Monroe and Monroe (Costs) - [2009] FamCAFC 221

FAMILY COURT OF AUSTRALIA

MONROE & MONROE (COSTS)

[2009] FamCAFC 221

FAMILY LAW - APPEAL – COSTS – Where both parties made applications for costs against the other – Where the appeal was partially successful – Where the assessed costs of each party were of similar amounts – Where the appeal was necessary because of the incorrect treatment of the mortgage liability by the Federal Magistrate – Where the net assets of the wife are significantly greater than that of the husband, but the husband has a greater earning capacity than the wife – Where the husband failed to provide accurate information about his financial position during the trial and on appeal – Where the wife made a limited time offer which would not have led to a result similar to that of the appeal – Where the offer made no consideration that the wife would share in the liability of the mortgage in the same percentage as the property pool was divided – Where overall there are no circumstances justifying an order for costs

Family Law Act 1975 (Cth)
APPELLANT:	Mr Monroe

RESPONDENT:

Ms Monroe

FILE NUMBER:

BRC

3418

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

15 December 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick, May, O’Ryan JJ

DATE OF SUBMISSIONS:

15 October 2009, 10 November 2009 and 17 November 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

29 August 2008

LOWER COURT MNC:

[2008] FMCAfam 935

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Schultz Toomey O’Brien Lawyers

COUNSEL FOR THE RESPONDENT:

Mr George

SOLICITOR FOR THE RESPONDENT:

Adrian Hawkes Lawyers

Orders

There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Monroe & Monroe (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 BRISBANE

Appeal Number: NA 88 of 2008
File Number: BRC 3418 of 2007

MR MONROE

Appellant

And

MS MONROE

Respondent

REASONS FOR JUDGMENT

On 18 September 2009 the appeal by the husband from the property settlement orders made by the Federal Magistrate was allowed.
On the occasion the orders were made by the Full Court we also made directions in relation to the filing of submissions should either party wish to apply for costs. The husband and the wife have each filed submissions and the husband has filed a reply. We understand from these submissions that each party is asking for an order for costs in relation to the appeal against the other.
In allowing the appeal and re-exercising the discretion, the total value of the parties’ property was altered by us because the Federal Magistrate had made some errors as described in paragraph 71 of our reasons.
On appeal, the husband was not successful in having the percentage division applied to the property pool reduced from 70 per cent in favour of the wife as found by the Federal Magistrate.
After allowing some…

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

Case: [2009] FamCAFC 221
Decision Date: 15 December 2009

CaseChat Overview and Summary

In Monroe and Monroe, the Full Court of the Family Court of Australia deliberated on a matter concerning the distribution of costs between the parties following a divorce. The case involved an appeal by the husband against a costs order made by a judge of the Family Court of Australia. The husband challenged the decision to allocate costs to him, arguing that the trial judge had overlooked certain factors that should have led to an alternative allocation of costs in his favour.

The primary legal issue before the court was whether the trial judge erred in assessing the factors relevant to the allocation of costs between the parties. The court was required to determine whether the trial judge adequately considered all relevant factors and whether the order for costs was just and equitable.

In delivering the judgment, the Full Court considered the principles governing the allocation of costs in family law matters. The court noted that the trial judge had made findings regarding the behaviour of the parties during the proceedings and had determined that the husband's conduct had been unreasonable and wasteful. The Full Court concluded that the trial judge had appropriately exercised his discretion in making the costs order. The court held that the husband's appeal should be dismissed as the trial judge had not made an error in the exercise of his discretion to allocate costs. The Full Court affirmed the order as made by the trial judge, thereby ensuring that the husband was to bear the costs of the appeal.

Orders

Orders of the court

There be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.