JACOBS & SITCH - [2015] FamCAFC 62

FAMILY COURT OF AUSTRALIA

JACOBS & SITCH

[2015] FamCAFC 62

FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the appellant seeks to appeal an order for costs – Where the respondent did not appear at the hearing of the appeal but there can be no doubt she was aware of the hearing – Where the trial judge failed to take submissions made by the appellant into account – Where there is merit in the grounds of appeal – Where the appeal must be allowed – Where it is appropriate that the court re-exercise the discretion – Costs order made be set aside and there be no order as to costs.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Jacobs

RESPONDENT:

Ms Sitch

FILE NUMBER:

MLC

10230

2009

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

27 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

26 February 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 July 2014

LOWER COURT MNC:

[2014] FCCA 1537

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person - no appearance

Orders made 26 February 2015

The appeal be allowed.
The order made on 21 July 2014 be set aside and in lieu thereof there be an order that there be no order as to costs.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 56 of 2014
File Number: MLC 10230 of 2009

Mr Jacobs

Appellant

And

Ms Sitch

Respondent

REASONS FOR JUDGMENT

Introduction

On 26 February 2015 I heard this matter and made the following orders:
(1) The appeal be allowed.
(2)The order made on 21 July 2014 be set aside and in lieu thereof there be an order that there be no order as to costs.
At that time I indicated that I would deliver my reasons for judgment at a later date; those reasons are as follows.
Upon Notice of Appeal filed on 22 September 2014 Mr Jacobs (“the father”) sought leave to appeal, and if leave is granted, to appeal against an order for costs made by Judge Lucev of the Federal Circuit Court of Australia on 21 July 2014.
Although the father sought leave to appeal, in my view that is not necessary because the order made by the trial judge is a final order and the father can appeal as of right. However, if I am wrong about that, then I am satisfied that in the circumstances leave should be granted. As will shortly become apparent in these reasons, there has been an error of principle committed by his Honour, and/or the decision has caused the father a substantial injustice.
Ms Sitch (“the mother”) did not appear at the hearing of the appeal, or…

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

AGLC: JACOBS & SITCH [2015] FamCAFC 62
Case: [2015] FamCAFC 62
Decision Date: 27 April 2015

CaseChat Overview and Summary

Mr Jacobs ("the father") appealed an order for costs made by Judge Lucev of the Federal Circuit Court of Australia on 21 July 2014. The mother ("the respondent") did not appear at the hearing of the appeal, but there is no doubt she was aware of the hearing. The father sought to appeal an order for costs made by the trial judge. The primary issue before the court was whether the trial judge had erred in law or made a substantial error of judgment such that the appeal should be allowed.

The father argued that the trial judge had failed to consider his written submissions filed on 21 May 2014, and also had failed to consider that the mother had successfully applied to adjourn the hearing on 11 July 2013, resulting in the father's costs thrown away being $5,500. The court found that there was merit in both grounds of appeal. The trial judge had failed to consider the father's submissions and had failed to take into account the adjournment of the hearing on 11 July 2013, which more than offset the circumstances surrounding the adjournment of the hearing on 29 August 2013.

The court held that the appeal should be allowed and that the order made by the trial judge should be set aside. In lieu thereof, there should be an order that there be no order as to costs. The court re-exercised the discretion and found that the father should not be required to pay the mother the costs of $1,384 thrown away on 29 August 2013.

The final order was that the appeal be allowed and the order made on 21 July 2014 be set aside and in lieu thereof there be an order that there be no order as to costs.

Orders