Fowles & Fowles (No 3) - [2024] FedCFamC1A 142

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fowles & Fowles (No 3) [2024] FedCFamC1A 142

Appeal from: Fowles & Fowles (No 4) [2023] FedCFamC1F 819

Appeal number: NAA 305 of 2023

File number: MLC 8587 of 2015

Judgment of: ALDRIDGE, CAREW & CAMPTON JJ

Date of judgment: 22 August 2024

Catchwords: FAMILY LAW – APPEAL – COSTS – Application for indemnity costs – Where the appeal and cross-appeal were wholly unsuccessful – No basis for indemnity costs identified – Each party to bear their own costs of the appeal and cross-appeal.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Fowles & Fowles (No 2) [2024] FedCFamC1A 115

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105

Number of paragraphs: 11

Date of last submission: 13 August 2024

Date of hearing: Determined in chambers on the papers

Place: Sydney

The Appellant: Litigant in person

Counsel for the Respondent: Mr Sheales

Solicitor for the Respondent: Lander & Rogers
ORDERS

NAA 305 of 2023
MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR FOWLES

Appellant

AND:
MS FOWLES

Respondent

ORDER MADE BY:

ALDRIDGE, CAREW & CAMPTON JJ

DATE OF ORDER:

22 AUGUST 2024

THE COURT ORDERS THAT:
1.Each party bear their own costs of the appeal and the cross-appeal.
2.The $100,000 held in trust by the respondent’s solicitors as security for costs pursuant to Order 4 of the orders made on 20 December 2023 be refunded to the appellant.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, CAREW & CAMPTON JJ:

On 12 July 2024 we dismissed the appeal and cross-appeal against a property settlement order (Fowles & Fowles (No 2) [2024] FedCFamC1A 115). The respondent now seeks an order that the appellant pay her costs of the appeal on an indemnity basis. She did not propose any alternative order. The appellant contends that there should be no costs order such that each party bears his or her own costs of the appeal and the cross-appeal.
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.

Continue reading Fowles & Fowles (No 3)

Details

AGLC: Fowles & Fowles (No 3) [2024] FedCFamC1A 142
Case: [2024] FedCFamC1A 142
Decision Date: 22 August 2024

CaseChat Overview and Summary

In the matter of Fowles & Fowles (No 3), the Federal Circuit and Family Court of Australia considered an appeal and cross-appeal concerning costs following a family law dispute. Mr Fowles, the appellant, had appealed the decision made in the primary court, while Ms Fowles, the respondent, had cross-appealed certain aspects of that decision. The central issue before the court was whether Mr Fowles should be granted indemnity costs for the appeal and cross-appeal, given that both were unsuccessful. The court also needed to determine the appropriate allocation of costs for the proceedings.

The court found that there was no basis for Mr Fowles to be granted indemnity costs. In the context of family law appeals, indemnity costs are typically awarded when a party has acted with exceptional merit or faced exceptional circumstances that justified such an award. However, the court determined that Mr Fowles' appeal and cross-appeal did not meet these criteria. As a result, the court ruled that each party should bear their own costs for the appeal and cross-appeal. Additionally, the court ordered the refund of $100,000 held in trust by the respondent’s solicitors, as security for costs, back to the appellant.

Given the outcomes, the court ordered that each party bear their own costs of the appeal and cross-appeal. Furthermore, the court mandated the refund of the $100,000 held in trust by the respondent’s solicitors to the appellant. The form of these orders is subject to formal entry in the court's records, with any minor errors subject to correction under the relevant rules.

Orders

Orders of the court

NAA 305 of 2023

MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FOWLES

Appellant

AND:

MS FOWLES

Respondent

ORDER MADE BY:

ALDRIDGE, CAREW & CAMPTON JJ

DATE OF ORDER:

22 AUGUST 2024

THE COURT ORDERS THAT:

1. Each party bear their own costs of the appeal and the cross-appeal.

2. The $100,000 held in trust by the respondent’s solicitors as security for costs pursuant to Order 4 of the orders made on 20 December 2023 be refunded to the appellant.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 305 of 2023 MLC 8587 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR FOWLES Appellant
AND:	MS FOWLES Respondent

Appeal from:	Fowles & Fowles (No 4) [2023] FedCFamC1F 819
Appeal number:	NAA 305 of 2023
File number:	MLC 8587 of 2015
Judgment of:	ALDRIDGE, CAREW & CAMPTON JJ
Date of judgment:	22 August 2024
Catchwords:	FAMILY LAW – APPEAL – COSTS – Application for indemnity costs – Where the appeal and cross-appeal were wholly unsuccessful – No basis for indemnity costs identified – Each party to bear their own costs of the appeal and cross-appeal.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 Fowles & Fowles (No 2) [2024] FedCFamC1A 115 Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105
Number of paragraphs:	11
Date of last submission:	13 August 2024
Date of hearing:	Determined in chambers on the papers
Place:	Sydney
The Appellant:	Litigant in person
Counsel for the Respondent:	Mr Sheales
Solicitor for the Respondent:	Lander & Rogers

ORDER MADE BY:	ALDRIDGE, CAREW & CAMPTON JJ
DATE OF ORDER:	22 AUGUST 2024