Brodie and Brodie

[2009] FamCAFC 162

FAMILY COURT OF AUSTRALIA

BRODIE & BRODIE [2009] FamCAFC 162

FAMILY LAW – APPEAL – COSTS – Costs certificates granted

Federal Proceedings (Costs) Act1981 (Cth)

APPELLANT: Mr Brodie

RESPONDENT: Mrs Brodie

FILE NUMBER: BRF 953 of 2006

APPEAL NUMBER: NA 14 of 2008

DATE DELIVERED: 9 September 2009

PLACE DELIVERED: Perth

JUDGMENT OF: Boland, Thackray and Watts JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 25 January 2008

LOWER COURT MNC: [2008] FamCA 26

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kirk SC

SOLICITOR FOR THE APPELLANT: Hopgood Ganim Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Cooper of
Charles Cooper Lawyers

Orders

1. That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 him in relation to the appeal.

2. That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 her in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Brodie & Brodie (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 BRISBANE

Appeal Number: NA 14 of 2008
File Number: BRF 953 of 2006

Mr Brodie

Appellant

And

Mrs Brodie

Respondent

REASONS FOR JUDGMENT

Introduction  

1. On 22 January 2009 we delivered reasons for judgment and made orders allowing an appeal by the husband against property orders made by Carmody J on 25 January 2008.  At that time, we made orders that the parties file written submissions in respect of costs of the appeal.

2. The husband and the wife filed written submissions in February 2009 in which, inter alia, both sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

3. Subsequently we were advised by the Appeal Registrar on 3 June 2009 that the parties had reached agreement in respect of property adjustment.  We were provided with a document signed by the parties and their solicitors (undated) addressed to the Appeal Registrar in the following terms:

   I [Mr Brodie] / [Mrs Brodie], confirm that I have reached agreement as to final property adjustment with respect to proceedings number BRF 953 of 2006, which was remitted for re-hearing following proceedings number NA 14 of 2008.

   A Costs Certificate has been sought on my behalf.

   As part of agreement for final property adjustment, it is agreed that no party will pursue costs against any other party relating to the appeal proceedings, number NA 14 of 2008.

   I continue to seek a Costs Certificate for the Appeal.

   …………….[signed]……………….

   [Mr Brodie] / [Mrs Brodie]   

4. We have treated this request to the Appeal Registrar as an application for costs certificates pursuant to s 6 and s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

5. In our reasons for judgment published on 22 January 2009 we found errors of law by the trial Judge who, inter alia, identified but failed to deal with a discretionary trust. We also determined the trial Judge’s assessment of the parties’ contributions was plainly wrong and that when making an order for lump sum spousal maintenance, the trial Judge erred in failing to have regard to the property adjustment he had ordered in the wife’s favour.

6. In these circumstances, there were errors of law by the trial Judge.  We are satisfied it would be proper to order that the parties receive costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:              9 September 2009