Rich & Shorland (No 2) - [2019] FamCAFC 163

FAMILY COURT OF AUSTRALIA

RICH & SHORLAND (NO. 2)

[2019] FamCAFC 163

FAMILY LAW – APPEAL – COSTS – Where the appeal was successful – Where the appellant sought that the respondent pay the appellants costs – Where in the alternative the appellant sought a costs certificate – Costs certificates also sought by the respondent – Where appeal succeeded on an error of law – Costs certificates granted to both parties for the appeal and the rehearing of the application.

Family Law Act 1975 (Cth) s 117(2A)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

APPELLANT:

Ms Rich

RESPONDENT:

Mr Shorland

FILE NUMBER:

SYC

4800

2016

APPEAL NUMBER:

120

2018

DATE DELIVERED:

25 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

Heard in chambers on written submissions

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

8 August 2018

LOWER COURT MNC:

[2018] FCCA 1928

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ian Coleman SC

SOLICITOR FOR THE APPELLANT:

Andrew Cohen Solicitor

COUNSEL FOR THE RESPONDENT:

Stephen O'Ryan QC

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

Orders

There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by him in relation to the 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 Rich & Shorland (No. 2) 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 120 of 2018
File Number: SYC 4800 of 2016

Ms Rich

Appellant

and

Mr Shorland

Respondent

REASONS FOR JUDGMENT

On 8 August 2018 a judge of the Federal Circuit Court made orders granting leave to Mr Shorland (the “respondent”) to bring proceedings for property settlement orders notwithstanding that the time for commencing those proceedings had expired.
Ms Rich (“the appellant”) successfully appealed his…

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 Rich & Shorland (No 2)

Details

AGLC: Rich & Shorland (No 2) [2019] FamCAFC 163
Case: [2019] FamCAFC 163
Decision Date: 25 September 2019

CaseChat Overview and Summary

Rich and Shorland (No 2) was an appeal against a decision of the Federal Circuit Court of Australia. The appellant, Rich, sought to appeal against the dismissal of her appeal against the respondent, Shorland, in relation to a matter of family law. The primary issue before the Court was whether the appeal should be allowed, and if not, whether a costs certificate should be issued to either party. This decision was significant as it related to the interpretation of the Federal Proceedings (Costs) Act 1981 (Cth) and the circumstances under which a costs certificate could be granted.

The Court examined the legal principles applicable to costs certificates and the factors that should be considered in determining whether such a certificate should be granted. The Court noted that a costs certificate was not a matter of right but rather a discretionary decision based on the circumstances of the case. The Court considered the merits of the appeal, the conduct of the parties, and the outcome of the proceedings in making its decision. Ultimately, the Court found that neither party was entitled to a costs certificate due to the complexity of the case and the lack of a clear advantage to either party.

In the result, the Court dismissed the appeal and made no order as to costs. However, the Court did grant a costs certificate to both parties under sections 9 and 6 of the Federal Proceedings (Costs) Act 1981 (Cth), respectively. This decision highlighted the importance of considering the principles of fairness and justice when making decisions about costs in family law matters.

Orders

Orders of the court

There be no order as to costs.

The Court grants to the appellant a costs certificate pursuant to 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 appellant in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent 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 in respect of the costs incurred by him in relation to the appeal.

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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