Jamine and Jamine (Costs) - [2010] FamCAFC 191

Family Court Of Australia

JAMINE & JAMINE (COSTS)

[2010] FamCAFC 191

FAMILY LAW - COSTS – Where the Husband is to pay the costs of the appeal proceedings on a party and party basis – Where the Husband is to pay the costs of the costs proceedings of a specific amount – Where the Husband is wholly unsuccessful in his appeal – Where the Wife has established a justifying circumstance – Application for costs granted

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311
Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPELLANT:

MR JAMINE

RESPONDENT:

MS JAMINE

FILE NUMBER:

MLC

3286

2008

APPEAL NUMBER:

108

2008

DATE DELIVERED:

22 September 2010

PLACE DELIVERED:

Sydney

JUDGMENT OF:

O’Ryan J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

10 December 2008

LOWER COURT MNC:

[2008] FMCAfam 1189

Representation

SOLICITOR FOR THE APPELLANT:

Bowlan Dunstan & Associates

SOLICITOR FOR THE RESPONDENT:

Lantern Hill Lawyers

Orders

The Husband pay the costs of the Wife of and incidental to the appeal concluded by judgment pronounced on 15 June 2010.
The costs in order 1 hereof be in an amount as agreed by the Husband and the Wife within 21 days of the date of these orders and failing such an agreement as assessed on a party and party basis.
The Husband pay the costs of the Wife of and incidental to the appeal costs proceedings concluded by these orders.
The costs in order (3) hereof be assessed in the amount of $578.00.

IT IS NOTED that publication of this judgment under the pseudonym Jamine & Jamine (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA

Appeal Number: SA 108 of 2008
File Number: MLC 3286 of 2008

MR JAMINE

Appellant

And

MS JAMINE

Respondent

Reasons for Judgment

Introduction

On 15 June 2010 I pronounced judgment and dismissed an appeal by Mr Jamine (“the Husband”) against a divorce granted by Federal Magistrate Hartnett. The respondent to the appeal was Ms Jamine (“the Wife”).
I made the following orders in relation to any costs sought by the parties in relation to the appeal:
3. Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 28 days of the date hereof.
4. Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the…

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 Jamine and Jamine (Costs)

Details

AGLC: Jamine and Jamine (Costs) [2010] FamCAFC 191
Case: [2010] FamCAFC 191
Decision Date: 22 September 2010

CaseChat Overview and Summary

The appeal in Jamine and Jamine was heard by the Family Court of Australia. The central issue was the division of costs between the husband and the wife in relation to both the appeal and the appeal costs proceedings. The wife sought costs from the husband in accordance with the court’s inherent jurisdiction and pursuant to specific statutory provisions. The husband opposed the application for costs on various grounds.

The court had to determine whether the wife's application for costs was justifiable under the inherent jurisdiction of the court, taking into account factors such as the merits of the parties' cases and the conduct of the parties during the proceedings. The court also needed to consider the applicability of section 90K of the Family Law Act 1975, which provides for costs orders in family law proceedings. The wife argued that the husband's appeal was without merit and that his conduct was unreasonable, warranting an order for costs. The husband contended that the appeal had merit and that the wife's application for costs should be dismissed.

The court found that the wife's appeal was largely successful, and the husband's appeal was without merit. The court held that the wife's application for costs was justified under the inherent jurisdiction of the court and pursuant to section 90K. The judge considered the husband's conduct to be unreasonable and found that the wife's application for costs was reasonable. The court ordered the husband to pay the wife's costs of the appeal and the appeal costs proceedings, with specific amounts to be determined by agreement or assessed if necessary.

The final orders required the husband to pay the wife's costs of the appeal and the appeal costs proceedings, with the amounts to be agreed upon by the parties or assessed if no agreement could be reached. The costs of the appeal were to be assessed at $578.00.

Orders

Orders of the court

The Husband pay the costs of the Wife of and incidental to the appeal concluded by judgment pronounced on 15 June 2010.

The costs in order 1 hereof be in an amount as agreed by the Husband and the Wife within 21 days of the date of these orders and failing such an agreement as assessed on a party and party basis.

The Husband pay the costs of the Wife of and incidental to the appeal costs proceedings concluded by these orders.

The costs in order (3) hereof be assessed in the amount of $578.00.

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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