Loomis & ML Lawyer (Costs) - [2016] FamCAFC 269

FAMILY COURT OF AUSTRALIA

LOOMIS & ML LAWYER (COSTS)

[2016] FamCAFC 269

FAMILY LAW – APPEAL – SINGLE JUDGE APPEAL – COSTS – where the appeal was dismissed – where the respondent solicitors seek an order for costs – where the appellant father was wholly unsuccessful – where an offer and counter offer were made between the parties – conduct of the parties – financial circumstances – where the circumstances of the case justify an order for costs – where the appellant father ordered to pay the costs of the respondent solicitors fixed in the sum of $9,000.

Family Law Act 1975 (Cth) ss 94AAA(3), 117(1), 117(2A)

Family Law Rules 2004 (Cth) Schedule 3, r 17.03
Federal Circuit Court Rules 2001 (Cth)

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APPELLANT:

Mr Loomis

RESPONDENT:

ML Lawyer

FILE NUMBER:

BRC

1010

2012

FIRST APPEAL NUMBER:

2015

SECOND APPEAL NUMBER:

2016

DATE DELIVERED:

22 December 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

In Chambers

JUDGMENT OF:

Murphy J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

28 August 2015
13 November 2015

LOWER COURT MNC:

[2015] FCCA 2353
[2015] FCCA 3582

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Mr ML of ML Lawyer

Orders

IT IS ORDERED

That the appellant father pay the respondent solicitors’ costs of and incidental to Appeal No 64 of 2015.
That the appellant father pay the respondent solicitors’ costs of and incidental to Appeal No 7 of 2016.
That the total costs payable in respect of both appeals be fixed at $9,000.
That the father raise and pay the said total amount of $9,000 by no later than 60 days from the date of these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Loomis & ML Lawyer (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Numbers: NA 64 of 2015; NA 7 of 2016
File Number: BRC 1010 of 2012

Mr Loomis

Appellant

And

ML Lawyer

Respondent

REASONS FOR JUDGMENT

On 17 August 2016, sitting as a single judge on appeal pursuant to direction by the Chief Justice in accordance with s 94AAA(3)…

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: Loomis & ML Lawyer (Costs) [2016] FamCAFC 269
Case: [2016] FamCAFC 269
Decision Date: 22 December 2016

CaseChat Overview and Summary

The appeal was brought by a father against an order made in the Federal Circuit Court of Australia concerning family law matters. The father, dissatisfied with the outcome, sought to appeal the decision. The respondent, represented by solicitors, sought an order for costs in relation to the unsuccessful appeal. The Federal Circuit Court of Australia considered the matter and addressed the issue of whether the appellant's conduct, the offer and counter offer made by the parties, and their financial circumstances justified an order for costs. The court examined the provisions of the Family Law Act 1975 and the Family Law Rules 2004, along with the Federal Circuit Court Rules 2001, to determine the appropriate course of action.

The central legal issue for the court was whether the appellant's conduct warranted an order for costs against him. The court considered the provisions of the Family Law Act 1975 and the Family Law Rules 2004, which provide for the payment of costs in family law matters. The court also took into account the Federal Circuit Court Rules 2001, which outline the circumstances in which costs may be awarded. The court assessed the conduct of the parties, including the offer and counter offer made during the proceedings, as well as their financial circumstances, to determine whether an order for costs was justified.

After considering the evidence and the relevant legal provisions, the court concluded that the appellant's conduct justified an order for costs. The court found that the appellant was wholly unsuccessful in his appeal and that the circumstances of the case warranted an order for costs. The court fixed the total costs payable at $9,000, to be paid by the appellant to the respondent solicitors. The court noted that the form of the order was subject to entry in the Court’s records.

The court made orders that the appellant father pay the respondent solicitors' costs of and incidental to Appeal No 64 of 2015 and Appeal No 7 of 2016. The total costs payable in respect of both appeals were fixed at $9,000. The father was ordered to raise and pay the said total amount of $9,000 by no later than 60 days from the date of these Orders. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

IT IS ORDERED

That the appellant father pay the respondent solicitors’ costs of and incidental to Appeal No 64 of 2015.

That the appellant father pay the respondent solicitors’ costs of and incidental to Appeal No 7 of 2016.

That the total costs payable in respect of both appeals be fixed at $9,000.

That the father raise and pay the said total amount of $9,000 by no later than 60 days from the date of these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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