Grace & Grace - [2021] FamCAFC 5

FAMILY COURT OF AUSTRALIA
Grace & Grace [2021] FamCAFC 5

Appeal from: Grace & Grace [2020] FCCA 977

Appeal number(s):

SOA 42 of 2020

File number(s):

MLC 11376 of 2009

Judgment of:

AINSLIE-WALLACE J

Date of judgment:

3 February 2021

Catchwords:

FAMILY LAW – APPEAL – COSTS – Wholly unsuccessful – Offer in writing – Financial circumstances – – Conduct of the respondent mother – Mother to pay the appellant father’s costs of the appeal.

Legislation:

Family Law Act 1975 (Cth) s 117

Cases cited:

Grace & Grace (2020) FLC 93-996; (2020) FLC 93-996

Lenova & Lenova (Costs) [2011] FamCAFC 141

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Division:

Appeal Division

Number of paragraphs:

22

Place:

Heard in Chambers by way of written submissions, delivered in Sydney

Counsel for the Appellant:

Ms Renwick

Solicitor for the Appellant:

Coote Family Lawyers

Counsel for the Respondent:

Dr Smith

Solicitor for the Respondent:

Clancy and Triado

ORDERS

SOA 42 of 2020
MLC 11376 of 2009

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:
MR GRACE

Appellant

AND:
MS GRACE

Respondent

ORDER MADE BY:

AINSLIE-WALLACE J

DATE OF ORDER:

3 FEBRUARY 2021

THE COURT ORDERS THAT:
1.The mother pay the father’s costs of and incidental to the appeal fixed in the sum of $14,207.23 within twenty-eight (28) days of the date of these orders.

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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grace & Grace has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:

On 28 April 2020 a judge of the Family Court made interim parenting orders in proceedings between Mr Grace (“the father”) and Ms Grace (“the mother”).
On 19 November 2020 this Court allowed the appeal brought by the father, set aside the orders made by the primary judge and remitted the matter to the Federal Circuit Court to be heard by a judge other than the primary judge.
At the conclusion of the appeal hearing the parties were invited to make submissions as to the question of costs to avoid the trouble and expense of a further hearing. However, the parties sought, and orders were made, that each would provide written submissions on the question of costs. The father seeks that the mother pay his costs of and incidental to the appeal in the sum of $14,207.23. The mother opposes the making of such an order.
SHOULD A COSTS ORDER BE MADE?
An order for costs in Family Court matters is governed by s 117(1) of the Family Law Act 1975 (Cth)…

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 Grace & Grace

Details

AGLC: Grace & Grace [2021] FamCAFC 5
Case: [2021] FamCAFC 5
Decision Date: 3 February 2021

CaseChat Overview and Summary

In the matter of Mr Grace versus Ms Grace, the appellant father contested the costs of an appeal brought before the Appeal Division of the Family Court of Australia. The appeal revolved around a family law dispute concerning a child, with the father seeking costs from the mother, who was the respondent. The primary judge had previously made orders that were later deemed erroneous, leading to the appeal. The father argued that he should be awarded costs because the mother's appeal was wholly unsuccessful. The mother, on the other hand, contested the father's application for costs, citing that the appeal had not been conducted in a manner that warranted such an award, and suggesting that the father's financial circumstances should be taken into account.

The court needed to determine whether the mother should be ordered to pay the father's costs of the appeal, given that the appeal was wholly unsuccessful. The court had to consider the financial circumstances of both parties and the conduct of the mother during the proceedings. The court also needed to assess whether the mother's conduct warranted an award of costs against her. The court considered the error in the primary judge's orders and whether this impacted the decision on costs.

The court concluded that the mother should pay the father's costs of and incidental to the appeal, fixed in the sum of $14,207.23. The court found that the mother's appeal was wholly unsuccessful, and her conduct during the proceedings warranted an award of costs against her. The court did not consider the financial circumstances of the parties to be relevant to the question of costs of the appeal. The court found that the mother's conduct during the proceedings was such that it warranted an award of costs against her, and as such, she should pay the father's costs of and incidental to the appeal. The court ordered that the mother pay the father's costs of and incidental to the appeal in the sum of $14,207.23 within twenty-eight days of the date of the order.

Orders

Orders of the court

SOA 42 of 2020

MLC 11376 of 2009

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR GRACE

Appellant

AND:

MS GRACE

Respondent

ORDER MADE BY:

AINSLIE-WALLACE J

DATE OF ORDER:

3 FEBRUARY 2021

THE COURT ORDERS THAT:

1. The mother pay the father’s costs of and incidental to the appeal fixed in the sum of $14,207.23 within twenty-eight (28) days of the date of these orders.

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

In her affidavit filed on 3 April 2020 which was before the primary judge, the mother said that she wished to file a fuller answer to the father’s evidence, equally, the father indicated a wish to file further documents in the proceedings. Whatever the state of the evidence, none of that impacted the error which vitiated her Honour’s orders. I do not regard this as being a factor relevant to the question of costs of the appeal.CONCLUSION In all of the circumstances, I am of the view that the mother should pay the father’s costs of and incidental to the appeal in the sum of $14,207.23.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Grace & Grace [2020] FCCA 977
Appeal number(s):	SOA 42 of 2020
File number(s):	MLC 11376 of 2009
Judgment of:	AINSLIE-WALLACE J
Date of judgment:	3 February 2021
Catchwords:	FAMILY LAW – APPEAL – COSTS – Wholly unsuccessful – Offer in writing – Financial circumstances – – Conduct of the respondent mother – Mother to pay the appellant father’s costs of the appeal.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Grace & Grace (2020) FLC 93-996; (2020) FLC 93-996 Lenova & Lenova (Costs) [2011] FamCAFC 141 Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Division:	Appeal Division
Number of paragraphs:	22
Place:	Heard in Chambers by way of written submissions, delivered in Sydney
Counsel for the Appellant:	Ms Renwick
Solicitor for the Appellant:	Coote Family Lawyers
Counsel for the Respondent:	Dr Smith
Solicitor for the Respondent:	Clancy and Triado

SOA 42 of 2020 MLC 11376 of 2009
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MR GRACE Appellant
AND:	MS GRACE Respondent

ORDER MADE BY:	AINSLIE-WALLACE J
DATE OF ORDER:	3 FEBRUARY 2021