearing. The Court also needed to determine whether costs certificates should be granted to both parties under the Federal Proceedings (Costs) Act 1981.

The Court found that the Federal Magistrate had erred in his exercise of discretion by not adequately considering the wife’s ability to pay the ordered contribution. Consequently, the order for the wife to contribute $8,000 to the husband’s costs was set aside. The Court also held that the application for costs of the proceedings should be remitted for re-hearing, as the Federal Magistrate had not fully considered all relevant factors. In addition, the Court granted costs certificates to both parties, recognising the costs incurred by each in relation to the appeal.

The final orders included allowing the appeal, setting aside the contribution order, remitting the application for costs for re-hearing, and granting costs certificates to both parties under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

The appeal be allowed.

That part of paragraph 2 of the orders made by Federal Magistrate Baumann made 22 August 2011, as amended on 20 September 2011 ordering the wife to pay a contribution to the husband’s costs fixed in the sum of $8,000 within ninety day be set aside.

The application for costs of the proceedings in the Federal Magistrates Court be remitted for re-hearing before Federal Magistrate Baumann.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

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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