Kite & Kite (Costs) - [2011] FamCAFC 144

FAMILY COURT OF AUSTRALIA

KITE & KITE (COSTS)

[2011] FamCAFC 144

FAMILY LAW - COSTS – where the husband was wholly unsuccessful in his appeal – where the wife made an offer – where there is no evidence of any counter offer having been made – husband to pay wife’s costs of and incidental to the appeal – costs to be as agreed or assessed on a party and party basis.

Family Law Act 1975 (Cth) s 117

Allesch v Maunz (2000) 203 CLR 172
House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513

APPELLANT:

Mr Kite by his case guardian Mr R J Kite

RESPONDENT:

Ms Kite

FILE NUMBER:

PAF

1073

2006

APPEAL NUMBER:

2009

DATE DELIVERED:

7 July 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

By written submissions

JUDGMENT OF:

Faulks DCJ, Coleman & Strickland JJ

HEARING DATE:

By written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 July 2009

LOWER COURT MNC:

[2009] FamCA 896

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Judge

SOLICITOR FOR THE APPELLANT:

Champion Legal

COUNSEL FOR THE RESPONDENT:

Mr Kearney

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

That the appellant husband pay the respondent wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 98 of 2009
File Number: PAF 1073 of 2006

Mr Kite

Appellant

And

Ms Kite

Respondent

REASONS FOR JUDGMENT

COSTS

Introduction

On 4 February 2011, for reasons which the Court then published, the husband’s appeal against the judgment of Stevenson J of 31 July 2009 was dismissed. As a result, and in accordance with the agreement of counsel for the parties, the Court made directions for the filing of submissions with respect to costs.
Pursuant to those directions, on 4 March 2011 submissions were filed on behalf of the wife in support of her application for an order for her costs of the appeal. No submissions have been received by or on behalf of the husband, notwithstanding that the time within which to file any such submissions expired more than three months ago. The wife seeks to have her application for costs determined. It is appropriate that we now do so.

Discussion

As is not in doubt, s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to the provisions of s 117(2), each party to proceedings under the Act “shall bear his or own costs”.
The High Court said in Penfold v Penfold (1980) 144 CLR 311 at 315:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in 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 Kite & Kite (Costs)

Details

AGLC: Kite & Kite (Costs) [2011] FamCAFC 144
Case: [2011] FamCAFC 144
Decision Date: 7 July 2011

CaseChat Overview and Summary

The appeal before the court involved a dispute between a husband and wife regarding costs associated with the appeal process. The case was heard in the Family Court of Australia. The wife had initiated proceedings against the husband, and following a series of hearings and judgments, the husband appealed the decision. The central issue before the court was whether the husband should be required to pay the wife's costs associated with the appeal, either as agreed upon by the parties or assessed by the court if the parties could not agree.

The court considered the nature of the appeal and the circumstances leading to the costs incurred by the wife. It examined the precedents and principles guiding the allocation of costs in family law matters, particularly focusing on the principle of proportionality and the fairness of the outcome. The court recognised that appeals in family law cases often involve complex issues and significant emotional stakes, which can lead to high costs. However, it also noted that the husband had pursued the appeal without success, and that the wife's costs were reasonable and proportionate to the nature of the appeal. Based on these considerations, the court determined that the husband should bear the wife's costs of the appeal, either as agreed or assessed by the court.

The final orders of the court mandated that the husband pay the wife's costs of and incidental to the appeal as agreed or assessed on a party and party basis. This decision underscores the court's commitment to ensuring that the allocation of costs in family law appeals reflects the realities and fairness of the legal process.

Orders

Orders of the court

That the appellant husband pay the respondent wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

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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