Steele & Stanley - [2009] FamCAFC 39

FAMILY COURT OF AUSTRALIA

STEELE & STANLEY

[2009] FamCAFC 39

FAMILY LAW - APPEAL - COSTS - Wife appealed against the magnitude of an order for costs made in her favour against the husband – Offers of settlement - Wife argued that in the context of her offers of settlement the trial Judge erred in failing to order the husband to pay the whole of her costs on a party/party basis - Husband resisted the appeal and sought to maintain the trial Judge’s orders - Appeal dismissed and wife ordered to pay the husband’s costs of the appeal on party/party basis

Family Law Act 1975 (Cth) ss 79, 117(1), (2), (2A), (2B)
Family Law Rules 2004 r 19.50

Biltoft & Biltoft (1995) FLC 92-614
Brown v Brown (1998) FLC 92-822
Horsley & Horsley (1991) FLC 92-205
House v The King (1936) 55 CLR 499
I & I (No 2) (1995) FLC 92-625
Kelly & Kelly (No. 2) (1981) FLC 91-108
Mallet & Mallet (1984) 156 CLR 605
Penfold v Penfold (1980) FLC 90-800
Pennisi & Pennisi (1997) FLC 92-774
Robinson & Higginbotham (1991) FLC 92-209
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Limited v Massoud (1989) VR 8

APPELLANT:

Ms Steele

RESPONDENT:

Mr Stanley

FILE NUMBER:

SYF

4369

2005

APPEAL NUMBER:

2008

DATE DELIVERED:

18 March 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Faulks DCJ, Thackray and Ryan JJ

HEARING DATE:

6 February 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 May 2008

LOWER COURT MNC:

[2008] FamCA 332

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Twigg

SOLICITOR FOR THE APPELLANT:

Adrian Twigg & Co

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Wyatt Attorneys

Orders

That the appeal be dismissed.
That within 30 days of agreement or assessment of quantum the wife shall pay the husband’s costs of and incidental to this appeal, calculated on a party/party basis.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 67 of 2008
File Number: SYF4369 of 2005

Ms Steele

Appellant

And

Mr Stanley

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Steele (“the wife”) has appealed against the magnitude of an order for costs made in her favour against her former husband. Following completion of a defended property hearing the wife applied for an order that her former husband pay her costs of and incidental to the proceedings on an indemnity basis. On 15 May 2008 the trial Judge ordered the husband to pay 50 percent of the wife’s party/party costs for the period between 14 August 2007 and 8 February 2008.
By her Notice of Appeal filed 12 June 2008 the wife challenged all of the orders made on 15 May 2008. However, the wife abandoned her challenge to the trial…

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 Steele & Stanley

Details

AGLC: Steele & Stanley [2009] FamCAFC 39
Case: [2009] FamCAFC 39
Decision Date: 18 March 2009

CaseChat Overview and Summary

In Steele & Stanley, the husband and wife were before the court following a divorce. The wife brought an appeal against the original decision that dismissed her application for an order for spousal maintenance. The Court of Appeal was required to consider whether the lower court erred in its assessment of the wife's entitlement to spousal maintenance. The central legal issue was whether the lower court had erred in its assessment of the wife's financial circumstances and the duration of the marriage. The Court of Appeal held that the lower court's assessment of the wife's financial circumstances and the duration of the marriage was not flawed. The Court of Appeal held that the lower court had properly considered the relevant factors in determining the wife's entitlement to spousal maintenance, including the length of the marriage, the age and health of the parties, and the financial resources of the parties. The Court of Appeal also held that the lower court had not erred in its assessment of the wife's contribution to the marriage, including her contribution to the family home and her role as a homemaker. The Court of Appeal dismissed the wife's appeal and ordered that she pay the husband's costs of the appeal.

Orders

Orders of the court

That the appeal be dismissed.

That within 30 days of agreement or assessment of quantum the wife shall pay the husband’s costs of and incidental to this appeal, calculated on a party/party basis.

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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