T v S - [2015] WASCA 225 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	T -v- S [2015] WASCA 225 (S)

CORAM

: NEWNES JA
MURPHY JA
MITCHELL J

HEARD

:	ON THE PAPERS

DELIVERED

:	2 FEBRUARY 2016

FILE NO/S

:	CACV 103 of 2015

BETWEEN

: T

Appellant
AND
S
Respondent

ON APPEAL FROM:

Jurisdiction

FAMILY COURT OF WESTERN AUSTRALIA

Coram

: DUNCANSON J

Citation

:	[2015] FCWA 50

File No

:	PTW 4345 of 2014

Catchwords:

Family law - Costs of unsuccessful appeal - Costs of unsuccessful application for stay pending appeal to the High Court - Turns on own facts

[2015] WASCA 225 (S)

Legislation:

Family Court Act 1997 (WA), s 211, s 237

Result:

Appellant to pay respondent's costs

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	Bannerman Solicitors
Respondent	:	W G McNally Jones Staff Lawyers

Case(s) referred to in judgment(s):

Hitch v Hitch [2012] FamCAFC 124; (2012) 47 Fam LR 603
KD v GB [2014] WASCA 165 (S)
Mallet v Mallet (1984) 156 CLR 605
Penfold v Penfold (1980) 144 CLR 311
S and T [2015] FCWA 50
S v D [2014] WASCA 224 (S)
T v S [2015] WASCA 225
T v S [No 2] [2015] WASCA 235
Trask v Westlake (Costs) [2015] FamCAFC 214

[2015] WASCA 225 (S)

REASONS OF THE COURT

REASONS OF THE COURT: On 16 November 2015 we dismissed the appellant's appeal against parenting orders in respect of the parties' child, J. The circumstances giving rise to that appeal are described in our principal reasons.[1]
[1] T v S [2015] WASCA 225.

2              On 19 November 2015, Murphy JA and Mitchell J dismissed an
application for a stay of the orders made by the court on 16 November 2015 pending the resolution of an application for special leave to appeal to the High Court.[2]
[2] T v S [No 2] [2015] WASCA 235.
3              The respondent now seeks an order that the appellant pay her costs of
the appeal, including reserved costs,[3] and the application for a stay. The court has made orders for the question of costs to be determined on the papers.
[3] The costs of the appellant's successful application for a stay of the parenting orders made by the Family Court
4              It is common ground that the court's discretion in relation to the costs
of the appeal under s 211(3) of the Family Court Act 1997 (WA) (Act) is governed by s 237 of the Act.[4] Section 237(1) provides that, subject to certain exceptions, each party to proceedings under the Act is to bear the party's own costs.
[4] See S v D [2014] WASCA 224 (S) [5] and cases there cited.
5              The only presently relevant exception to that general rule is found in
s 237(2) of the Act. In its application to the present case, s 237(2) empowers the court to make such order as to…

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 T v S

Details

AGLC: T v S [2015] WASCA 225 (S)
Case: [2015] WASCA 225 (S)
Decision Date: 2 FEBRUARY 2016

CaseChat Overview and Summary

The parties involved in the case were T and S, who were in a contentious family law dispute. The dispute centred around the costs incurred by the unsuccessful party during an appeal to the Court of Appeal and a subsequent unsuccessful application for a stay pending appeal to the High Court. The case was heard by the Supreme Court of Western Australia. The legal issues before the court were whether the unsuccessful party, T, should bear the costs of the appeal and the unsuccessful application for a stay pending appeal to the High Court.

The court considered the relevant legal principles regarding the costs of unsuccessful appeals and applications for a stay pending appeal. It recognised that the costs of unsuccessful appeals and applications for a stay pending appeal turn on their own facts. The court examined the circumstances of the case, including the nature of the appeal, the conduct of the parties, and the outcome of the proceedings. The court determined that the costs of the unsuccessful appeal and the application for a stay pending appeal should be borne by the unsuccessful party, T.

The court emphasised that the costs of unsuccessful appeals and applications for a stay pending appeal should be determined on a case-by-case basis, taking into account the specific circumstances of each case. The court found that T's appeal and application for a stay pending appeal were not well-founded and were therefore unsuccessful. As a result, the court ordered T to pay the costs of the appeal and the unsuccessful application for a stay pending appeal to S. The court's decision highlights the importance of carefully considering the merits of an appeal and the potential consequences of an unsuccessful appeal in terms of costs.

Orders