FAMILY LAW - APPEAL – Costs – trial Judge erred in failing to have sufficient regard to the financial circumstances of the party ordered to pay costs – appeal allowed – discretion re‑exercised – no order made as to costs
FAMILY LAW - APPEAL – Costs – Offer of settlement – trial Judge did not pay sufficient regard to means of a party to repeat an earlier higher offer
That orders 2 and 3 made by the Honourable Justice Watt on 12 June 2007 be set aside.
That there be no order as to costs in relation to the substantive proceedings.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 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 husband in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 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 wife in respect of the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Cross and Beaumont 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
Appeal Number: HBF 1168 of 2004 File Number: SA 57 of 2007
Mr Cross
Appellant
And
Ms Beaumont
Respondent
REASONS FOR JUDGMENT
This is an appeal by the husband against orders made by Watt J on 12 June 2007 in which he:
i)ordered the husband to pay 65% of the…
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.
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Details
AGLC
Cross & Beaumont [2008] FamCAFC 68
Case
[2008] FamCAFC 68
Decision Date
CaseChat Overview and Summary
Cross and Beaumont involved an appeal against a decision regarding costs in a family law case. The husband appealed the trial judge's decision to order him to pay the wife's costs, arguing that the judge had failed to take sufficient account of his financial circumstances. The wife cross-appealed against the trial judge's refusal to order the husband to repeat a higher offer of settlement made earlier.
The court was required to determine whether the trial judge had correctly exercised his discretion in ordering the husband to pay the wife's costs and whether he had adequately considered the husband's financial position. Additionally, the court needed to assess whether the trial judge had properly evaluated the wife's earlier offer of settlement and the husband's means in relation to repeating that offer.
The appeal was allowed as the trial judge had not sufficiently considered the husband's financial circumstances. The court found that the trial judge had erred in not having sufficient regard to the husband's ability to pay the wife's costs. The court also determined that the trial judge had not adequately considered the husband's means in relation to the earlier offer of settlement. As a result, the orders made by the trial judge regarding costs were set aside. The court granted a costs certificate to both parties under the Federal Proceedings (Costs) Act 1981, allowing for potential payment of their appeal costs by the Attorney-General.
Orders
Orders of the court
1.
That the appeal be allowed.
2.
That orders 2 and 3 made by the Honourable Justice Watt on 12 June 2007 be set aside.
3.
That there be no order as to costs in relation to the substantive proceedings.
4.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 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 husband in respect of the costs incurred by him in relation to the appeal.
5.
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 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 wife in respect of the costs incurred by her in relation to the appeal.