Frederick and Frederick

FAMILY COURT OF AUSTRALIA

FREDERICK & FREDERICK [2009] FamCAFC 156

FAMILY LAW – APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Husband appealed/sought leave to appeal the refusal to award costs thrown away – No merit in the grounds of appeal contended – Concern that Federal Magistrate may have denied husband’s counsel at the time an opportunity to make full submissions as to costs – No issue of this nature was raised on appeal – Justice would not be served by re-opening this issue – Question of whether a costs order is an interim order and required leave ultimately did not need to be determined – Application/appeal dismissed
COSTS – Wife sought order for fixed costs – Husband ordered to pay costs upon the conclusion of the proceedings for property settlement

APPELLANT: Mr FREDERICK

RESPONDENT: Ms FREDERICK

FILE NUMBER: BRC 3198 of 2007

APPEAL NUMBER: NA 38 of 2009

DATE DELIVERED: 28 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Justice Warnick

HEARING DATE: 26 August 2009

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT ORDER DATE: 6 April 2009

REPRESENTATION

APPELLANT: Appellant appeared in person

COUNSEL FOR THE RESPONDENT: Mr Fynes-Clinton (direct access brief)

Orders

1. That the application (and/or appeal) of the husband filed 27 April 2009 be dismissed.

2. That the husband pay the wife’s costs of and incidental to the application/appeal, fixed in the sum of $1,519.00, such payment to be made forthwith upon the resolution of the application of the wife for property settlement.

IT IS NOTED that publication of this judgment under the pseudonym Frederick & Frederick is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA38 of 2009
File Number: BRC3198 of 2007

Mr FREDERICK

Appellant

And

Ms FREDERICK

Respondent

REASONS FOR JUDGMENT

1. On 6 April 2009, Federal Magistrate Jarrett adjourned the trial of an application by Ms Frederick against Mr Frederick for orders by way of property settlement following the breakdown of their marriage and for an order for departure, by way of a lump sum payment, from a Child Support Assessment.  Jarrett FM was ultimately persuaded to adjourn the matter, because to do so would enable the wife to obtain fresh legal representation.  Her previous lawyers had declined to continue because of non-payment of her fees.  Following the grant of the adjournment, Jarrett FM refused an application on behalf of the husband that the wife pay his costs thrown away.

2. These reasons relate to the husband’s application for leave to appeal against both the grant of the adjournment (however that application was not ultimately pursued) and the refusal of his application for costs.  I doubt whether he needs to seek leave in respect of the costs order, but will say more of that later.

3. At the hearing before me, the husband accepted that there was no purpose in pursuing the application for leave to appeal against the grant of the adjournment, for…