VC and GC (Costs) - [2010] FamCAFC 222

FAMILY COURT OF AUSTRALIA

VC & GC (COSTS)

[2010] FamCAFC 222

FAMILY LAW - APPEAL – COSTS OF APPEAL – Appellant wife not wholly successful in appeal - Where appellant wife’s partial success arose because of errors of trial judge – Circumstances do not justify a departure from s 117(1) of the Family Law Act 1975 (Cth) – Appropriate to grant a certificate under s 6 of the Federal Proceedings (Costs) Act 1981(Cth) to the wife - Appropriate to grant a certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) to the husband – Where approach adopted by 2^nd to 5^th respondents to appeal a relevant consideration – Not appropriate to grant certificates under the Federal Proceedings Costs Act 1981 (Cth) to the 2^nd to 5^th respondents.

Family Law Act 1975 (Cth) ss 24(4)(a), 117

Federal Proceedings (Costs) Act 1981(Cth) ss 6, 8, 9

Penfold & Penfold (1988) 144 CLR 311

APPELLANT:

1ST RESPONDENT:

2ND RESPONDENT:

The executors of the Estate of DC

3RD RESPONDENT:

XYZ Pty Ltd

4TH RESPONDENT:

5TH RESPONDENT:

FILE NUMBER:

PTW

4624

2006

APPEAL NUMBER:

2009

DATE DELIVERED:

5 November 2010

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Boland & Thackray JJ

HEARING DATE:

By way of written submissions filed 19 April 2010, 3 May 2010 and 11 May 2010

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

18 December 2008

LOWER COURT MNC:

[2008] FCWA148

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Berry

SOLICITOR FOR THE APPELLANT:

Elizabeth Wiese & Associates

COUNSEL FOR THE 1ST RESPONDENT:

Dr Dickey QC

SOLICITOR FOR THE 1ST RESPONDENT:

O’Sullivan Davies

COUNSEL FOR THE 2ND, 3RD, 4TH & 5TH RESPONDENTS:

Dr Ingleby with Mr Elder

SOLICITOR FOR THE 2ND, 3RD, 4TH & 5TH RESPONDENTS:

Kim Wilson & Co

Orders

There be no order as to costs.
The Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by him in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym VC & GC and Ors (Costs) 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 PERTH

Appeal Number: WA 2 of 2009
File Number: PTW 4624 of 2006

Appellant

And

First Respondent

And

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 VC and GC (Costs)

Details

AGLC: VC and GC (Costs) [2010] FamCAFC 222
Case: [2010] FamCAFC 222
Decision Date: 5 November 2010

CaseChat Overview and Summary

The case of VC and GC involved a dispute between a husband and wife over costs incurred in the course of an appeal. The matter was heard in the Family Court of Australia. The wife, the appellant, appealed a decision regarding costs, while the husband, the respondent, sought costs for the appeal process.

The legal issues before the court centred on the appropriateness of awarding costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth). The court had to consider whether it would be appropriate for the Attorney-General to authorise payments to cover the costs incurred by each party in relation to the appeal. The court examined the statutory framework and the relevant provisions of the Act, focusing on sections 6 and 9, to determine the appropriateness of such payments.

In its reasoning, the court found that it would be appropriate for the Attorney-General to authorise payments to both parties. The court granted a costs certificate to the wife under section 9 of the Act, indicating that it would be appropriate for the Attorney-General to authorise a payment to cover the costs incurred by her in relation to the appeal. Similarly, the court granted a costs certificate to the husband under section 6 of the Act, recognising the appropriateness of a payment to cover his costs. The court did not make any order as to costs but provided certificates that would enable the Attorney-General to consider these payments.

The final orders of the court included no order as to costs and the granting of costs certificates to both the appellant and the respondent under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

There be no order as to costs.

The Court grants to the appellant wife a costs certificate pursuant to 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 in respect of the costs incurred by her in relation to the 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 in respect of the costs incurred by him in relation to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.