Jets and Maker (Costs) - [2010] FamCAFC 185

Family Court Of Australia

JETS & MAKER (COSTS)

[2010] FamCAFC 185

FAMILY LAW - APPEAL – Costs of the appeal – Where the Mother has established a justifying circumstance – Where the Father was wholly unsuccessful in the proceedings – Section 117(2A)(e) of the Family Law Act1975 (Cth) – Where the Federal Magistrate made errors of law – Where the Mother had to prosecute the appeal because it was resisted by the Father – Where the Father did not concede the errors made by the Federal Magistrate – Where some aspects of the way the hearing was conducted on behalf of the Father before the Federal Magistrate was troubling – Where no order for costs should be made – Mother’s application for costs dismissed

FAMILY LAW - COSTS CERTIFICATES – Where the Federal Magistrate made errors of law – Costs certificates granted to both parties in respect of the appeal – Costs certificates granted to both parties in respect of the new trial – Application granted

Fennessy & Gregorian (2009) FLC 93-399
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
JJT & Ors; ex parte Victoria Legal Aid (1998) FLC 92-812.

Penfold v Penfold (1980) 144 CLR 311
Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172
Telfer and Telfer (1996) FLC 92-688

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

MS JETS

RESPONDENT:

MR MAKER

FILE NUMBER:

MLC

493

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

17 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:

25 August 2009

LOWER COURT MNC:

[2009] FMCAfam1046

Representation

COUNSEL FOR THE APPELLANT:

Mr Salamanca

SOLICITOR FOR THE APPELLANT:

MW Law

COUNSEL FOR THE MOTHER:

Mr Arnold

SOLICITOR FOR THE MOTHER:

Meier Dennison Guymer

Orders

The Mother’s application for costs be dismissed.
The Applicant Mother is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Mother in respect of the costs incurred by the Mother in relation to the appeal.
The Respondent Father is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Father in respect of the costs incurred by the Father in relation to the appeal.
Both parties are granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General…

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 Jets and Maker (Costs)

Details

AGLC: Jets and Maker (Costs) [2010] FamCAFC 185
Case: [2010] FamCAFC 185
Decision Date: 17 September 2010

CaseChat Overview and Summary

In this case, Jets and Maker were the parties involved in a family law matter which culminated in an appeal concerning the costs incurred during the proceedings. The appeal was heard and determined by a court of appeal in Australia. The Mother successfully established a justifying circumstance in relation to the costs of the appeal, but her application for costs was dismissed. The Father was wholly unsuccessful in the appeal proceedings. The legal issues before the court included the consideration of Section 117(2A)(e) of the Family Law Act 1975 (Cth), which deals with the allocation of costs in family law matters. The court also had to assess the conduct of the parties during the proceedings, including whether the Federal Magistrate had made errors of law and whether the Father had conceded these errors.

The court found that the Mother had to prosecute the appeal because it was resisted by the Father, who did not concede the errors made by the Federal Magistrate. Some aspects of the way the hearing was conducted on behalf of the Father before the Federal Magistrate were troubling. However, the court determined that no order for costs should be made against the Mother, as her application for costs was dismissed. The court did, however, grant costs certificates to both parties in respect of the appeal and the new trial that was granted by the orders made on 26 March 2010. This means that the Attorney-General may authorise payments to both parties for the costs incurred during the appeal and the new trial, subject to the Attorney-General's discretion in determining the appropriate amount.

In summary, the court dismissed the Mother's application for costs, but granted costs certificates to both parties in respect of the appeal and the new trial. This outcome reflects the complex nature of family law matters and the importance of considering various factors when determining the allocation of costs. The court's decision highlights the need for careful consideration of the circumstances of each case, including the conduct of the parties and any errors made by the Federal Magistrate.

Orders

Orders of the court

The Mother’s application for costs be dismissed.

The Applicant Mother is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Mother in respect of the costs incurred by the Mother in relation to the appeal.

The Respondent Father is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Father in respect of the costs incurred by the Father in relation to the appeal.

Both parties are granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to both parties’ in respect of the such part as the Attorney-General considers appropriate of any costs incurred by both parties in relation to the new trial granted by the orders made on 26 March 2010.

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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