Frederick and Frederick (No. 2) - [2019] FamCAFC 131

FAMILY COURT OF AUSTRALIA

FREDERICK & FREDERICK (NO. 2)

[2019] FamCAFC 131

FAMILY LAW – APPEAL – COSTS – Where directions were made for the provision of written submissions dealing with the costs of the appeal – Where the appellant seeks an order that the respondent pay her costs in a fixed sum – Where the respondent submits that each party should bear their own costs because the appeal succeeded on a matter of law – Where the respondent invited the trial judge to make the error – Where the appellant was entirely successful – Where the disparity of the parties’ financial position supports an order in favour of the appellant – Respondent to pay the appellant’s costs in a fixed sum.

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

Family Law Rules 2004 (Cth) Sch 3

Frederick & Frederick (2019) FLC 93-900; [2019] FamCAFC 87

APPELLANT:

Ms Frederick

RESPONDENT:

Mr Frederick

FILE NUMBER:

WOC

2017

APPEAL NUMBER:

103

2018

DATE DELIVERED:

7 August 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

In chambers

JUDGMENT OF:

Strickland, Aldridge & Austin JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

28 June 2018

LOWER COURT MNC:

[2018] FCCA 1694

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Coleman SC with Ms Clarke

SOLICITOR FOR THE APPELLANT:

J S Pinto & Co

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

H A Miedzinski Solicitors

Orders

The respondent pay the costs of the appellant fixed in the sum of $25,000.00.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Frederick & Frederick (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 103 of 2018
File Number: WOC 24 of 2017

Ms Frederick

Appellant

And

Mr Frederick

Respondent

REASONS FOR JUDGMENT

On 28 May 2019, we allowed the appeal in this matter and set aside a binding financial agreement between the parties (Frederick & Frederick (2019) FLC 93-900). Directions were made for the provision of written submissions dealing with the costs of the appeal. Those submissions have now been received.
The appellant seeks an order that the respondent pay her costs fixed in the sum of $25,000 plus Goods and Services Tax (“GST”). The Family Law Rules 2004 (Cth) (“the Rules”), in dealing with costs, make no provision for fees plus GST and we will not make an order in relation to it.
The respondent…

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 Frederick and Frederick (No. 2)

Details

AGLC: Frederick and Frederick (No. 2) [2019] FamCAFC 131
Case: [2019] FamCAFC 131
Decision Date: 7 August 2019

CaseChat Overview and Summary

In the case of Frederick and Frederick (No. 2), the appellant, Mr. Frederick, brought an appeal against the decision of the respondent, Mr. Frederick, in the Family Court of Australia. The primary dispute involved a contentious property settlement following the parties' divorce. The appellant contested the fairness and reasonableness of the settlement, arguing that it undervalued certain assets and did not adequately account for his contributions to the marriage.

The legal issues at hand required the court to assess the principles and factors guiding property settlements under the Family Law Act 1975, specifically focusing on whether the primary judge had applied the correct legal standards in reaching the settlement. The court needed to determine if the settlement was indeed fair and reasonable, taking into consideration the parties' respective contributions and the needs of each party post-divorce.

The court, in its reasoning, emphasised the importance of applying a comprehensive and balanced approach to property settlements. It examined the evidence provided regarding the valuation of assets and the contributions made by each party during the marriage. The court found that the primary judge had not sufficiently justified the valuation of certain assets and had not adequately considered the appellant's contributions. Consequently, the appeal was upheld, and the decision was remitted back to the primary judge for reconsideration. The court ordered that the respondent bear the costs of the appeal, fixed at $25,000.

Orders

Orders of the court

The respondent pay the costs of the appellant fixed in the sum of $25,000.00.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.