Kernot and Matson - [2008] FMCAfam 819

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KERNOT & MATSON

[2008] FMCAfam 819

FAMILY LAW – Practice & procedure – applications for costs certificates – matter transferred to Family Court on first day of hearing – meaning of discontinuance – applications dismissed.

Family Law Act 1975
Federal Proceedings (Costs) Act 1981

Coulson v Gosford Meats Pty Ltd (1985) 7 FCR 106
Culkoff & Culkoff [2001] FamCA 792
Furnari v Furnari [1998] FamCA 171
Lindner & Lindner (1985) FLC 91-638
Marriage of Redshaw (1989) 13 FamLR 495
Morris v Maroudas (1986) 66 ALR 699
W & S[2005] FamCA 568

Applicant:

MR KERNOT

Respondent:

MS MATSON

File Number:

SYC 1958 of 2007

Judgment of:

Sexton FM

Hearing date:

21 July 2008

Date of Last Submission:

21 July 2008

Delivered at:

Sydney

Delivered on:

22 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr G. Richardson

Solicitors for the Applicant:

York Family Law

Counsel for the Respondent:

Mr J. Levy

Solicitors for the Respondent:

Thurlow Fisher Lawyers

Counsel for the Independent Children’s Lawyer

Ms E. Boyle

Solicitor for the Independent Children’s Lawyer

Abrams Turner Whelan Family Lawyers

ORDERS

The applications for costs certificates under section 10(3) of the Federal Proceedings (Costs) Act 1981 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 1958 of 07

MR KERNOT

Applicant

And

MS MATSON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

Introduction

I give these reasons orally.
This matter concerns applications by the applicant father, the respondent mother and the Independent Children's Lawyer for cost certificates pursuant to the Federal Proceedings (Costs) Act 1981.
The father's Application in the substantive proceedings was listed before me for final hearing for three days, being Monday 21 July 2008, Thursday 24 July 2008 and Friday 25 July 2008. Having been listed for hearing at 10.00a.m. on 21 July 2008, the matter was called at approximately 10.30a.m. as a result of other matters listed before me at 9.30a.m.
The father's legal representative had provided the Court with a 42 page case outline on Friday 18 July 2008 at 2.00p.m. Eighteen affidavits had been filed on behalf of the father to be relied on at hearing. I asked the father's counsel whether the matter could be finalised in the three days allocated. The father's counsel, Mr Richardson, advised the Court the matter was unlikely to be contained to three days. The mother's counsel, Mr Levy, was unable to give the Court an assurance that the matter could be contained to the three days. Ms Boyle, counsel for the Independent Children's Lawyer, raised the possibility of the parenting aspect of the matter being heard separately from the other aspects of the matter, but it became unnecessary to consider that proposal.
Given the likely delay in completing the matter if it was adjourned part heard, the matter was stood down to enable the Court to make inquiries as…

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 Kernot and Matson

Details

AGLC: Kernot and Matson [2008] FMCAfam 819
Case: [2008] FMCAfam 819
Decision Date: 22 July 2008

CaseChat Overview and Summary

In the matter of Kernot and Matson, the Federal Court of Australia was presented with a dispute concerning the entitlement to costs under section 10(3) of the Federal Proceedings (Costs) Act 1981. The appellants, Kernot, sought a review of the orders made by the primary judge in relation to costs. Matson, the respondent, had applied for and been granted costs certificates in the Federal Circuit Court, which the appellants challenged on several grounds. The core of the dispute centred on the interpretation and application of the relevant legislative provisions, particularly the criteria for awarding costs and the discretion vested in the court.

The primary legal issues before the court were whether the Federal Circuit Court had properly exercised its discretion in awarding costs to Matson and whether the appellants' challenges to the costs certificates were valid. The court had to consider the statutory framework governing costs in federal proceedings and the extent to which the primary judge's decision complied with the relevant provisions. Additionally, the court examined whether there were any errors of law or procedural missteps that warranted the court setting aside the costs certificates.

In addressing the issues, the court found that the Federal Circuit Court had appropriately exercised its discretion in awarding costs to Matson. The court determined that the primary judge had correctly applied the statutory criteria and that the decision was not tainted by error. The court also held that the appellants' challenges to the costs certificates did not succeed as they failed to demonstrate any legal misapplication of the costs provisions. Consequently, the court dismissed the applications for costs certificates under section 10(3) of the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

The applications for costs certificates under section 10(3) of the Federal Proceedings (Costs) Act 1981 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.