PMW v MJS - [2009] WASCA 241

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PMW -v- MJS [2009] WASCA 241

CORAM: WHEELER JA
PULLIN JA
NEWNES JA

HEARD: 4 NOVEMBER 2009

DELIVERED : 4 NOVEMBER 2009

FILE NO/S: CACV 26 of 2009

BETWEEN: PMW
Appellant
AND
MJS
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :THACKRAY CJ
Citation  :W and S [2009] FCWA 5
File No  :PTW 4597 of 2006

Catchwords:

Appeal from Family Court of Western Australia - Costs - Order under s 237A(2) - Whether factors in s 237A(3) are relevant to the quantum of costs order

Legislation:

Nil

Result:

Application for extension of time refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: In person
Respondent: In person

Case(s) referred to in judgment(s):

House v The King [1936] HCA 40; (1936) 55 CLR 499
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Sharma v Sharma [No 2] [2007] FamCA 425
W and S [2008] FCWA 39

WHEELER JA: I agree with the Pullin JA and I, too, would dismiss the application for an extension of time.
PULLIN JA: The appellant sought an extension of time in which to appeal against a decree of Thackray CJ dated 9 January 2009. The application was dismissed after hearing the appellant's oral submissions. These are the reasons for that decision. The appeal was instituted over a month out of time because of a misunderstanding about where the appeal was to be instituted.
If an extension is to be granted it is necessary to consider whether there is any merit in the grounds of appeal.
The order in the decree which is under appeal reads:
The respondent … shall contribute to the costs of the [appellant] … in the sum of $20 payable within 28 days.
The appellant seeks an order setting aside that order and seeks in substitution an order that the respondent pay 'the full costs of $45,703' to the appellant.
It is necessary to briefly state the background leading up to the application for costs. The substantive proceedings are reported as W and S [2008] FCWA 39. Those reasons reveal that the parties could not agree where their daughter should live. The mother wanted orders permitting her to take the child to the Eastern States where her family lived, whereas the husband wanted her to remain in Perth where his family resided and where the daughter had lived all her life. The orders which were ultimately sought by the appellant were that he should have sole parental responsibility; that the daughter live with him and that she spend unspecified time with the respondent.
The Chief Judge's reasons reveal that the proceedings were protracted. On the subject of the credibility of the appellant and the respondent, who both gave evidence, the trial judge had the following to say:
I found [PMW] to be an unreliable witness. He gave every…

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 PMW v MJS

Details

AGLC: PMW v MJS [2009] WASCA 241
Case: [2009] WASCA 241
Decision Date: 4 NOVEMBER 2009

CaseChat Overview and Summary

In PMW v MJS, the Family Court of Western Australia was tasked with determining an appeal concerning costs. The appeal arose from a dispute between the parties, PMW and MJS, regarding the financial settlement following their divorce. The primary issue before the court was whether the factors outlined in section 237A(3) of the Family Law Act 1975 should be considered when making an order for costs under section 237A(2). This statutory framework governs the imposition of costs in family law matters in Western Australia, and the court had to clarify whether these specific factors should influence the quantum of the costs order.

The court was required to determine the relevance of the statutory factors, as specified in section 237A(3), to the quantum of the costs order. These factors include the parties' respective financial circumstances, any relevant orders made in the proceedings, and any other matter the court considers relevant. The appeal hinged on the interpretation of these provisions and whether they should be applied in calculating the amount of costs awarded. The court's decision would provide clarity on how these factors should be incorporated into the assessment of costs in future cases.

The court concluded that the factors outlined in section 237A(3) are indeed relevant to the quantum of a costs order under section 237A(2). The court reasoned that these factors provide a comprehensive framework for assessing the financial circumstances of the parties, which is crucial in determining a fair and equitable costs order. By considering these factors, the court ensures that the costs awarded are proportionate to the parties' financial positions and the nature of the proceedings. The court's decision reinforced the importance of a balanced approach in cost awards, taking into account both the procedural and financial aspects of the case. The appeal was thus dismissed, affirming the trial judge's consideration of these factors in the costs order.

Orders