RITTMAN & RITTMAN (COSTS NO. 2) - [2013] FamCAFC 9

FAMILY COURT OF AUSTRALIA

RITTMAN & RITTMAN (COSTS NO. 2)

[2013] FamCAFC 9

FAMILY LAW – APPEAL - COSTS

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

APPELLANT:

Ms Rittman

RESPONDENT:

Mr Rittman

INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar

APPEAL NUMBER:

2011

FILE NUMBER:

BRC

2571

2009

DATE DELIVERED:

15 February 2013

PLACE DELIVERED:

Sydney

DATE HEARD:

18 October 2012

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

Coleman, Strickland & Ainslie-Wallace JJ

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 April 2011

LOWER COURT MNC:

[2011] FamCA 228

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Galloway

SOLICITOR FOR THE APPELLANT:

Pippa Colman & Associates

COUNSEL FOR THE RESPONDENT:

Mr Waterman

SOLICITOR FOR THE RESPONDENT:

Harrington Family Lawyers

FOR INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders

The Court grants to the appellant wife 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 appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.
The Court grants to the respondent husband 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 husband in respect of the costs incurred by the respondent husband in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rittman & Rittman (Costs No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 29 of 2011
File Number: BRC 2571 of 2009

Ms Rittman

Appellant

And

Mr Rittman

Respondent

REASONS FOR JUDGMENT

On 12 September 2012 we delivered judgment in relation to an appeal brought by the wife against a costs order made by Barry J on 1 April 2011. The appeal was allowed, his Honour’s order for costs set aside and we re-exercised his Honour’s discretion and made orders in relation to the husband’s costs, ordering the wife to pay 60 per cent of the husband’s costs assessed on an indemnity basis.
We then directed that the parties make submissions in writing as to the costs of the appeal.
On 18 October 2012 the parties, through their solicitors, filed a joint submission as to the costs of the appeal.
The husband and wife jointly submitted that, in the circumstances of this matter, the Court make no order for costs against either party, but that costs certificates be granted to each party pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
The trial before 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.

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Details

Case: [2013] FamCAFC 9
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia was presented with an appeal concerning the costs of a previous proceeding that involved both parenting and property matters between Ms Rittman and Mr Rittman. The appeal pertained to an order made by Barry J, which required Ms Rittman to pay two-thirds of Mr Rittman's costs amounting to $250,000. The lower court had ordered Ms Rittman to pay $225,000 of the husband's costs. The primary legal issues the court needed to address were the appropriateness of the costs order made by Barry J and whether the wife's conduct justified the imposition of such costs. The Full Court had to determine if the original costs order was reasonable and if the wife's allegations were justified.

The Full Court examined the grounds for the appeal and found that the wife's appeal was successful on one count, which was the assessment of the quantum of costs. The Court held that the trial judge's comparison of the costs incurred by both parties did not provide a sufficient basis for concluding that the husband's costs were reasonable. The Court concluded that each party should bear their own costs for the appeal. The Full Court determined that the appeal had succeeded on a question of law, which made it an appropriate case for issuing costs certificates. These certificates would relate only to the appeal and would not involve a rehearing of the matter.

Consequently, the Court granted a costs certificate to Ms Rittman pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) and a costs certificate to Mr Rittman pursuant to s 6 of the same Act. The Court found it appropriate for the Attorney-General to authorise a payment under the Act to each party in respect of the costs incurred by them in relation to the appeal. This decision ensured that each party bore the costs of the appeal, aligning with the Full Court's decision that neither party should be ordered to pay the other's costs.

Orders