FAMILY COURT OF AUSTRALIA
| NORD & VAN | [2018] FamCAFC 75 |
| FAMILY LAW – APPEAL – where leave to amend grounds of appeal was not opposed and was granted – where the trial judge determined the existence of a de facto relationship and made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – where a party can appeal a s 90RD declaration as of right and therefore leave to appeal is not required – where the appellant contended that the evidence before the trial judge did not support the finding of the existence of a de facto relationship – where the trial judge made adverse findings in respect of the appellant’s credibility at trial – where the trial judge preferred the evidence of the respondent and her witness and placed greater weight upon it – where the trial judge’s ultimate finding of fact as to the existence of a de facto relationship could not be said to be wrong by reference to “incontrovertible facts or uncontested testimony” or is “glaringly improbable” or “contrary to compelling inferences” – where the appellant appealed an order that he pay the respondent’s costs of trial in the fixed sum of $30,000 – where the appellant alleged the trial judge failed to consider relevant s 117(2A) factors – where the trial judge clearly considered s 117(2A) – where the appellant contended he was not provided an opportunity to make submissions in respect of costs – where the trial judge provided ample opportunity for the appellant to make submissions as to costs – where there is no evidence that the trial judge exercised his discretion to make a costs order on wrong principles – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $7,000. |
| Family Law Act 1975 (Cth) ss 4AA, 90RD, 90RH, 90SM, 117 Family Law Rules 2004 (Cth) r 19.18(1)(a) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20 Collins and Collins (1985) FLC 91-603; [1985] FamCA 15 Dahl & Hamblin (2011) FLC 93-480; [2011] FamCAFC 202 Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Harris and Harris (1991) FLC 92-254 Kohan and Kohan (1993) FLC 92-340 Licul v Corney (1976) 180 CLR 213; [1972] HCA 6 McAlpin and McAlpin (1993) FLC 92-411; [1993] FamCA 71 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4 Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129 |
| APPELLANT: | Mr Nord |
| RESPONDENT: | Ms Van | |||||
| FILE NUMBER: | ||||||
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Details
- AGLC
- Nord & Van [2018] FamCAFC 75
- Case
- [2018] FamCAFC 75
- Decision Date
CaseChat Overview and Summary
Nord and Van came before the court in an appeal against a determination made by the trial judge under section 90RD of the Family Law Act 1975 (Cth). The appellant, Nord, challenged the trial judge’s finding that a de facto relationship existed between him and Van, as well as the trial judge’s order that Nord pay Van’s trial costs in the fixed sum of $30,000. Nord contended that the evidence did not support the trial judge’s finding and that the trial judge had failed to consider relevant factors when making the costs order.
The court examined whether the trial judge’s finding of a de facto relationship was supported by the evidence. It noted that Nord's challenge to the trial judge's findings was unsuccessful, as the trial judge’s ultimate finding could not be said to be wrong by reference to “incontrovertible facts or uncontested testimony” or was “glaringly improbable” or “contrary to compelling inferences”. The court also considered Nord's argument regarding the costs order, finding that the trial judge had considered the relevant factors under section 117(2A) and provided Nord with ample opportunity to make submissions on costs. The court held that the trial judge did not exercise his discretion to make a costs order on wrong principles.
The appeal was dismissed, and Nord was ordered to pay Van’s costs of the appeal fixed in the sum of $7,000 within thirty days. The form of the order is subject to the entry of the order in the Court’s records.
The court examined whether the trial judge’s finding of a de facto relationship was supported by the evidence. It noted that Nord's challenge to the trial judge's findings was unsuccessful, as the trial judge’s ultimate finding could not be said to be wrong by reference to “incontrovertible facts or uncontested testimony” or was “glaringly improbable” or “contrary to compelling inferences”. The court also considered Nord's argument regarding the costs order, finding that the trial judge had considered the relevant factors under section 117(2A) and provided Nord with ample opportunity to make submissions on costs. The court held that the trial judge did not exercise his discretion to make a costs order on wrong principles.
The appeal was dismissed, and Nord was ordered to pay Van’s costs of the appeal fixed in the sum of $7,000 within thirty days. The form of the order is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The appellant have leave to amend the grounds of appeal by substituting the two grounds of appeal stated in his Summary of Argument filed on 20 March 2018.
2.
The appeal be dismissed.
3.
The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $7,000 within thirty (30) days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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