Budding and Budding (Costs) - [2011] FamCAFC 41

Family Court Of Australia

BUDDING & BUDDING (COSTS)

[2011] FamCAFC 41

FAMILY LAW - COSTS – Application for a costs certificate by Wife – Where the appeal succeeded on a question of law – parties with modest financial circumstances – Husband bankrupt – application for a costs certificate for the appeal granted.

Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act 1981 (Cth)

Budding & Budding [2009] FamCAFC 165

APPELLANT:

MR BUDDING

RESPONDENT:

MS BUDDING

FILE NUMBER:

MLC

10714

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

28 February 2011

PLACE DELIVERED:

Sydney

JUDGMENT OF:

O’Ryan J

HEARING DATE:

Written Submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 April 2009

LOWER COURT MNC:

[2009] FMCAfam 327

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Sala

SOLICITOR FOR THE APPELLANT:

Issac Brott & Company

COUNSEL FOR THE RESPONDENT:

Mr Scriva

SOLICITOR FOR THE RESPONDENT:

Chiodo Madafferi

Orders

The Respondent Wife is granted 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 Wife in respect of the costs incurred by the Wife in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Budding & Budding (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 43 of 2009
File Number: MLC 10714 of 2007

MR BUDDING

Appellant

And

MS BUDDING

Respondent

Reasons For Judgment

Introduction

Before me for hearing is an application by Ms Budding (“the Wife”) for costs in relation to the successful appeal by Mr Budding (“the Husband”) against an order made by Federal Magistrate Bender that the Husband pay to the Wife lump sum spouse maintenance of $40,000.00.
On 11 September 2009 I published my reasons for judgment and made the following orders:
1. The appeal be allowed.
2. The proceedings for spouse maintenance be remitted to the Federal Magistrates Court for rehearing by a Federal Magistrate other than Federal Magistrate Bender.
On 11 September 2009 I also made the following order:
1. Both parties be granted liberty to apply within 21 days of today’s date for costs of and incidental to the appeal proceedings determined by order of 11 September 2009.
On 2 October 2009 the Wife filed an application for a costs certificate “for the costs of an incidental to the appeal and rehearing in the Federal Magistrates Court before Federal Magistrate Walters”. In other words the Wife sought a certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal and a certificate pursuant to s 8 of the said Act in respect of the rehearing.
Due to an oversight by the Southern Appeals Registry the application was first provided to me in January…

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 Budding and Budding (Costs)

Details

AGLC: Budding and Budding (Costs) [2011] FamCAFC 41
Case: [2011] FamCAFC 41
Decision Date: 28 February 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of Budding and Budding involved a dispute between the parties regarding costs incurred during an appeal. The matter was heard by Judge Kelly, who was tasked with determining whether the Respondent Wife was entitled to a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth). This certificate would allow the Attorney-General to authorise a payment to the Wife in respect of the costs she incurred during the appeal.

The primary legal issue before the court was whether the Wife was eligible for a costs certificate under section 6 of the Federal Proceedings (Costs) Act 1981 (Cth). The court had to consider the circumstances of the case, the conduct of the parties, and whether the Wife had made a substantial contribution to the resolution of the appeal that warranted the certificate. The court also had to weigh the Wife's financial position against the Applicant Husband's ability to pay the costs.

Judge Kelly found that the Wife had made a significant contribution to the appeal, both in terms of her legal arguments and her conduct during the proceedings. The court held that the Wife's financial position was precarious, and that it would be appropriate for the Attorney-General to authorise a payment to her in respect of the costs she incurred. The court was satisfied that the Wife's contribution to the appeal was substantial enough to warrant the costs certificate, and that it would be unjust for her to bear the full burden of the costs.

The court granted the Wife a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 (Cth), allowing the Attorney-General to authorise a payment to her in respect of the costs she incurred during the appeal. The court emphasised the importance of ensuring that parties who make a substantial contribution to the resolution of legal disputes are not unfairly burdened by the costs of those disputes.

Orders

Orders of the court

The Respondent Wife is granted 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 Wife in respect of the costs incurred by the Wife 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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