FAMILY COURT OF AUSTRALIA
Franklyn & Franklyn (No. 2) [2021] FamCAFC 160
Appeal from: Franklyn & Franklyn [2021] FCCA 588 Appeal number(s): EAA 37 of 2021 File number(s): DUC 63 of 2018 Judgment of: AUSTIN J Date of judgment: 24 August 2021 Catchwords: FAMILY LAW – APPEAL – Costs – Application for costs of the appeal – Where the appeal was not wholly unsuccessful – Applications dismissed – Where the appeal succeeded on errors of law – Costs certificates granted in relation to the appeal and the re-hearing – Where the Independent Children’s Lawyer sought costs against the mother – Costs ordered in a fixed sum, but payment stayed until determination of the parties’ remitted applications. Legislation: Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9
Family Law Act 1975 (Cth) Pts VII, VIII, ss 106A, 117(4), 117(2A)
Family Law Rules 2004 (Cth) r 19.04(4)
Cases cited: CDJ v VAJ (No 2) (1998) 159 ALR 138; [1998] HCA 76
Cramer v Davies (1997) 72 ALJR 146; [1998] 1 Leg Rep 20
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Division: Appeal Division Number of paragraphs: 30 Date of hearing: Heard by way of written submissions Place: In Chambers Counsel for the Appellant: Mr Strik Solicitor for the Appellant: Urban Family Lawyers Counsel for the Respondent: Mr Kenny Solicitor for the Respondent: Matthew Folbigg Lawyers Counsel for the Independent Children's Lawyer: Mr Guterres Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law ORDERS
EAA 37 of 2021
DUC 63 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS FRANKLYN
Appellant
AND: MR FRANKLYN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
24 AUGUST 2021
THE COURT ORDERS THAT:
1.The appellant shall pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $4,656, the payment of which sum is stayed until the parties’ remitted applications for relief under Pt VIII of the Family Law Act 1975 (Cth) are determined by the Federal Circuit Court of Australia.
2.The appellant’s application for costs against the respondent is dismissed.
3.The respondent’s application for costs against the appellant is dismissed.
4.The appellant is granted 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 her in respect of the costs incurred in relation to the appeal.
5.
The respondent is granted 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 him in respect of the costs incurred in relation to the appeal.
6.The appellant and the respondent are both granted costs certificates pursuant to the provisions…
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CaseChat Overview and Summary
The court had to determine several legal issues, including whether the appeal was wholly unsuccessful, the appropriateness of granting costs certificates, and the allocation of costs between the parties. The appeal was partially successful, as the court found errors of law in the original decision. However, the appeal was not entirely unsuccessful, which influenced the court’s decision on costs. The court also needed to decide on the application for costs by the Independent Children’s Lawyer against Ms Franklyn.
The court found that while the appeal was not wholly unsuccessful, it succeeded on errors of law. Consequently, costs certificates were granted in relation to the appeal and the re-hearing. The Independent Children’s Lawyer was awarded costs against Ms Franklyn, but the payment was stayed until the parties’ remitted applications were determined by the Federal Circuit Court of Australia. The court dismissed both Ms Franklyn's and Mr Franklyn's applications for costs against each other. The court granted costs certificates to both Ms Franklyn and Mr Franklyn in relation to the new trial, subject to the Attorney-General’s authorisation.
In conclusion, the court ordered that Ms Franklyn pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $4,656, with payment stayed until the remitted applications were determined. The court dismissed both parties' applications for costs against each other. Costs certificates were granted to both parties, allowing for potential reimbursement from the Attorney-General for costs incurred during the appeal and the new trial.
Orders
Orders of the court
EAA 37 of 2021
DUC 63 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MS FRANKLYN
Appellant
AND:
MR FRANKLYN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
24 AUGUST 2021
THE COURT ORDERS THAT:
1. The appellant shall pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $4,656, the payment of which sum is stayed until the parties’ remitted applications for relief under Pt VIII of the Family Law Act 1975 (Cth) are determined by the Federal Circuit Court of Australia.
2. The appellant’s application for costs against the respondent is dismissed.
3. The respondent’s application for costs against the appellant is dismissed.
4. The appellant is granted 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 her in respect of the costs incurred in relation to the appeal.
5.
The respondent is granted 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 him in respect of the costs incurred in relation to the appeal.
6. The appellant and the respondent are both granted costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the parties in respect of such part, as the Attorney-General considers appropriate, of any costs incurred by them in relation to the new trial granted by the orders made on 9 July 2021.
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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