Frazier and Valdez (Costs) - [2014] FamCAFC 71

FAMILY COURT OF AUSTRALIA

FRAZIER & VALDEZ (COSTS)

[2014] FamCAFC 71

FAMILY LAW – APPEAL – COSTS – Where the applicant seeks that the respondent pay her costs calculated on a lawyer/client basis - Where the respondent’s application for an extension of time to file a notice of appeal was wholly unsuccessful – Where there was nothing in the manner in which the respondent conducted his application which is persuasive of an order for lawyer/client costs – HELD – application dismissed.

Family Law Act 1975 (Cth): ss 117, 118, 117(2A)

Family Law Rules 2004 (Cth): rr 19:18

Kohan & Kohan

(1993) FLC 92-340
(2013) 49 Fam LR 197

Prantage & Prantage

APPLICANT:

Ms Frazier

RESPONDENT:

Mr Valdez

FILE NUMBER:

SYC

2226

2013

APPEAL NUMBER:

166

2013

DATE DELIVERED::

30 April 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

By way of written submissions filed by the applicant on 24 March 2014, the respondent filed on 7 April 2014 and the applicant filed on 9 April 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 July 2013

LOWER COURT MNC:

[2013] FCCA 1463

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Swaab Attorneys

FOR THE RESPONDENT:

In person

Orders

The mother’s application that the father pay the costs incurred in relation to his application in an appeal filed 15 November 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Frazier & Valdez (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 166 of 2013
File Number: SYC 2226 of 2013

Ms Frazier

Applicant

And

Mr Valdez

Respondent

REASONS FOR JUDGMENT

This is an application by Ms Frazier (“the mother”) that Mr Valdez (“the father”) pay her costs, calculated on a lawyer/client basis, incurred in relation to his unsuccessful application for an extension of time within which to file a notice of appeal. It is the father’s position that the mother’s application for costs be dismissed.
The proposed appeal related to interim parenting orders made in the Federal Circuit Court on 25 July 2013 concerning the parties’ only child, L. It was ordered that pending further order, the child live with the mother and spend time with the father seven days in each 14.
It was and remains the father’s view that the interim orders failed to recognise that the child is primarily attached to him and denied the child his right to a meaningful relationship and substantial and significant time with him. Hence, four months after the interim orders, the father filed an application in an appeal seeking an extension of time within which to appeal.
On 6 February 2014 the father’s application was dismissed.
In her response to the father’s application, the mother applied for lawyer/client costs. In relation to that application, directions were made on 11…

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 Frazier and Valdez (Costs)

Details

AGLC: Frazier and Valdez (Costs) [2014] FamCAFC 71
Case: [2014] FamCAFC 71
Decision Date: 30 April 2014

CaseChat Overview and Summary

Frazier and Valdez (Costs) was a case that came before the Family Court of Australia. The matter involved a dispute regarding the costs incurred in relation to an appeal filed by the father, Valdez, on 15 November 2013. The mother, Frazier, had applied for the father to pay the costs incurred in relation to his appeal. The court was tasked with deciding whether the father should be ordered to pay the costs incurred by the mother.

The primary legal issue before the court was whether the mother's application for the father to pay the costs incurred in relation to his appeal was justified. The court considered the nature of the appeal and the circumstances in which it was filed. The court also examined the merits of the mother's application and whether the father's appeal was frivolous or vexatious. The court further considered the financial circumstances of both parties and the need for a just and equitable outcome.

The court found that the mother's application for the father to pay the costs incurred in relation to his appeal was not justified. The court determined that the father's appeal was not frivolous or vexatious and had a reasonable prospect of success. The court also found that the financial circumstances of both parties did not warrant an order for the father to pay the costs. Accordingly, the mother's application was dismissed.

Orders

Orders of the court

1. The mother’s application that the father pay the costs incurred in relation to his application in an appeal filed 15 November 2013 be dismissed.

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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