Fryer and Fryer (Costs) - [2008] FamCAFC 69

FAMILY COURT OF AUSTRALIA

FRYER & FRYER (COSTS)

[2008] FamCAFC 69

FAMILY LAW - APPEAL – From decision of Family Court Judge – COSTS – Full Court made orders allowing an appeal against property settlement orders and a consequent costs order – Full Court ordered that the parties’ applications for property settlement and the wife’s application for costs be remitted for further hearing before trial Judge – The orders also provided the opportunity for the parties to make an application for costs of the appeal by way of written submissions – Each party sought costs of the appeal or alternatively, costs certificates – The husband sought that the Full Court order for remission be amended such that the remission be before a different trial Judge – Both parties’ applications for costs dismissed – Wife granted a costs certificate in relation to the appeal and the remission – Husband’s application for amendment dismissed

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Autodesk Inc and Another v Dyason and Others (No 2) (1993) 176 CLR 300
Brott and Joachim (2006) FLC 93-259
DJL v Central Authority (2000) 201 CLR 226

APPELLANT:

MR FRYER

RESPONDENT:

MS FRYER

APPEAL NUMBER:

2007

FILE NUMBER:

MLF

1388

2005

DATE DELIVERED:

29 May 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Warnick, May & Boland JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 December 2006

LOWER COURT MNC:

[2006] FamCA 1357

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Ingleby

SOLICITOR FOR THE APPELLANT:

Harwood Andrews Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Geddes QC &

Ms Johns

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie & Associates

Orders

That the husband’s application for costs of the appeal be dismissed.
That the wife’s application for costs of the appeal be dismissed.
That the court grants to the respondent wife a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
That the court grants to the respondent wife a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise payments under that Act to the respondent wife in respect of the costs incurred in relation to such further hearing as takes place as a result of remission of the application for property settlement.
That the husband’s application to amend Order 3 of the orders of the Full Court made 22 November 2007 be dismissed.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her…

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.

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Details

Case: [2008] FamCAFC 69
Decision Date: 29 May 2008

CaseChat Overview and Summary

Fryer and Fryer is a case before the Family Court of Australia concerning a dispute over the costs of an appeal. The husband and wife were previously involved in a property settlement proceeding, and the wife had appealed the costs awarded to her. The husband sought to have the wife pay the costs of his appeal, while the wife sought to have the husband pay the costs of her appeal. The court was tasked with deciding whether either party should be required to pay the other's costs and whether the wife should be granted a costs certificate.

The primary legal issues in the case were whether the husband or the wife should bear the costs of the appeal, and whether the wife should be granted a costs certificate under the Federal Proceedings (Costs) Act 1981. The court considered the relevant provisions of the Act and the principles of costs in relation to appeals. The court also considered the conduct of both parties throughout the proceedings, including their conduct during the appeal.

The court dismissed both parties' applications for costs of the appeal, finding that neither party was entitled to the costs. However, the court granted the wife a costs certificate under section 6 of the Federal Proceedings (Costs) Act 1981, finding that it would be appropriate for the Attorney-General to authorise a payment to the wife in respect of the costs she incurred in relation to the appeal. The court also granted the wife a costs certificate under section 8 of the Act, finding that it would be appropriate for the Attorney-General to authorise payments to the wife in respect of the costs she incurred in relation to any further hearing that takes place as a result of the remission of the application for property settlement. The court dismissed the husband's application to amend Order 3 of the orders of the Full Court made 22 November 2007. The court also granted either party the liberty to make an application for costs incurred in relation to the husband's application to amend by filing written submissions at the Melbourne Registry of the Family Court and serving them on the other party within 21 days of the date of the order. The court allowed the other party a further 14 days to make written submissions in answer thereto, and either party a further 7 days to reply to an answer by way of written submissions.

In summary, the court dismissed both parties' applications for costs of the appeal, but granted the wife costs certificates under the Federal Proceedings (Costs) Act 1981. The court also dismissed the husband's application to amend Order 3 of the orders of the Full Court made 22 November 2007, and granted either party the liberty to make an application for costs incurred in relation to the husband's application to amend. The court allowed the other party a further 14 days to make written submissions in answer thereto, and either party a further 7 days to reply to an answer by way of written submissions.

Orders

Orders of the court

That the husband’s application for costs of the appeal be dismissed.

That the wife’s application for costs of the appeal be dismissed.

That the court grants to the respondent wife a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.

That the court grants to the respondent wife a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise payments under that Act to the respondent wife in respect of the costs incurred in relation to such further hearing as takes place as a result of remission of the application for property settlement.

That the husband’s application to amend Order 3 of the orders of the Full Court made 22 November 2007 be dismissed.

That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the husband’s application to amend by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party within 21 days of the date hereof.

That the other party have a further 14 days within which to make written submissions in answer thereto by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party.

That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Melbourne Registry of the Family Court and serving it on the other party within a further 7 days.

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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