Coopers and Eagles (Costs) - [2011] FamCAFC 122

FAMILY COURT OF AUSTRALIA

COOPERS & EAGLES (COSTS)

[2011] FamCAFC 122

FAMILY LAW - COSTS – Where the appeal succeeded on a question of law – Where the appeal was filed due to the father’s determined resistance to reveal the truth – Where the mother made proper attempts to settle the appeal and progress to a trial – The father to pay the costs of the mother of the appeal and the application for costs on an indemnity basis to be assessed if not agreed – Such costs to be paid from the proceeds of sale of the parties’ property or within three months – Costs certificate granted to the mother for the re-hearing of the parenting applications.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Browne v Green (2002) FLC 93-115
Chamberlin v The Queen (No. 2) 153 CLR 521.
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Collins and Collins (1985) FLC 91-603
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Fish & Anor (2005) 33 Fam LR 123
Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v
Harris and Harris (1991) FLC 92-254
In the Marriage of W P J Munday and H J Bowan (1997) 22 Fam LR 321
Mead v Mead (2007) 235 ALR 197
Penfold v Penfold (1980) 144 CLR 311
Weissensteiner v The Queen (1998) 178 CLR 217
Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029

APPELLANT:

Ms Coopers

RESPONDENT:

Mr Eagles

FILE NUMBER:

BRC

5388

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

9 June 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

May J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

1 July 2010

LOWER COURT MNC:

[2010] FMCAfam 736

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Written submissions,
Mr Linklater-Steele

SOLICITOR FOR THE APPELLANT:

Biggs Fitzgerald Pike

COUNSEL FOR THE RESPONDENT:

Written submissions,
Mr Carlton

SOLICITOR FOR THE RESPONDENT:

Burchill & Horsey Lawyers

Orders

The respondent father pay the costs of the appellant mother of the appeal and the application for costs on an indemnity basis to be assessed if not agreed.
Such costs to be paid by the father from the proceeds of sale of the parties’ property or within three months, whichever be the earlier.
The Court grants to appellant mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 mother in respect of the costs incurred by the appellant mother in relation to the re-hearing of the parenting applications.

IT IS NOTED that publication of this judgment under the pseudonym Coopers & Eagles (Costs) is approved pursuant to s 121(9)(g) of the Family Law…

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 Coopers and Eagles (Costs)

Details

AGLC: Coopers and Eagles (Costs) [2011] FamCAFC 122
Case: [2011] FamCAFC 122
Decision Date: 9 June 2011

CaseChat Overview and Summary

The matter before the court was an appeal by the mother against the costs orders made by the Family Court of Australia. The dispute centred around the allocation of costs associated with the re-hearing of parenting applications between the parties, who are referred to as the appellant mother and the respondent father. The Family Court was tasked with determining the appropriate allocation of costs between the parties, particularly focusing on whether the mother should be granted an indemnity basis for her costs and whether she was eligible for a costs certificate under the Federal Proceedings (Costs) Act 1981.

The central legal issue was whether the mother was entitled to indemnity costs for the appeal and the application for costs, and if she qualified for a costs certificate. The court had to consider the merits of the mother's appeal, the nature of the application for costs, and the provisions of the Federal Proceedings (Costs) Act 1981. The court was also required to determine whether the father should pay the costs from the proceeds of the sale of the parties’ property or within a specified timeframe.

The court found that the mother was entitled to indemnity costs for the appeal and the application for costs. It held that the father should pay these costs from the proceeds of the sale of the parties’ property or within three months, whichever was earlier. The court also granted the mother a costs certificate, indicating that it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 for the costs incurred by the mother in relation to the re-hearing of the parenting applications. This decision underscored the importance of the court's discretion in allocating costs and the potential implications of such orders for the financial burden on the parties involved.

Orders

Orders of the court

The respondent father pay the costs of the appellant mother of the appeal and the application for costs on an indemnity basis to be assessed if not agreed.

Such costs to be paid by the father from the proceeds of sale of the parties’ property or within three months, whichever be the earlier.

The Court grants to appellant mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 mother in respect of the costs incurred by the appellant mother in relation to the re-hearing of the parenting applications.

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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