Plantier & Plantier - [2023] FedCFamC1A 228

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Plantier & Plantier [2023] FedCFamC1A 228

Appeal from: Plantier & Plantier (No 3) [2023] FedCFamC2F 1127

Appeal number(s): NAA 273 of 2023

File number(s): DGC 1773 of 2019

Judgment of: TREE J

Date of judgment: 18 December 2023

Catchwords: FAMILY LAW – APPEAL – Appeal from a costs order – Where costs orders will rarely be interfered with on appeal unless the result is plainly unjust or arrived at on wrong principles – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered against wife.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act2021 (Cth) s 36(5)

Cases cited:
Harris and Harris (1991) FLC 92-254; [1991] FamCA 124

House v The King (1936) 55 CLR 499; [1936] HCA 40

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Ressam & Benida [2022] FedCFamC1A 203

Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5

Plantier & Plantier [2022] FedCFamC2F 840

Number of paragraphs: 37

Date of hearing: 14 December 2023

Place: Cairns via Microsoft Teams

The Appellant: Litigant in person

Counsel for the Respondent: Dr Smith

Solicitor for the Respondent: Davison Family Lawyers
ORDERS

DGC 1773 of 2019
NAA 273 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS PLANTIER

Appellant

AND:
MR PLANTIER

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

18 DECEMBER 2023

THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 27 November 2023 is dismissed.
2.The appellant is to pay the respondent’s costs in the sum of $7,500 within 56 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Plantier & Plantier has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION

On 31 August 2023 a judge of the Federal Circuit and Family Court of Australia (Division 2) ordered that Ms Plantier (“the wife”) pay the costs of Mr Plantier (“the husband”) in the sum of $7,560 within 28 days.
By Amended Notice of Appeal filed 27 November 2023, the wife appeals from that order. The husband resists the appeal. For the reasons which follow, the appeal fails and will be dismissed.
BACKGROUND
The wife is presently 59 years of…

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 Plantier & Plantier

Details

AGLC: Plantier & Plantier [2023] FedCFamC1A 228
Case: [2023] FedCFamC1A 228
Decision Date: 18 December 2023

CaseChat Overview and Summary

In this appeal, Ms Plantier appeals against a costs order made by the primary judge in the Federal Circuit and Family Court of Australia. The husband, Mr Plantier, resists the appeal. The court was tasked with determining whether the appeal against the costs order should succeed, and if not, whether costs should be awarded against the appellant. The primary judge had issued a comprehensive 58-paragraph judgment on the costs application, which the wife sought to challenge on appeal. The wife’s grounds of appeal did not demonstrate any clear errors in the primary judge's reasoning or findings that warranted interference with the costs order.

The court examined the grounds of appeal and found that none of them presented a successful challenge to the primary judge’s decision. The delay in the primary judge's determination of the costs application was noted, but it was not argued that this delay constituted an error warranting appellate intervention. The court concluded that the primary judge’s approach to the costs application was sound and that the order was not plainly unjust or based on incorrect legal principles. The appeal was therefore dismissed, and the wife was ordered to pay the husband's costs in the sum of $7,500 within 56 days.

Orders

Orders of the court

DGC 1773 of 2019

NAA 273 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS PLANTIER

Appellant

AND:

MR PLANTIER

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

18 DECEMBER 2023

THE COURT ORDERS THAT:

1. The Amended Notice of Appeal filed 27 November 2023 is dismissed.

2. The appellant is to pay the respondent’s costs in the sum of $7,500 within 56 days.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

By Amended Notice of Appeal filed 27 November 2023, the wife appeals from that order. The husband resists the appeal. For the reasons which follow, the appeal fails and will be dismissed.BACKGROUND The wife is presently 59 years of age, the husband 70. They formed a relationship in 2009, separating some 10 years later in May 2019. Shortly after their relationship commenced, the wife commenced working for the husband who practises as a professional, albeit she ceased that employment in June 2017. Property settlement and spouse maintenance proceedings were commenced by the wife in June 2019. Those proceedings concluded in August 2020. Thereafter the wife commenced Fair Work Act proceedings against the husband in the Federal Court of Australia, alleging that entitlements are owed to her from the time of her employment with the husband. It appears those proceedings remain on foot. On 8 February 2022, the wife sought unsuccessfully to file an Application–Contempt in the Federal Circuit and Family Court of Australia (Division 2). Although she emailed an unsealed version to the husband on that day, it was thereafter rejected for filing. Then on 9 February 2022, the wife filed an Application in a Proceeding which sought the following relief:1. That the matter be listed before [the primary judge].2.That the [wife] be released from the Harman Undertaking and be permitted to provide all documents in this proceeding to the Federal Court […].3.That the [wife] be released from the Harman Undertaking and be permitted to give all documents in this proceeding to the [D Authority].4.That if a charge is found proven, a custodial sentence be imposed on the [husband].5.That if a charge is found proven, that the [husband] be referred to the [D Authority] for investigation.6.Such Orders as this Honourable Court determines. Proposed Orders 4 and 5 clearly related to the rejected 8 February 2022 Application–Contempt. The wife thereafter on 15 February 2022 filed a further Application in a Proceeding seeking similar relief to that claimed in her 9 February 2022 application, and in due course the husband also sought release from the implied undertaking on 20 May 2022. The remaining applications were resolved by the primary judge on 30 June 2022 (Plantier & Plantier [2022] FedCFamC2F 840), including ordering that the wife’s 9 February 2022 Application in a Proceeding was dismissed. The dismissal of the wife’s 9 February 2022 application precipitated a costs application by the husband. However in the 30 June 2022 reasons, the primary judge noted that the husband’s costs submissions made during the 20 May 2022 hearing did not address certain issues, and her Honour therefore made directions as to the filing of further material as to costs, at the conclusion of which the question of costs would be determined on the papers (Order 9 of orders made 30 June 2022). It appears that although the last material under that timetable was received on 10 August 2022, it then took over a year for the application to be determined, with her Honour inexplicably only producing her 58-paragraph judgment on 31 August 2023. That said, no ground of appeal contended any error arising from that delay.

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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DGC 1773 of 2019 NAA 273 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS PLANTIER Appellant
AND:	MR PLANTIER Respondent

Appeal from:	Plantier & Plantier (No 3) [2023] FedCFamC2F 1127
Appeal number(s):	NAA 273 of 2023
File number(s):	DGC 1773 of 2019
Judgment of:	TREE J
Date of judgment:	18 December 2023
Catchwords:	FAMILY LAW – APPEAL – Appeal from a costs order – Where costs orders will rarely be interfered with on appeal unless the result is plainly unjust or arrived at on wrong principles – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered against wife.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia Act2021 (Cth) s 36(5)
Cases cited:	Harris and Harris (1991) FLC 92-254; [1991] FamCA 124 House v The King (1936) 55 CLR 499; [1936] HCA 40 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Ressam & Benida [2022] FedCFamC1A 203 Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5 Plantier & Plantier [2022] FedCFamC2F 840
Number of paragraphs:	37
Date of hearing:	14 December 2023
Place:	Cairns via Microsoft Teams
The Appellant:	Litigant in person
Counsel for the Respondent:	Dr Smith
Solicitor for the Respondent:	Davison Family Lawyers

ORDER MADE BY:	TREE J
DATE OF ORDER:	18 DECEMBER 2023