FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the husband and wife were unsuccessful in their appeal and cross-appeal – Where the husband’s father was a party to the trial and appeal proceedings – Whether the wife should pay the father’s costs of the appeal and the father’s application for costs – Where the circumstances justified the making of party and party costs orders in favour of the father and against the wife – Where the circumstances did not justify the making of a costs order in favour of the husband – Where the wife agreed to pay half the costs of acquiring the transcripts of proceedings.
COUNSEL FOR THE APPELLANT / FIRST CROSS-RESPONDENT:
Mr Dura
SOLICITOR FOR THE APPELLANT / FIRST CROSS-RESPONDENT
Horton Rhodes Legal
COUNSEL FOR THE RESPONDENT / CROSS-APPELLANT:
Mr Richardson SC
SOLICITOR FOR THE RESPONDENT / CROSS-APPELLANT:
Karras Partners Lawyers
SOLICITOR FOR THE SECOND CROSS‑RESPONDENT:
Barry.Nilsson.Lawyers
Orders
The wife shall pay to the second cross‑respondent his costs of and incidental to the appeal on a party and party basis up to and including the first day of the appeal in such amount as is agreed in writing or, failing agreement, as assessed.
The wife shall pay to the second cross-respondent his costs of and incidental to the application for costs of the appeal on a party and party basis in such amount as is agreed in writing or, failing agreement, as assessed.
Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) certify that it was reasonable…
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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AGLC
Harris & Dewell (No 2) [2018] FamCAFC 180
Case
[2018] FamCAFC 180
Decision Date
CaseChat Overview and Summary
In the matter of Harris & Dewell, the husband and wife were engaged in an appeal and cross-appeal concerning a family law dispute. The husband's father was also a party to these proceedings. The central issue before the court was whether the wife should be ordered to pay the costs of the appeal and the costs of the father's application for costs, given that both the appeal and cross-appeal were unsuccessful. Additionally, the court needed to determine if the husband was entitled to costs from the wife related to the preparation of appeal materials.
The court concluded that the circumstances did indeed justify the making of party and party costs orders in favour of the father and against the wife. The rationale for this decision was grounded in the fact that the wife's appeal and cross-appeal were unsuccessful and the father's involvement in the proceedings was substantial. However, the court found that the circumstances did not support a costs order in favour of the husband, as his appeal was also unsuccessful. Regarding the costs associated with the preparation of appeal materials, the court acknowledged the wife's agreement to pay half of these costs, which amounted to $5,807.31. This agreement was reflected in the final orders of the court.
The court issued several orders, including that the wife must pay the father's costs of the appeal and the costs of his application for costs on a party and party basis. Additionally, the wife was ordered to pay half of the costs incurred by the husband in preparing the appeal books and obtaining the transcript. These payments were to be made within fourteen days of the determination of the trial costs or the filing of consent orders. Each party was to bear their own costs for the appeal and the application for costs, unless otherwise specified. The form of these orders was subject to entry in the court's records.
Orders
Orders of the court
1.
The wife shall pay to the second cross‑respondent his costs of and incidental to the appeal on a party and party basis up to and including the first day of the appeal in such amount as is agreed in writing or, failing agreement, as assessed.
2.
The wife shall pay to the second cross-respondent his costs of and incidental to the application for costs of the appeal on a party and party basis in such amount as is agreed in writing or, failing agreement, as assessed.
3.
Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) certify that it was reasonable for each of the parties to engage Senior Counsel to appear.
4.
The total amount of costs payable by the wife to the second cross‑respondent as agreed or assessed shall be paid within fourteen (14) days of the determination of the applications for costs of the trial to be heard by the Honourable Justice Rees or the filing of consent orders in respect of such applications as the case may be.
5.
The wife shall pay to the husband the sum of $5,807.31, being one-half of the costs borne by the husband in the preparation of the appeal books and the obtaining of the transcript.
6.
The amount in paragraph 5 of these Orders shall be payable by the wife within fourteen (14) days of the determination of the applications for costs of the trial to be heard by the Honourable Justice Rees or the filing of consent orders in respect of such applications as the case may be.
7.
Otherwise, each of the husband and the wife shall bear their own costs of and incidental to the appeal, including their respective costs of and incidental to the application for costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.