Sutton & Sutton & Anor - [2013] FamCAFC 176

FAMILY COURT OF AUSTRALIA

SUTTON & SUTTON AND ANOR

[2013] FamCAFC 176

FAMILY LAW – APPEAL – COSTS CERTIFICATES – where the wife appealed against property settlement orders and the husband sought leave to appeal against orders staying those property settlement orders in part – where both appeals were heard by the Full Court and judgment was reserved – where the parties subsequently reached agreement and filed Minutes of Order which the Full Court now makes to finalise the two appeals – where the wife, the husband and the husband’s partner (who was the second respondent in the substantive appeal) each seek a costs certificate in the substantive appeal, and the wife and the husband each seek a costs certificate in the stay appeal – where the Full Court was satisfied the discretion to grant costs certificates should be exercised in favour of the wife and the husband in both appeals, given each were required to undertake significant work in the appeals and incurred legal costs as a result – where the Full Court declined to grant the husband’s partner a costs certificate as the wife did not appeal against the order dismissing her application pursuant to s 106B of the Family Law Act 1975 (Cth) to set aside a property transfer by the husband to his partner and thus, the written and oral submissions made on behalf of the husband’s partner were unnecessary.

Family Law Act 1975 (Cth) ss 106B and 117
Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9

B & B (Costs Certificates) (2007) FLC 93-339

APPELLANT/FIRST RESPONDENT:

Ms Sutton

FIRST RESPONDENT/APPELLANT:

Mr Sutton

SECOND RESPONDENT:

Ms Dixon

FILE NUMBER:

SYC

1584

2010

APPEAL NUMBERS:	EA	79	of	2012
EA	123	of	2012

DATE DELIVERED::

5 November 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace and Murphy JJ

HEARING DATE:

8 July 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 June 2012

30 August 2012

LOWER COURT MNC:

[2012] FamCA 454

REPRESENTATION

COUNSEL FOR THE APPELLANT/
FIRST RESPONDENT:

Mr Campton

SOLICITOR FOR THE APPELLANT/

FIRST RESPONDENT:

E H Tebbutt & Sons

COUNSEL FOR THE FIRST

RESPONDENT/APPELLANT:

Mr Kearney SC

SOLICITOR FOR THE FIRST

RESPONDENT/APPELLANT:

Barkus Doolan Kelly

COUNSEL FOR THE SECOND RESPONDENT:

Mr Millar

SOLICITOR FOR THE SECOND RESPONDENT:

Meyer Partners Family Lawyers

UPON NOTING that paragraph 1 of the orders made by Justice Rees on 15 February 2013 was expressed to be until further order and will no longer operate upon the making of these orders

IT IS ORDERED BY CONSENT

That the Appeal No. EA 79/2012 be allowed.
That the Appeal No. EA 123/2012 be allowed.
That the orders of Coleman J made 8 June 2012 be varied as follows:
(a) That orders 3, 4 and 5 be deleted and substituted with the following:
3. That within 28 days of the date of these orders and simultaneously, the husband and wife do all acts and things and sign all documents necessary to give effect…

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 Sutton & Sutton & Anor

Details

AGLC: Sutton & Sutton & Anor [2013] FamCAFC 176
Case: [2013] FamCAFC 176
Decision Date: 5 November 2013

CaseChat Overview and Summary

In this case, Ms Sutton and Mr Sutton were involved in a legal dispute regarding property settlement orders that were initially made by Coleman J. Ms Sutton appealed against these orders, while Mr Sutton sought leave to appeal against certain orders staying parts of the initial property settlement orders. Both appeals were heard by the Full Court of the Family Court of Australia. The legal issues before the court were whether the appeals should be allowed and, if so, whether costs certificates should be granted to the parties involved.

The court found that both appeals should be allowed, as the parties had reached an agreement and filed Minutes of Order to finalise the appeals. The court also considered the applications for costs certificates, which were sought by Ms Sutton, Mr Sutton, and Ms Dixon (Mr Sutton's partner). The court noted that the discretion to grant costs certificates should be exercised in favour of Ms Sutton and Mr Sutton in both appeals, as they had undertaken significant work and incurred legal costs. However, the court declined to grant a costs certificate to Ms Dixon, as her involvement in the proceedings was deemed unnecessary. The court concluded that it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to Ms Sutton and Mr Sutton in respect of the costs incurred by them in relation to the appeals.

The final orders made by the court allowed both appeals, varied the orders made by Coleman J, and granted costs certificates to Ms Sutton and Mr Sutton. The court also dismissed the application for a costs certificate by Ms Dixon.

Orders