Maluka and Maluka (Costs) - [2011] FamCAFC 187

FAMILY COURT OF AUSTRALIA

MALUKA & MALUKA (COSTS)

[2011] FamCAFC 187

FAMILY LAW – APPEAL – COSTS – costs of appeal – costs certificate in favour of Independent Children’s Lawyer – consideration of s 14 of the Federal Proceedings Costs Act 1981 (Cth).

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Mr Maluka

RESPONDENT:

Ms Maluka

INDEPENDENT CHILDREN’S LAWYER:

Ms A Grant

FILE NUMBER:

HBC

733

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

14 September 2011

PLACE DELIVERED:

PLACE HEARD:

Hobart

JUDGMENT OF:

Bryant CJ, Finn and Ryan JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 July 2009

LOWER COURT MNC:

[2009] FamCA 647

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Blissenden

SOLICITOR FOR THE APPELLANT:

Blissenden Lawyers

COUNSEL FOR THE RESPONDENT:

Mr T Fitzgerald with
Ms M Ryan

SOLICITOR FOR THE RESPONDENT:

Ms M Ryan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr P Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Butler, McIntyre and Butler

Orders

That 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 respondent Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 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 such part as the Attorney-General considers appropriate of any costs incurred by the Independent Children’s Lawyer in relation to the new trial granted by orders dated 31 March 2011.

IT IS NOTED that publication of this judgment under the pseudonym Maluka & Maluka (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 HOBART

Appeal Number: SA 77 of 2009
File Number: HBC 733 of 2008

Mr Maluka

Appellant

And

Ms Maluka

Respondent

REASONS FOR JUDGMENT

On 31 March 2011 we allowed an appeal by Mr Maluka (“the father”) against parenting orders made in proceedings between him and Ms Maluka (“the mother”).
As we accepted that the appeal should succeed on an error of law pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for the appeal and rehearing costs certificates were granted to the parties.
Because as we later explain, we were under the misapprehension that a lawyer employed by the Legal Aid Commission of Tasmania was the Independent Children’s Lawyer, there arose for consideration the question as to…

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 Maluka and Maluka (Costs)

Details

AGLC: Maluka and Maluka (Costs) [2011] FamCAFC 187
Case: [2011] FamCAFC 187
Decision Date: 14 September 2011

CaseChat Overview and Summary

The case involves the parties, Maluka and Maluka, and revolves around the issue of costs incurred by the Independent Children’s Lawyer in the context of an appeal and a subsequent new trial granted on 31 March 2011. The Federal Circuit Court of Australia was tasked with determining whether it would be appropriate for the Attorney-General to authorise payment of these costs under the Federal Proceedings (Costs) Act 1981 (Cth).

The central legal issues before the court were whether the Independent Children’s Lawyer was entitled to costs under the Federal Proceedings (Costs) Act 1981 (Cth). Specifically, the court had to consider if it would be appropriate for the Attorney-General to authorise payment of costs incurred by the Independent Children’s Lawyer in relation to the appeal and the new trial. The court had to assess the appropriateness of these payments under sections 6 and 8 of the Act.

In its reasoning, the court determined that it was appropriate for the Attorney-General to authorise the payment of costs to the Independent Children’s Lawyer for the appeal and the new trial. The court issued two costs certificates under sections 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth), confirming its view that such payments would be appropriate. This decision was based on the necessity of ensuring that the Independent Children’s Lawyer could effectively perform their role in the proceedings without financial hindrance. The court recognised the importance of the Independent Children’s Lawyer’s role and the associated costs in the context of the appeal and the new trial.

The final orders of the court granted the Independent Children’s Lawyer a costs certificate under section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) for the costs incurred in the appeal, and a further costs certificate under section 8 of the Act for the costs incurred in relation to the new trial. These orders enable the Attorney-General to authorise the necessary payments to the Independent Children’s Lawyer, ensuring they can continue to fulfil their duties without financial impediment.

Orders

Orders of the court

That 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 respondent Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 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 such part as the Attorney-General considers appropriate of any costs incurred by the Independent Children’s Lawyer in relation to the new trial granted by orders dated 31 March 2011.

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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