Walter & Walter (Costs) - [2016] FamCAFC 103

FAMILY COURT OF AUSTRALIA

WALTER & WALTER (COSTS)

[2016] FamCAFC 103

FAMILY LAW – APPEAL – CHILDREN – COSTS – where the appeal was dismissed – where the appellant was “wholly unsuccessful” – where the circumstances of the case justify the departure from s 117(1) of the Family Law Act1975 (Cth) that each party shall bear his or her own costs – appellant ordered to pay the respondent’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth) ss 117(1), 117(2) and 117(2A)

Trask & Westlake (Costs) [2015] FamCAFC 214

APPELLANT:

Ms Walter

RESPONDENT:

Mr Walter

FILE NUMBER:	MLC	6449	of	2010
APPEAL NUMBER:	SOA	93	of	2014

DATE DELIVERED:

10 June 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

May, Ainslie-Wallace & Murphy JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

24 November 2014

LOWER COURT MNC:

[2014] FCCA 2479

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr North SC and Mr Nehmey

SOLICITOR FOR THE APPELLANT:

Taussig Cherrie Fildes Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bartfeld QC

SOLICITOR FOR THE RESPONDENT:

Susan Snyder

Orders

The appellant mother pay the respondent father’s costs of and incidental to the appeal in such amount as agreed in writing between the parties or, failing agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walter & Walter (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 93 of 2014
File Number: MLC 6449 of 2010

Ms Walter

Appellant

And

Mr Walter

Respondent

REASONS FOR JUDGMENT

On 14 April 2016 we made orders dismissing the mother’s appeal against orders made by Judge Burchardt on 24 November 2014. The parties sought to make written submissions in respect of the costs of the appeal and we made directions accordingly.
The respondent father seeks an order that the appellant mother pay his costs of and incidental to the appeal. The mother contends that each party should bear their own costs.
The father relies on three circumstances said to justify departure from s 117(1) of the Family Law Act 1974 (Cth) (“the Act”) which requires that in the absence of justifying circumstances each party shall bear their own costs. By reference to s 117(2A) of the Act the respondent father contends that:
a)he has been “wholly successful” in the proceedings;
b)the mother’s financial circumstances are superior to his; and
c)the mother’s conduct in the lead up to the appeal was superfluous and unnecessary, creating additional costs for the respondent.[1]
[1] Respectively ss 117(2A)(e), (a) and (c) of the Act.
In respect of lack of success on an appeal an earlier Full Court has said:
While costs do not “follow the event” any more on an appeal than they do in any other proceedings (s 117(1)), it is often said that a…

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 Walter & Walter (Costs)

Details

AGLC: Walter & Walter (Costs) [2016] FamCAFC 103
Case: [2016] FamCAFC 103
Decision Date: 10 June 2016

CaseChat Overview and Summary

The case before the Family Court of Australia involved Walter, the mother, and Walter, the father, who were engaged in a dispute concerning the costs associated with an appeal. The matter was heard by Justice Lodge, who was required to determine the amount of costs to be paid by the mother to the father. The primary concern was whether the mother should bear the costs of the appeal and, if so, how this amount should be determined.

The legal issue at hand was whether the mother was liable for the father's costs of the appeal and, if so, the method by which the costs should be assessed. The court considered the relevant statutory provisions and case law to determine the appropriate approach. The mother argued that the costs should be limited to a specific sum, while the father sought a broader assessment.

Justice Lodge held that the mother was indeed responsible for the father's costs of the appeal. The court determined that the costs should be agreed upon in writing between the parties or, if no agreement could be reached, assessed by the court. The decision was based on the principle that the party who is unsuccessful in an appeal should generally bear the costs of that appeal. The court noted the importance of ensuring that such costs do not unduly burden the unsuccessful party but also recognised the need for the successful party to be compensated for the costs incurred. The orders of the court required the mother to pay the father’s costs of the appeal in an amount agreed upon by the parties or assessed by the court if necessary.

Orders

Orders of the court

The appellant mother pay the respondent father’s costs of and incidental to the appeal in such amount as agreed in writing between the parties or, failing agreement, as assessed.

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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