Kitman & Kitman (Costs) - [2008] FamCAFC 180

FAMILY COURT OF AUSTRALIA

KITMAN & KITMAN (COSTS)

[2008] FamCAFC 180

FAMILY COURT – APPEAL – COSTS – Where appeal and cross appeal were allowed and orders were made re-exercising the discretion of the trial judge – Where appellant and cross appellant seek costs certificates for the appeal and cross appeal – Orders made for costs certificates to be issued to the appellant and respondent in the appeal – Orders made for costs certificates to be issued to the cross appellant and respondent in the cross appeal

FAMILY LAW - COSTS – Appellant made an application pursuant to s117AB for costs to be paid by the respondent on the basis that the respondent had made false allegations or statements – Orders made to dismiss the appellant’s application for costs against the respondent

Family Law Act 1975 ss117, 117AB
Federal Proceedings (Costs) Act 1981, ss6 & 9

Oscar & Traynor [2008] FamCAFC 158

APPELLANT:

MR KITMAN

RESPONDENT:

MRS KITMAN

FILE NUMBER:

TVF

2438

2005

APPEAL NUMBER:

2008

DATE DELIVERED:

12 November 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

12 November 2008

REPRESENTATION

APPELLANT:

Appellant appears on his own behalf

SOLICITOR FOR THE RESPONDENT:

Wilson/Ryan/Grose

Orders

That the application contained in the Response to an Application in a Case filed by the husband on 18 July 2008 be dismissed.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s9 of the Federal Proceedings (Costs) Act 1981 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 appellant husband in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the respondent (cross-appellant) wife a costs certificate pursuant to the provisions of s6 of the Federal Proceedings (Costs) Act 1981 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 respondent wife in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the cross-appellant wife a costs certificate pursuant to the provisions of s9 of the Federal Proceedings (Costs) Act 1981 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 cross appellant wife in respect of the costs incurred by her in relation to the cross-appeal.
That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s6 of the Federal Proceedings (Costs) Act 1981 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 respondent cross appellant husband in respect of the costs incurred by him in relation to the cross-appeal.

IT IS NOTED that publication of this judgment under…

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: Kitman & Kitman (Costs) [2008] FamCAFC 180
Case: [2008] FamCAFC 180
Decision Date: 12 November 2008

CaseChat Overview and Summary

The appeal and cross-appeal, heard by the Family Court of Australia, concerned the costs associated with a family law matter. The parties involved were a husband and wife, who were also the appellant and cross-appellant, respectively. The husband initiated an appeal against certain decisions made during the original proceedings, while the wife filed a cross-appeal against other aspects of the same decisions. Both parties sought costs certificates to cover their expenses related to the appeal and cross-appeal processes.

The legal issues before the court included whether the husband's application for costs against the wife for making false allegations or statements could be granted, as well as the allocation of costs between the parties for the appeal and cross-appeal. The court was tasked with determining the appropriateness of issuing costs certificates to both the appellant and the cross-appellant, as well as their respective respondents, in accordance with the Federal Proceedings (Costs) Act 1981.

The court dismissed the husband's application for costs against the wife, finding that there were insufficient grounds to support the claim that the wife had made false allegations or statements. Regarding the costs certificates, the court exercised its discretion to issue certificates to both the appellant and the cross-appellant for the appeal, as well as to the cross-appellant and the respondent for the cross-appeal. This decision was based on the court's opinion that it would be appropriate for the Attorney-General to authorise payment of costs under the Federal Proceedings (Costs) Act 1981.

The court's final orders included dismissing the husband's application for costs against the wife, and granting costs certificates to both the appellant and the cross-appellant for the appeal, as well as to the cross-appellant and the respondent for the cross-appeal. This meant that the Attorney-General would be authorised to pay the respective costs incurred by the parties for the appeal and cross-appeal processes.

Orders

Orders of the court

That the application contained in the Response to an Application in a Case filed by the husband on 18 July 2008 be dismissed.

That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s9 of the Federal Proceedings (Costs) Act 1981 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 appellant husband in respect of the costs incurred by him in relation to the appeal.

That the Court grants to the respondent (cross-appellant) wife a costs certificate pursuant to the provisions of s6 of the Federal Proceedings (Costs) Act 1981 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 respondent wife in respect of the costs incurred by her in relation to the appeal.

That the Court grants to the cross-appellant wife a costs certificate pursuant to the provisions of s9 of the Federal Proceedings (Costs) Act 1981 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 cross appellant wife in respect of the costs incurred by her in relation to the cross-appeal.

That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s6 of the Federal Proceedings (Costs) Act 1981 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 respondent cross appellant husband in respect of the costs incurred by him in relation to the cross-appeal.

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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