MAKER & JETS - [2012] FamCAFC 103

FAMILY COURT OF AUSTRALIA

MAKER & JETS

[2012] FamCAFC 103

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME TO FILE – where the respondent discontinued a Notice of Appeal filed on 12 December 2011 – where the applicant filed the application for costs outside the 28 days provided for in the Rules – where the respondent did not oppose an order being made extending the time to file that application – time to file the amended application in an appeal extended nunc pro tunc.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the applicant seeks costs on an indemnity basis in addition to the costs of the hearing on 12 July 2012 – where the respondent opposes any order for costs saying her financial circumstances are such that she cannot afford to pay any such order – where the applicant incurred legal fees as a result of the initial filing of the Notice of Appeal and pursuing that matter to a directions hearing stage – where the financial circumstances of the respondent are difficult but she has sought no Centrelink benefits, nor attempted to re-enter the workforce, nor presented any evidence in terms of medical reports which would indicate that she is unable to obtain employment – where the respondent appears to rely wholly on her mother for financial assistance – where there are circumstances which justify an order for costs being made on a party/party basis – where there are no exceptional circumstances demonstrated by the applicant which warrant the order for costs being calculated on an indemnity basis – respondent to pay the costs of the applicant as agreed or as assessed on a party/party basis.

Family Law Act 1975 (Cth) – s 117(1), (2), (2A)

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Kohan & Kohan (1993) FLC 92-340
Limousin & Limousin (Costs) [2008] FamCA 315

APPLICANT:

MR MAKER

RESPONDENT:

MS JETS

FILE NUMBER:

MLC

493

2009

APPEAL NUMBER:

2011

DATE DELIVERED:

12 July 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

12 July 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

16 November 2011

LOWER COURT MNC:

[2011] FMCAfam 1473

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Meier

SOLICITOR FOR THE APPLICANT:

Meier Denison Guymer Pty Ltd

COUNSEL FOR THE RESPONDENT:

In person

Orders

The time to file the Amended Application in an Appeal filed on 10 July 2012 be extended nunc pro tunc to 10 July 2012.
The respondent pay the costs of the applicant, such costs to be assessed on a party/party basis in default of there being agreement as to the same.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

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: MAKER & JETS [2012] FamCAFC 103
Case: [2012] FamCAFC 103
Decision Date: 12 July 2012

CaseChat Overview and Summary

The matter before the court involved an appeal within family law proceedings, where the applicant sought an extension of time to file an amended application in an appeal. The respondent had previously discontinued a Notice of Appeal filed on 12 December 2011. The applicant's application for costs was filed beyond the 28-day limit stipulated by the Rules, but the respondent did not oppose an extension of time to file that application. The legal issues before the court included whether the time to file the amended application could be extended nunc pro tunc and whether the respondent should be ordered to pay the applicant's costs, potentially on an indemnity basis.

The court found that the respondent's financial circumstances, although difficult, did not warrant an order for costs on an indemnity basis. The respondent had not sought any Centrelink benefits, re-entered the workforce, or provided medical evidence indicating an inability to obtain employment. The respondent relied solely on financial assistance from her mother. The court concluded that while there were circumstances justifying an order for costs on a party/party basis, there were no exceptional circumstances that warranted an indemnity basis. Consequently, the court extended the time to file the amended application nunc pro tunc and ordered the respondent to pay the applicant's costs, to be assessed on a party/party basis unless the parties could agree on the amount.

In summary, the court granted the extension of time for the filing of the amended application nunc pro tunc and ordered the respondent to pay the applicant's costs on a party/party basis. The court did not find exceptional circumstances warranting an indemnity basis for the costs order.

Orders

Orders of the court

The time to file the Amended Application in an Appeal filed on 10 July 2012 be extended nunc pro tunc to 10 July 2012.

The respondent pay the costs of the applicant, such costs to be assessed on a party/party basis in default of there being agreement as to the same.

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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