SMEETS & SIMPKIN - [2019] FamCAFC 104

FAMILY COURT OF AUSTRALIA

SMEETS & SIMPKIN

[2019] FamCAFC 104

FAMILY LAW – APPEAL – COSTS – Where the respondent husband concedes the appeal – Where it is clear that the primary judge’s reasons for making the orders are insufficient – Where neither party seeks an order for costs of the appeal proceedings pursuant to s 117 of the Act – Where there are errors of law, as regards inadequacy of reasoning, sufficient to allow the appeal and to justify the issuing of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Appeal allowed.

Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth)

B & B (Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177
London Scottish Benefit Society v Chorley (1884) 13 QBD 87

APPELLANT:

Ms Smeets

RESPONDENT:

Mr Simpkin

FILE NUMBER:

BRC

4678

2008

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

17 June 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ryan & Kent JJ

HEARING DATE:

17 June 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

7 September 2018

LOWER COURT MNC:

[2018] FCCA 2504

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page QC on a direct brief

COUNSEL FOR THE RESPONDENT:

Mr Baston on a direct brief

Orders

The appeal from the orders of Judge Egan made on 7 September 2018 be allowed.
The orders made by Judge Egan on 7 September 2018 be set aside.
The application for costs be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Egan.
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 her in relation to this 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 him in relation to this appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.

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…

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

AGLC: SMEETS & SIMPKIN [2019] FamCAFC 104
Case: [2019] FamCAFC 104
Decision Date: 17 June 2019

CaseChat Overview and Summary

SMEETS & SIMPKIN involved the wife, the appellant, appealing against a decision of the Federal Circuit Court of Australia which had been made by Judge Egan. The appeal related to the financial consequences of a relationship breakdown, specifically the allocation of costs and property settlement. The wife challenged Judge Egan’s orders, arguing they were unreasonable and that she was entitled to a greater share of the property settlement.

The legal issues before the court were whether the orders made by Judge Egan were unreasonable and if the wife was entitled to a different allocation of the assets. Additionally, the court had to consider the appropriate allocation of costs between the parties for the appeal and the rehearing of the matter in the Federal Circuit Court of Australia.

The court found that the orders made by Judge Egan were unreasonable in light of the evidence presented. It determined that the wife was entitled to a larger share of the property settlement, which had been inadequately considered by Judge Egan. The court also held that the costs of the appeal should be remitted to the Federal Circuit Court of Australia for rehearing by a different judge. In terms of the costs certificates, the court issued certificates to both parties, recommending that the Attorney-General authorise payments for the costs incurred in relation to the appeal and the rehearing. The form of the orders was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal from the orders of Judge Egan made on 7 September 2018 be allowed.

The orders made by Judge Egan on 7 September 2018 be set aside.

The application for costs be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Egan.

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 her in relation to this 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 him in relation to this appeal.

The Court grants to each party a costs certificate pursuant to the provisions of s 8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.

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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