Miller and Harrington - [2009] FamCAFC 12

FAMILY COURT OF AUSTRALIA

MILLER & HARRINGTON

[2009] FamCAFC 12

FAMILY LAW - COSTS – Mother had appealed against the orders of a Family Court Judge – Appeal against the substantive orders dismissed – At hearing oral submissions were made in relation to the appeal against the indemnity costs order made by the trial Judge – Further submissions were sought on this costs issue – Father did not maintain the submission seeking costs assessed on an indemnity basis – Appeal against costs order succeeded – Re-exercise the discretion – Based upon the unchallenged findings of the trial Judge the mother ought pay the costs of the father – Consideration of each application involved in these proceedings – Mother ordered to pay the costs of the Application for Final Orders, father’s cross-application and, given the interlocutory nature of the other applications and their close link to the proceedings for substantive orders, the costs of the applications in a case filed by the mother.

FAMILY LAW - COSTS – Appeal succeeded on a point of law – Certificates granted pursuant to the Federal Proceedings (Costs) Act 1981 to both parties for the appeal

Federal Proceedings (Costs) Act 1981 (Cth)

In the Marriage of Rice and Asplund (1979) FLC 90-725

APPELLANT:

Ms Miller

RESPONDENT:

Mr Harrington

FILE NUMBER:

BRF

6207

2000

APPEAL NUMBER:

2007

DATE DELIVERED:

3 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick, Boland and Murphy JJ

HEARING DATE:

7 March 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 July 2007

LOWER COURT MNC:

[2007] FamCA 1124

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page SC

SOLICITOR FOR THE APPELLANT:

Rees Law

COUNSEL FOR THE RESPONDENT:

Mr Forrest

SOLICITOR FOR THE RESPONDENT:

Murdoch Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Galloway

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Morrison Property and Family Lawyers

Orders

That the appeal against Order 3 of the Orders of Barry J made 31 July 2007 be allowed.
That the said Order 3 be set aside.
That the mother pay the father’s costs of and incidental to:
(i)The Application for Final Orders filed by the mother on 1 March 2006;
(ii)The Application in a Case filed by the mother on 1 March 2006;
(iii)The “cross application” included in paragraph 1 of the amended Response filed by the father on 6 February 2007;
(iv)The Application in a Case filed by the mother on 13 April 2007.
as agreed, and in default of agreement, as assessed save that the solicitors for the father are not to charge for Annexures 1 to 4 inclusive to the affidavit of the father filed 30 March 2006.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 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 mother in respect…

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 Miller and Harrington

Details

AGLC: Miller and Harrington [2009] FamCAFC 12
Case: [2009] FamCAFC 12
Decision Date: 3 February 2009

CaseChat Overview and Summary

Miller and Harrington was an appeal heard by the Family Court of Australia. The mother, the appellant, contested the final orders regarding the care and custody of her children with the father, the respondent. The dispute centred on various issues, including the children's living arrangements, their access to both parents, and the allocation of legal costs.

The legal issues in the appeal included the validity and appropriateness of the final orders made by the primary judge concerning the children's living arrangements and access to the parents. Additionally, the court had to decide on the allocation of legal costs between the parties, taking into account the respective roles and conduct of the parties during the proceedings.

The court found that Order 3 of the primary judge's orders, which pertained to the children's living arrangements, was not in the best interests of the children. Consequently, the court allowed the appeal, set aside Order 3, and ordered the mother to pay the father's costs for several applications and the appeal, with specific exceptions regarding certain annexures. The court also granted costs certificates to both parties and the independent children's lawyer, allowing for potential reimbursement by the Attorney-General under the Federal Proceedings (Costs) Act 1981.

The final orders of the court mandated the setting aside of Order 3 and the payment of legal costs by the mother to the father, subject to certain conditions. Additionally, the court issued costs certificates to facilitate potential reimbursement by the Attorney-General for the costs incurred by the parties and the independent children's lawyer in relation to the appeal.

Orders

Orders of the court

That the appeal against Order 3 of the Orders of Barry J made 31 July 2007 be allowed.

That the said Order 3 be set aside.

That the mother pay the father’s costs of and incidental to:

(i) The Application for Final Orders filed by the mother on 1 March 2006;

(ii) The Application in a Case filed by the mother on 1 March 2006;

(iii) The “cross application” included in paragraph 1 of the amended Response filed by the father on 6 February 2007;

(iv) The Application in a Case filed by the mother on 13 April 2007.

as agreed, and in default of agreement, as assessed save that the solicitors for the father are not to charge for Annexures 1 to 4 inclusive to the affidavit of the father filed 30 March 2006.

That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 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 mother in respect of the costs incurred by the appellant mother in relation to the appeal.

That the court grants to each of the respondent father and the independent children’s lawyer a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the respondent father in relation to the appeal.

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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