Manley and Manley (No 2) - [2010] FamCAFC 199

FAMILY COURT OF AUSTRALIA

MANLEY & MANLEY (NO. 2)

[2010] FamCAFC 199

FAMILY LAW - APPEAL – COSTS CERTIFICATES – where the appeal was allowed by consent – oral applications by both parties for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – costs certificates granted.

Federal Proceedings (Costs) Act 1981 (Cth) ss 3(1)(ja), 6 & 9

B and B (Costs certificates) (2007) FLC 93-339
B & B (Costs Certificates) [2007] FamCA 1252
Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Ms Manley

RESPONDENT:

Mr Manley

FILE NUMBER:

SYC

3783

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

17 September 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland J

HEARING DATE:

17 September 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 July 2010

LOWER COURT MNC:

[2010] FMCAfam 707

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kearney

SOLICITOR FOR THE APPELLANT:

Charles Cooper Lawyers

COUNSEL FOR THE RESPONDENT:

Mrs Knox

SOLICITOR FOR THE RESPONDENT:

Robertson Saxton Primrose Dunn

Orders by Consent

That the Appeal from the orders of the Federal Magistrates Court at Sydney on 15 July 2010 be allowed.
That Orders 1 and 2 of the Orders of the Federal Magistrates Court at Sydney on 15 July 2010 be set aside.
That the proceedings be remitted for rehearing before a Federal Magistrate of the Federal Magistrates Court at Sydney, other than Federal Magistrate Scarlett.
That the Federal Magistrates Court be requested to relist the proceedings for mention as soon as is possible.
That there be no order for costs.
That the Court grants to the appellant a costs certificate pursuant to 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 the Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to 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 the Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Manley & Manley (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

Appeal Number: EA 95of 2010
File Number: SYC 3783 of 2008

Ms Manley

Appellant

And

Mr Manley

Respondent

EX TEMPORE REASONS

This is an appeal from orders made by Scarlett FM on 15 July 2010.
The Notice of Appeal was filed on 3 August 2010 and by order of Boland J made on 11 August 2010, the hearing was expedited and listed to commence at 10:00 am on 17 September 2010.
On 1…

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 Manley and Manley (No 2)

Details

AGLC: Manley and Manley (No 2) [2010] FamCAFC 199
Case: [2010] FamCAFC 199
Decision Date: 17 September 2010

CaseChat Overview and Summary

This appeal, heard by Strickland J in the Family Court of Australia, concerns the costs incurred by both parties during an appeal process that was ultimately settled and resolved by consent. The parties, Ms Manley and Mr Manley, were involved in a dispute that originated in the Federal Magistrates Court. The appeal was allowed by consent, leading to the setting aside of certain orders from the lower court, and the proceedings were to be remitted for rehearing. Both parties sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the costs they incurred during the appeal.

The central legal issue before the court was whether the criteria for granting a costs certificate under sections 9 and 6 of the Federal Proceedings (Costs) Act 1981 (Cth) were satisfied in this case. For the appellant, Ms Manley, the additional requirement under section 9 that each party bears their own costs was also considered. Both parties argued that all necessary conditions for the grant of a certificate were met, and the court agreed. The court found that the appeal qualified as a "federal appeal," the appeal succeeded on a "question of law," and the court had effectively heard the appeal, satisfying the common requirements under both sections.

Strickland J granted the costs certificates to both parties. The court was satisfied that the appeal fulfilled the criteria for a federal appeal and that there was an arguable error of law in the lower court's judgment. Furthermore, the court considered that it had heard the appeal in a formal and public manner, consistent with the requirements under section 6. Strickland J noted that there was no order for costs in favour of either party, which also aligned with the conditions under section 9. Therefore, the court exercised its discretion to grant the certificates to both Ms Manley and Mr Manley.

By consent, the court made orders that the appeal be allowed, certain orders of the Federal Magistrates Court be set aside, the proceedings be remitted for rehearing, and costs certificates be granted to both parties. There was no order as to costs in favour of either party.

Orders