Brennan and Shaw (Costs) - [2010] FamCAFC 152

FAMILY COURT OF AUSTRALIA

BRENNAN & SHAW (COSTS)

[2010] FamCAFC 152

FAMILY LW - APPEAL – COSTS – Application in an Appeal – Extension of time – Where appeal deemed abandoned – Where application for costs not filed in accordance with rules –Where failure to grant an extension of time will not work an injustice – Application dismissed.

FAMILY LAW - APPEAL – COSTS – Where in the circumstances there should be a departure from s 117(1) of the Family Law Act 1975 (Cth) – Where the mother was unsuccessful in respect of the appeal – Where the mother has the capacity to meet the costs orders sought – Where the quantum of costs sought is not excessive – Mother to pay the father’s costs of the stay appeal.

Family Law Act 1975 (Cth) – s 117
Family Law Rules 2004 – r 1.14, r 22.43

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123

APPELLANT:

Ms Brennan

RESPONDENT:

Mr Shaw

FILE NUMBER:

SYF

3250

2006

FIRST APPEAL NUMBER:

2008

SECOND APPEAL NUMBER:

102

2008

DATE DELIVERED:

20 August 2010

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Bryant CJ, Boland & Stevenson JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 August 2008
3 September 2008

LOWER COURT MNC:

[2008] FamCA 656
[2008] FamCA 744

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Ms Brennan in person

COUNSEL FOR THE RESPONDENT:

Mr Watkins

Orders

The father’s application for an extension of time in which to seek costs in appeal no. EA 97 of 2008 is dismissed.
The mother pay the father’s costs of the stay appeal (EA 102 of 2008) in the sum of $2,233.00 unless otherwise agreed such costs to be paid within 28 days of the date of this order.

IT IS NOTED that publication of this judgment under the pseudonym Brennan & Shaw (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 SYDNEY

Appeal Number: EA 97 of 2008; EA 102 of 2008
File Number: SYF 3250 of 2006

Ms Brennan

Appellant

And

Mr Shaw

Respondent

REASONS FOR JUDGMENT

Introduction

On 9 June 2009 Mr Shaw (“the father”) filed an Application in an Appeal (Appeal EA 97 of 2008). In his application the father sought an extension of time in which to bring an application for costs, and an order that Ms Brennan (“the mother”) pay his costs in the sum of $2,253.20 or as assessed. Appeal EA 97 of 2008 was an appeal filed by the mother against parenting orders made by Fowler J, but which became abandoned under the Family Law Rules 2004 (“the rules”) because the mother did not file her appeal book. For convenience, in these reasons we will refer to this appeal as “the substantive appeal”.
Shortly after she filed the substantive appeal, the…

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 Brennan and Shaw (Costs)

Details

AGLC: Brennan and Shaw (Costs) [2010] FamCAFC 152
Case: [2010] FamCAFC 152
Decision Date: 20 August 2010

CaseChat Overview and Summary

In the matter of Brennan and Shaw, the Family Court of Australia dealt with an application for costs in the context of a family law appeal. The father sought an extension of time to file an application for costs in the initial appeal (appeal no. EA 97 of 2008) and subsequently sought costs in a stay appeal (appeal no. EA 102 of 2008). The mother opposed the father's applications. The legal issues before the court were whether to grant the extension of time for the initial appeal costs application and whether to order the mother to pay the father's costs of the stay appeal.

The court determined that the initial appeal had been deemed abandoned, and the father's application for costs was not filed in accordance with the rules. The court also noted that the failure to grant an extension of time would not result in an injustice. Consequently, the application for an extension of time was dismissed. Regarding the stay appeal costs, the court found that the mother was unsuccessful in her appeal and had the capacity to meet the costs order. The quantum of costs sought by the father was deemed not excessive. Therefore, the court ordered the mother to pay the father's costs of the stay appeal in the sum of $2,233.00 unless otherwise agreed, with payment to be made within 28 days of the date of the order.

Orders

Orders of the court

The father’s application for an extension of time in which to seek costs in appeal no. EA 97 of 2008 is dismissed.

The mother pay the father’s costs of the stay appeal (EA 102 of 2008) in the sum of $2,233.00 unless otherwise agreed such costs to be paid within 28 days of the date of this order.

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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