SPENCER & SPENCER - [2020] FamCAFC 55

FAMILY COURT OF AUSTRALIA

SPENCER & SPENCER

[2020] FamCAFC 55

FAMILY LAW – APPEAL – COSTS – Appeal against order dismissing application for costs – Where the primary judge in the costs application was not the same judge who determined the property proceedings – Where the primary judge found there were no circumstances justifying a costs order being made – Assertion of apprehended bias on the part of the primary judge – Where the appellant asserts insufficient weight was placed on the findings of the property trial judge – Where all grounds of appeal are unmeritorious – Appeal dismissed.

FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Appeal against order summarily dismissing an application brought pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the primary judge was not satisfied there was an undisclosed change in the respondent’s financial circumstances prior to trial warranting new property proceedings – Where the appellant sought to adduce further evidence – Evidence of no relevance to the proper determination of the appeal – Assertions of apprehended bias and procedural unfairness – Assertions of errors of law and fact and failure to take into account relevant matters – Where all grounds of appeal are unmeritorious – Applications dismissed – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought a costs order against the appellant – Where the appellant has been wholly unsuccessful in both appeals – Where the appellant’s conduct has caused the respondent to incur additional costs – Where impecuniosity is not of itself a barrier to an order for costs – Costs order granted in favour of the respondent against the appellant.

Family Law Act 1975 (Cth) ss 75, 79A, 94AAA and 117
Partnership Act 1895 (WA) s 44 and s 56
Family Law Rules 2004 (Cth) r 1.12 and r 10.12

Browne v Green (2002) FLC 93-115; [2002] FamCA 791
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Harris and Harris (1991) FLC 92-254; [1991] FamCA 124
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lenova and Lenova (Costs) [2011] FamCAFC 141
Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPELLANT:

Ms Spencer

RESPONDENT:

Mr Spencer

FILE NUMBER:

PTW

7180

2010

APPEAL NUMBERS:

WEA
WEA

21
15

of
of

2018
2019

DATE DELIVERED:

13 March 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland, Ryan & O’Brien JJ

HEARING DATE:

15 October 2019

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

25 May 2018;
29 March 2019

LOWER COURT MNC:

[2018] FCWA 100;
[2019] FCWA 71

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Turley

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: SPENCER & SPENCER [2020] FamCAFC 55
Case: [2020] FamCAFC 55
Decision Date: 13 March 2020

CaseChat Overview and Summary

The case of Spencer & Spencer involved an appeal by the wife against two separate orders made in the Family Court. The first appeal challenged the dismissal of an application for costs, while the second appeal contested the summary dismissal of an application for new property proceedings. The wife appealed on various grounds, including alleged bias of the primary judge, errors of law and fact, and procedural unfairness. The husband cross-appealed for costs.

The court considered whether the primary judge had erred in dismissing the wife's applications. It examined whether the primary judge was correct in finding that there were no circumstances justifying a costs order, and whether there was an undisclosed change in the husband's financial circumstances warranting new property proceedings. The court also assessed the wife's claims of apprehended bias and procedural unfairness. After thorough analysis, the court found all grounds of appeal to be unmeritorious.

The appeal was dismissed, and the wife was ordered to pay the husband's costs of and incidental to the appeals in the sum of $17,825.79. This decision was based on the wife's wholly unsuccessful appeals and her conduct that caused the husband to incur additional costs. The court noted that the wife's impecuniosity did not preclude an order for costs.

The final orders of the court were to dismiss the application in an appeal, dismiss both appeals, and order the wife to pay the husband's costs of the appeals.

Orders

Orders of the court

The Application in an Appeal filed on 16 August 2019 be dismissed.

Appeal nos. WEA 21 of 2018 and WEA 15 of 2019 be dismissed.

The appellant wife pay the costs of the respondent husband of and incidental to the said appeals fixed in the total sum of $17,825.79.

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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