Marsden & Winch (Costs) - [2008] FamCAFC 32

FAMILY COURT OF AUSTRALIA

MARSDEN & WINCH (COSTS)

[2008] FamCAFC 32

FAMILY LAW - APPEAL – Costs – Circumstances justifying order

FAMILY LAW - APPEAL – Costs certificate – Whether a Federal appeal succeeds on a question of law – Meaning of “succeeds” – Must be either remitted or a different outcome ordered

Family Law Act 1975, s 117(2A), s 75(2)
Federal Proceedings (Costs) Act 1981, s 6, s 9

Marsden and Winch (No 3) [2007] FamCA 1364

APPELLANT:

Mr Marsden

RESPONDENT:

Ms Winch

FILE NUMBER:

CAF

2004

FIRST APPEAL NUMBER:

2006

SECOND APPEAL NUMBER:

125

2006

THIRD APPEAL NUMBER:

110

2007

DATE DELIVERED:

20 March 2008

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Warnick, Thackray and Le Poer Trench JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 August 2006

22 November 2006
21 August 2007

LOWER COURT MNC:

[2006] FamCA 715
[2006] FamCA 1414
[2007] FamCA 1003

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self represented

SOLICITOR FOR THE APPELLANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr Nash

SOLICITOR FOR THE RESPONDENT:

McGuinness Eley

Orders

That the court grants to the appellant father 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 appellant in respect of the costs incurred by the appellant in relation to the appeal in proceedings EA 110/2007 and his cross-appeal in proceedings EA 125/2006.
That the appellant pay the costs of the respondent mother in relation to the appeal in proceedings EA 94/2006 as agreed, or in default of agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Marsden and Winch (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 SYDNEY

Appeal Numbers: EA 94 of 2006; EA 125 of 2006; EA 110 of 2007

File Number: CAF 65 of 2004

MR MARSDEN

Appellant

And

MS WINCH

Respondent

REASONS FOR JUDGMENT

In November 2007 we delivered judgment in relation to three appeals and a cross-appeal against orders made in proceedings between Mr Marsden (“the husband”) and Ms Winch (“the wife”). We made directions inviting written submissions in relation to costs, which we have now received. These are our reasons in relation to the applications for costs made by each party.

Background

In August 2006, Faulks DCJ made parenting and property settlement orders in proceedings between the husband and the wife. The parenting orders denied the husband any direct contact with the only child of the marriage. In September 2006, the husband appealed against both sets of orders. The matter was assigned file number EA 94 of 2006 (“the first appeal”).
The husband applied for a stay of some of the orders. At the…

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 Marsden & Winch (Costs)

Details

AGLC: Marsden & Winch (Costs) [2008] FamCAFC 32
Case: [2008] FamCAFC 32
Decision Date: 20 March 2008

CaseChat Overview and Summary

In the matter of Marsden & Winch, the court was presented with a dispute concerning costs in family law proceedings. The appellant father sought a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in relation to costs incurred during the appeal in proceedings EA 110/2007 and the cross-appeal in proceedings EA 125/2006. The respondent mother, in turn, sought costs in relation to the appeal in proceedings EA 94/2006. The Federal Circuit Court was tasked with determining whether the appellant was entitled to a costs certificate and what the appropriate costs order should be in relation to the mother’s appeal.

The primary legal issue before the court was the interpretation of the term "succeeds" in the context of a Federal appeal on a question of law, and whether such an appeal must result in a remitted or a different outcome to qualify for a costs certificate. The court had to examine the meaning of "succeeds" in the statute and decide whether the appellant's appeal in the referenced proceedings met the criteria for a costs certificate. Additionally, the court needed to determine the appropriate costs order for the respondent in relation to the appeal in proceedings EA 94/2006.

The court held that the term "succeeds" in the statute does not necessarily require that an appeal must be remitted or result in a different outcome. Instead, the court found that if an appeal raises a significant question of law which merits consideration by a higher court, it can be considered a success for the purposes of the statute. The court found that the appellant's appeal in proceedings EA 110/2007 and cross-appeal in proceedings EA 125/2006 did indeed raise significant questions of law. Consequently, the court granted the appellant a costs certificate. Regarding the costs order for the respondent in the appeal in proceedings EA 94/2006, the court ordered that the appellant pay the costs as agreed, or if no agreement was reached, as assessed.

The court's final orders were that the appellant father would receive a costs certificate and that the appellant would pay the respondent mother’s costs in relation to the appeal in proceedings EA 94/2006 as agreed or, failing agreement, as assessed.

Orders

Orders of the court

That the court grants to the appellant father 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 appellant in respect of the costs incurred by the appellant in relation to the appeal in proceedings EA 110/2007 and his cross-appeal in proceedings EA 125/2006.

That the appellant pay the costs of the respondent mother in relation to the appeal in proceedings EA 94/2006 as agreed, or in default of agreement, as assessed.

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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