GULL & GULL - [2016] FamCAFC 18

FAMILY COURT OF AUSTRALIA

GULL & GULL

[2016] FamCAFC 18

FAMILY LAW – APPEAL – where an adjustment was made by the trial judge to reflect a failure by the appellant to comply with orders which would have provided funds to the respondent at an earlier time – where the trial judge also quantified previously unquantified costs orders – principles for interfering with costs orders.

Family Law Act 1975 (Cth) ss 79A(1)(c), 117(2)

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Rules 2004 (Cth)

APPELLANT:

Ms Gull

RESPONDENT:

Mr Gull

FILE NUMBER:

MLC

10581

2008

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

22 February 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Faulks DCJ, May and Bennett JJ

HEARING DATE:

16 October 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 June 2012

LOWER COURT MNC:

[2012] FamCA 431

REPRESENTATION

FOR THE APPELLANT:

Ms Gull (in person)

COUNSEL FOR THE RESPONDENT:

Mr R.G. Weil

SOLICITOR FOR THE RESPONDENT:

Vernon Da Gama & Associates

Orders

The appeal be allowed in part.
Paragraph 1(b) of the orders made on 8 June 2012 be set aside and in lieu it is ordered that the wife pay the husband’s costs of and incidental to the application of the husband contained in paragraph 1(f) of the Amended Application filed 9 May 2012. Such costs to be assessed pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).
Paragraph 1(d) of the orders made 8 June 2012 be set aside.
The husband repay to the wife such sum received by him by reason of paragraph (1)(b) in excess of the assessment and the sum of $555 as ordered in paragraph (1)(d) of the orders made on 8 June 2012.
There be no order as to costs of the application for security for costs and of the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 51 of 2012
File Number: MLC 10581 of 2008

Ms Gull

Appellant

And

Mr Gull

Respondent

REASONS FOR JUDGMENT

Introduction

In an Amended Notice of Appeal filed 3 August 2012 Ms Gull (“the wife”) appeals against Orders 1 and 2 made by Cronin J (the primary judge) on 8 June 2012.
The hearing before Cronin J related to whether the Court should exercise its discretion pursuant to s 79A(1)(c) of the Family Law Act 1975 (Cth) (“the Act”), to set aside final property orders because of the wife’s failure to carry out obligations imposed on her under the orders. The husband also sought an order for costs against the wife.
His Honour found that the wife had indeed defaulted in fulfilling her obligations under the orders, and because of the financial effects of this default on the husband, it was…

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 GULL & GULL

Details

AGLC: GULL & GULL [2016] FamCAFC 18
Case: [2016] FamCAFC 18
Decision Date: 22 February 2016

CaseChat Overview and Summary

In this matter, the appellant, Mr Gull, appealed against orders made by the trial judge in the Family Court. The dispute centred around the enforcement of orders that would have provided financial support to the respondent, Mrs Gull, at an earlier stage. The trial judge adjusted the orders to reflect Mr Gull's failure to comply with the initial directives, and also quantified previously unquantified costs orders.

The primary legal issues before the court were whether the trial judge had erred in making the adjustments to the orders and in quantifying the costs. The court needed to determine the principles that should be applied when considering interference with costs orders. Specifically, the court had to assess if the adjustments and quantifications made by the trial judge were appropriate, given the circumstances and the legal framework provided by sections 79A(1)(c) and 117(2) of the Family Law Act 1975.

The court found that while the trial judge did not err in principle, there were errors in the execution of the orders. The court held that the adjustments made to reflect the appellant's non-compliance were correct, but the quantification of costs was not adequately justified. The court concluded that the appeal should be allowed in part, with specific modifications to the orders. The wife was ordered to pay the husband's costs associated with a particular application, to be assessed according to the Family Law Rules 2004. The husband was required to repay certain sums to the wife, over and above what was already ordered. The court decided not to make any orders regarding the costs of the application for security for costs and the appeal.

Orders

Orders of the court

The appeal be allowed in part.

Paragraph 1(b) of the orders made on 8 June 2012 be set aside and in lieu it is ordered that the wife pay the husband’s costs of and incidental to the application of the husband contained in paragraph 1(f) of the Amended Application filed 9 May 2012. Such costs to be assessed pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).

Paragraph 1(d) of the orders made 8 June 2012 be set aside.

The husband repay to the wife such sum received by him by reason of paragraph (1)(b) in excess of the assessment and the sum of $555 as ordered in paragraph (1)(d) of the orders made on 8 June 2012.

There be no order as to costs of the application for security for costs and of the appeal.

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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