FAMILY COURT OF AUSTRALIA
Denham & Newsham (No. 2) [2021] FamCAFC 154
Appeal from: Denham & Newsham [2020] FamCA 271 Appeal number(s): EAA 61 of 2020 File number(s): SYC 5428 of 2018 Judgment of: AINSLIE-WALLACE, RYAN & ALDRIDGE JJ Date of judgment: 19 August 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appeal was allowed – Where the parties applied for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Conditions for costs certificates to issue are met – Costs certificates ordered. Legislation: Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 Cases cited: Denham & Newsham [2021] FamCAFC 141 Division: Appeal Division Number of paragraphs: 4 Date of hearing: By way of written submissions Place: In Chambers Counsel for the Appellant: Ms Tovey Solicitor for the Appellant: P Williams & Company Lawyers Counsel for the Respondent: Mr Ford Solicitor for the Respondent: Nolan Lawyers ORDERS
EAA 61 of 2020
SYC 5428 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR DENHAM
Appellant
AND: MS NEWSHAM
Respondent
ORDER MADE BY:
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ
DATE OF ORDER:
19 AUGUST 2021
THE COURT ORDERS THAT:
1.The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 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 appellant in respect of the costs incurred by him in relation to this appeal.
2.The Court grants to the respondent mother 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 respondent in respect of the costs incurred by her in relation to this appeal.
3.The Court grants to the appellant and the respondent a costs certificate pursuant to the provisions of s 8 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 each party in respect of the costs incurred in relation to the rehearing of these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Denham & Newsham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ:
On 6 August 2021, this Court allowed an appeal by Mr Denham (“the father”) from parenting orders made on 23 April 2020. Various orders were set aside and certain issues have been remitted for rehearing. Although we sought submissions as to costs of the appeal in order to save the parties the trouble and expense of addressing this issues later, the father wanted the opportunity to address costs following publication of our reasons for judgment (Denham & Newsham [2021] FamCAFC 141) (“Denham & Newsham”). We agreed and directions were made for written submissions on the point.
At the hearing of the appeal and in our reasons for judgment (Denham & Newsham), we indicated that assuming there was no order for costs, we were minded to grant costs certificates for the appeal and any rehearing in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).
The father filed submissions as to costs on 12 August 2021. He no longer seeks costs against Ms Newsham (“the mother”) and applied for costs certificates for the appeal and remitted rehearing. There is no application by the mother for costs and, by her written submissions filed the same day, she also seeks costs certificates for the appeal and rehearing.
The conditions for costs certificates to issue are met and we order accordingly.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie- Wallace, Ryan & Aldridge. Associate:
Dated: 19 August 2021
- AGLC
- Denham & Newsham (No. 2) [2021] FamCAFC 154
- Case
- [2021] FamCAFC 154
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the conditions for issuing costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) were satisfied. Specifically, the court needed to decide if it was appropriate for the Attorney-General to authorise payments to both parties for the costs they incurred during the appeal and the rehearing. Both parties applied for these certificates, and the court evaluated the applications to ascertain if the statutory criteria for issuing such certificates were met.
In its decision, the court concluded that the conditions for issuing costs certificates were indeed met. The court found it appropriate for the Attorney-General to authorise payments to both Mr Denham and Ms Newsham for the costs they incurred during the appeal and the rehearing. The court issued certificates under sections 6, 8, and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) accordingly. The court’s reasoning was based on the merits of each party’s application and the provisions of the Act.
The final orders of the court included granting costs certificates to Mr Denham for costs incurred during the appeal, to Ms Newsham for costs incurred during the appeal, and to both parties for costs incurred during the rehearing. These certificates pave the way for the Attorney-General to authorise payments to the respective parties for the incurred costs.
Orders
Orders of the court
EAA 61 of 2020
SYC 5428 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MR DENHAM
Appellant
AND:
MS NEWSHAM
Respondent
ORDER MADE BY:
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ
DATE OF ORDER:
19 AUGUST 2021
THE COURT ORDERS THAT:
1. The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 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 appellant in respect of the costs incurred by him in relation to this appeal.
2. The Court grants to the respondent mother 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 respondent in respect of the costs incurred by her in relation to this appeal.
3. The Court grants to the appellant and the respondent a costs certificate pursuant to the provisions of s 8 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 each party in respect of the costs incurred in relation to the rehearing of these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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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