Reisner and Reisner (Costs) - [2010] FamCA 588

FAMILY COURT OF AUSTRALIA

REISNER & REISNER (COSTS)

[2010] FamCA 588

FAMILY LAW - COSTS – Application for costs certificates – Trial judge disqualified himself – New hearing necessary – Discontinuance not attributable to the neglect, default or improper act of any party to the proceedings – Certificates granted.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Cramer v Davies (1997) 72 ALJR 146

APPLICANT:

Ms Reisner

RESPONDENT:

Mr Reisner

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1065

2007

DATE DELIVERED:

15 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

15 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hogan

SOLICITOR FOR THE APPLICANT:

Barry & Nilsson Lawyers

SOLICITOR FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McMillan SC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The Court grants to the mother a costs certificate pursuant to s 10(3) 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 payment under that Act to her in respect of such part as the Attorney-General considers appropriate of any costs incurred by her in relation to the discontinued proceedings.
The Court grants to the father a costs certificate pursuant to s 10(3) 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 payment under that Act to him in respect of such part as the Attorney-General considers appropriate of any costs incurred by him in relation to the discontinued proceedings.
The Court grants to the independent children’s lawyer a costs certificate pursuant to s 10(3) 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 payment under that Act to her in respect of such part as the Attorney-General considers appropriate of any costs incurred by her in relation to the discontinued proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Reisner & Reisner (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1065 of 2007

Ms Reisner

Applicant

And

Mr Reisner

Respondent

REASONS FOR JUDGMENT

This judgment concerns applications made by both of the parties and the independent children’s lawyer for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for the costs incurred by them in discontinued proceedings before Justice Barry.

Background

The mother commenced proceedings on 18 April 2007.
The trial commenced on 20 October 2009 and was adjourned part heard on 23 October 2009.
The trial continued on 22 and 23 April 2010 and was adjourned until 28 April 2010.
On 28 April 2010, counsel for the independent children’s lawyer made an oral application that…

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 Reisner and Reisner (Costs)

Details

AGLC: Reisner and Reisner (Costs) [2010] FamCA 588
Case: [2010] FamCA 588
Decision Date: 15 July 2010

CaseChat Overview and Summary

In *Reisner and Reisner (Costs)*, May J considered applications for costs certificates following the discontinuance of proceedings. The applications were made by the mother, the father, and the independent children's lawyer, all of whom had incurred costs in relation to the discontinued proceedings.

The central legal issue before the Court was whether to grant costs certificates to the parties pursuant to section 10(3) of the *Federal Proceedings (Costs) Act 1981* (Cth). This required the Court to determine if it was appropriate for the Attorney-General to authorise payment of costs to each applicant in respect of their involvement in the discontinued proceedings.

May J reasoned that the discretion to grant a costs certificate under section 10(3) of the *Federal Proceedings (Costs) Act 1981* (Cth) was engaged by the discontinuance of the proceedings. The Court found it appropriate to grant a costs certificate to each of the mother, the father, and the independent children's lawyer. The certificates indicated that, in the Court's opinion, it would be appropriate for the Attorney-General to authorise payment of such part of their incurred costs as the Attorney-General considered appropriate.

Orders

Orders of the court

The Court grants to the mother a costs certificate pursuant to s 10(3) 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 payment under that Act to her in respect of such part as the Attorney-General considers appropriate of any costs incurred by her in relation to the discontinued proceedings.

The Court grants to the father a costs certificate pursuant to s 10(3) 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 payment under that Act to him in respect of such part as the Attorney-General considers appropriate of any costs incurred by him in relation to the discontinued proceedings.

The Court grants to the independent children’s lawyer a costs certificate pursuant to s 10(3) 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 payment under that Act to her in respect of such part as the Attorney-General considers appropriate of any costs incurred by her in relation to the discontinued proceedings.

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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