Burns and Grint (Costs) - [2014] FamCAFC 161

FAMILY COURT OF AUSTRALIA

BURNS & GRINT (COSTS)

[2014] FamCAFC 161

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the mother seeks costs in the sum of $5,274.50 – where the father opposes the mother’s application and seeks an order that each party bear their own costs – where the father has been wholly unsuccessful – where the mother was represented by Legal Aid Queensland and has incurred costs she should not have been required to – costs ordered as sought by the mother.

Family Law Act 1975 (Cth) s 117

APPLICANT:

Ms Grint

RESPONDENT:

Mr Burns

FILE NUMBER:

BRC

8404

2010

APPEAL NUMBER:

2012

DATE DELIVERED:

2 September 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

In Chambers

JUDGMENT OF:

Finn, Strickland & Hogan JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

20 April 2012

LOWER COURT MNC:

[2012] FMCAfam 347

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Walker-Munro

SOLICITOR FOR THE APPLICANT:

Legal Aid Queensland

THE RESPONDENT:

In person

Orders

The father pay the costs of the mother of and incidental to the application for leave to appeal fixed in the sum of $5,274.50.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burns & Grint (Costs) has been approved by the Chief Justice 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 43 of 2012
File Number: BRC 8404 of 2010

Ms Grint

Applicant

And

Mr Burns

Respondent

REASONS FOR JUDGMENT

Introduction

On 28 March 2014 we made orders dismissing the application for leave to appeal filed by the father, and we published our reasons for judgment.
On 23 April 2014 the mother filed an application in an appeal seeking an order that the father pay her costs of the application for leave to appeal, in the amount of $5,274.50.
On 11 June 2014 the father filed a response opposing the application and seeking an order that each party bear their own costs.
The mother filed an affidavit in support of her application as well as providing written submissions. The father has filed two affidavits which also effectively comprise his written submissions.

The Relevant legislation

Costs orders are governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”), and that section relevantly provides as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what…

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 Burns and Grint (Costs)

Details

AGLC: Burns and Grint (Costs) [2014] FamCAFC 161
Case: [2014] FamCAFC 161
Decision Date: 2 September 2014

CaseChat Overview and Summary

The case between Burns and Grint was heard in the Family Court of Australia. The father, Burns, sought leave to appeal a decision concerning the care of his two children. The mother, Grint, opposed the appeal, leading to a dispute over the costs associated with the application for leave to appeal. The court was tasked with determining the appropriate allocation of costs.

The primary legal issue before the court was whether the father's application for leave to appeal was sufficiently meritorious to warrant an order for the mother to pay the costs. The court needed to assess the prospects of success of the appeal and whether the application had any reasonable grounds. Additionally, the court had to consider the fairness of imposing costs on the mother, particularly given the nature of the application and the outcome of the original decision.

The court found that the father's application for leave to appeal was not sufficiently meritorious. The appeal had little chance of success, and the application lacked reasonable grounds. Consequently, the court ruled that the mother should not be ordered to pay the costs of the application. Instead, the court ordered the father to pay the costs of the mother's opposition to the application for leave to appeal, amounting to $5,274.50. This decision was based on the assessment that the father's application was not warranted and the need to ensure fairness in the allocation of costs.

Orders

Orders of the court

The father pay the costs of the mother of and incidental to the application for leave to appeal fixed in the sum of $5,274.50.

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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