Cooper and Kingsley - [2014] FamCAFC 205

FAMILY COURT OF AUSTRALIA

COOPER & KINGSLEY

[2014] FamCAFC 205

FAMILY LAW – COSTS – Where the appeal was conceded – Where the parties applied for costs certificates pursuant to sections 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Whether the appeal succeeded on an error of law – Where the primary judge failed to consider sections 72 and 75(2) of the Family Law Act 1975 (Cth) and where the reasons were inadequate – Error of law established– Costs certificates ordered.

Family Law Act 1975 (Cth): ss 72, 75
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 9

B & B (Costs Certificates) (2007) FLC 93-339

APPELLANT:

Mr Cooper

RESPONDENT:

Ms Kingsley

FILE NUMBER:

NCC

3131

2011

APPEAL NUMBER:

2013

ORDERS MADE:

16 October 2014

DATE DELIVERED:

22 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie Wallace, Ryan & Watts JJ

HEARING DATE:

16 October 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 May 2013

LOWER COURT MNC:

[2013] FCCA 277

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Greg Levick

SOLICITOR FOR THE APPELLANT:

Attwaters

COUNSEL FOR THE RESPONDENT:

Michael Bateman

SOLICITOR FOR THE RESPONDENT:

Hunter Family Law Centre

Orders made 16 october 2014

That the Court grants to the appellant a costs certificate pursuant to the provisions 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.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 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 respondent in respect of the costs incurred by her in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cooper & Kingsley 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 SYDNEY

Appeal Number: EA 60 of 2013
File Number: NCC 3131 of 2011

Mr Cooper

Appellant

And

Ms Kingsley

First Respondent

And

Child Support Registrar

Second Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 16 October 2013 Mr Cooper (“the father”) appealed orders made by Judge Myers on 13 May 2013. The orders discharged, as at 13 May 2013, spousal maintenance and child maintenance orders made on 16 January 1989. An amount of $35,000 which his Honour found was held by the Child Support Agency (“CSA”) was ordered to be paid in reduction of child maintenance and spousal maintenance arrears. Upon payment all outstanding arrears were reduced to nil. Only $25,000 was held…

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 Cooper and Kingsley

Details

AGLC: Cooper and Kingsley [2014] FamCAFC 205
Case: [2014] FamCAFC 205
Decision Date: 22 October 2014

CaseChat Overview and Summary

The Family Court of Australia dealt with an appeal brought by Mr Cooper against orders made by Judge Myers on 13 May 2013. The original orders discharged spousal maintenance and child maintenance orders made on 16 January 1989, effective as of 13 May 2013. The appeal was conceded, and the court set aside the original orders, varying the child maintenance arrears to $15,000 and discharging spousal maintenance arrears. The court also granted leave for further evidence to be adduced in the appeal. Following the appeal, the parties applied for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

The legal issues the court needed to decide related to whether the appeal had succeeded on a question of law, specifically concerning the adequacy of the primary judge's reasons and his failure to consider relevant sections of the Family Law Act 1975 (Cth). The court found that the primary judge's reasons were inadequate, failed to address critical evidence, and did not properly consider the spousal maintenance component of the case. These errors amounted to errors of law, rendering the appeal successful. The court also considered the manner in which the proceedings were undertaken before the primary judge, finding no grounds to deny the parties their respective costs certificates.

The court concluded that the appeal had indeed succeeded on a question of law, and there was no reason to deny the parties their costs certificates. The appeal was allowed, and the original orders were set aside. The court found that the primary judge's failure to consider relevant sections of the Family Law Act 1975 (Cth) and his inadequate reasons constituted errors of law, making the appeal irresistible. The court granted the parties their respective costs certificates, allowing them to seek reimbursement of their legal costs from the Attorney-General.

The final orders of the court included granting both the appellant and the respondent a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth), enabling them to seek reimbursement of their legal costs from the Attorney-General. This decision highlights the importance of comprehensive and legally sound reasoning in family law appeals and the court's commitment to ensuring that parties receive appropriate costs certificates when appeals succeed on questions of law.

Orders