Malburon & Anor & Waldlow - [2014] FamCAFC 23

FAMILY COURT OF AUSTRALIA

MALBURON AND ANOR & WALDLOW

[2014] FamCAFC 23

FAMILY LAW – APPEAL – COST CERTIFICATES – Where an appeal was allowed in part and orders were made varying the trial Judge’s orders to allow the parties liberty to apply on discrete issues that had not been determined at trial – Two parties and the Independent Children’s Lawyer sought costs certificates under s 6(1) and s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) – Whether there was a “new trial” within the meaning of s 8(1) – The orders, properly construed, involved the granting of a new trial – Basis for granting costs certificates under both provisions established.

Federal Proceedings (Costs) Act 1981 (Cth)

Nilant as trustee of bankrupt estate of Macchia v Macchia [2000] FCA 1414
Yates & Yates [2012] FamCAFC 219

FIRST APPELLANT:

Ms K Malburon

SECOND APPELLANT:

Mrs M Malburon

RESPONDENT:

Mr Waldlow

INDEPENDENT CHILDREN’S LAWYER:

Browns Family Lawyers

FILE NUMBER:

PAC

4429

2009

APPEAL NUMBER:

144

2012

DATE DELIVERED:

21 February 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ainslie-Wallace and Aldridge JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

3 October 2012

LOWER COURT MNC:

[2012] FMCAfam 1064

REPRESENTATION

COUNSEL FOR THE FIRST APPELLANT:

Self represented litigant

COUNSEL FOR THE SECOND APPELLANT:

Self represented litigant

COUNSEL FOR THE RESPONDENT:

Ms Druitt

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Snelling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Browns Family Lawyers

Orders

There be no order for costs in relation to the appeal.
The Court grants to the first appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 first appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 in respect of the costs incurred by him in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 Independent Children’s Lawyer in respect of costs incurred in relation to the appeal.
The Court grants to the first appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth)…

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: Malburon & Anor & Waldlow [2014] FamCAFC 23
Case: [2014] FamCAFC 23
Decision Date: 21 February 2014

CaseChat Overview and Summary

The case involved an appeal in a family law matter, with the respondents seeking costs certificates under sections 6(1) and 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth). The appeal resulted in the full court allowing the appeal in part and making orders that varied the trial judge's orders, allowing the parties liberty to apply on certain discrete issues that had not been determined at trial. The parties and the Independent Children's Lawyer sought costs certificates under the relevant sections of the Act, with the central issue being whether the orders constituted a "new trial" within the meaning of section 8(1).

The court considered the nature of the orders and determined that, properly construed, they involved the granting of a new trial. This finding established the basis for granting costs certificates under both section 6(1) and section 8(1) of the Act. The court found that the orders did indeed involve a new trial, as they granted the parties liberty to apply on specific issues that had not been determined at the trial level. Consequently, the court concluded that the respondents were entitled to costs certificates under both sections of the Act.

In summary, the court granted costs certificates to the first appellant, the respondent, and the Independent Children's Lawyer under section 6(1) and section 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth). The certificates were issued in respect of costs incurred by each party in relation to the appeal and the rehearing of the issues identified in Order 2 of the Full Court's orders made on 24 November 2013. The court also made an order that there be no order for costs in relation to the appeal itself.

Orders

Orders of the court

There be no order for costs in relation to the appeal.

The Court grants to the first appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 first appellant in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by him in relation to the appeal.

The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 Independent Children’s Lawyer in respect of costs incurred in relation to the appeal.

The Court grants to the first appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred in relation to the rehearing of the issues identified in Order 2 of the orders of the Full Court made on 24 November 2013.

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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