Petran and Petran (No 2)

[2020] FamCAFC 81

FAMILY COURT OF AUSTRALIA

PETRAN & PETRAN (NO. 2) [2020] FamCAFC 81

FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where consequent upon the orders being made in relation to the appeal the applicant filed an Application seeking an order for costs of the amount paid by her to obtain the transcript of the hearing before the primary judge for the purposes of the appeal – Where there is no basis put by the applicant for an order for costs to be made against the respondent and there is no obvious basis for such an order to be made in any event – Where the respondent did not lead the primary judge into making the orders the subject of the appeal – Where it was appropriate for the respondent to oppose the appeal given that only one of the five grounds of appeal succeeded – Where the appeal succeeded on questions of law – Where it is appropriate for the parties to each be given a costs certificate for the appeal – Where costs certificates should not issue for the rehearing – Costs certificates ordered for the appeal only.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9

APPLICANT: Ms Petran

RESPONDENT: Mr Petran

FILE NUMBER: ADC 3713 of 2017

APPEAL NUMBER: SOA 39 of 2019

DATE DELIVERED: 16 April 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: Written submissions in chambers

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 12 July 2019

LOWER COURT MNC: [2019] FCCA 1853

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In Person

Orders

1. The Court grants to the applicant mother 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 applicant mother in respect of the costs incurred by her in relation to this appeal.

2. The Court grants to the respondent father a costs certificate pursuant to the provisions of 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 that Act to the respondent father in respect of the costs incurred by him in relation to this appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Petran & Petran has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number:  SOA 39 of 2019
File Number:  ADC 3713 of 2017

Ms Petran

Applicant

And

Mr Petran

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 17 January 2020, this Court made orders in relation to the Amended Notice of Appeal filed by Ms Petran (“the mother”) on 13 December 2019.

2. Those orders were as follows:

   (1)      The appeal be allowed.

   (2)The order made on 17 June 2019 dismissing the Application Alleging Contravention filed by the father on 25 February 2019 be set aside.

   (3)Paragraphs (14) – (19) inclusive of the Order made on 12 July 2019 be set aside.

   (4)Paragraph (35) of the Order made on 12 July 2019 be set aside insofar as that order dismissed the Application Alleging Contravention filed by the mother on 14 June 2019.

   (5)The said applications alleging contravention but specifically the question of whether paragraphs (14) – (19) inclusive of the Order made on 9 November 2018 should be varied and if so how, be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Brown.

3. Consequent upon those orders, on 13 February 2020, the mother filed an Application in an Appeal seeking an order for costs, namely the cost of obtaining the transcript for the purposes of the appeal, being an amount of $708.24.

4. On 26 February 2020, Mr Petran (“the father”) filed a Response seeking dismissal of the application, in the alternative, orders that each party be given a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), or in the further alternative, an order that the father pay 20 per cent of the mother’s costs.

Discussion

1. There is no basis put by the mother for an order for costs to be made against the father. Indeed, there is no obvious basis for such an order to be made; the father did not lead the primary judge into making the orders the subject of the appeal, and it was reasonable for the father to oppose the appeal, given that only one of the five grounds of appeal was successful, albeit an important one, and which led to the appeal being allowed.

2. The appeal succeeded because his Honour erred on questions of law, and thus it is appropriate for the parties to each be given a costs certificate, but only for the appeal. A rehearing of specific issues was ordered, but I am not persuaded that costs certificates for that rehearing are appropriate in the circumstances.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 16 April 2020.

Associate: 

Date:  16 April 2020