WARNER & WARNER - [2015] FamCAFC 125

FAMILY COURT OF AUSTRALIA

WARNER & WARNER

[2015] FamCAFC 125

FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

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

Ball & Ball (Cost Certificates) [2007] FamCA 1252

Cramer & Davies (1997) 72 ALJR 146
De Winter & De Winter (1979) FLC 90-605

APPELLANT:

Mr Warner

RESPONDENT:

Ms Warner

FILE NUMBER:

104

2013

APPEAL NUMBER:

SYC

5933

2011

DATE DELIVERED:

19 June 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace and Ryan JJ

HEARING DATE:

15 June 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 June 2013

LOWER COURT MNC:

[2013] FamCA 495

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Sansom

SOLICITOR FOR THE APPELLANT:	Campbell Paton & Taylor Solicitors
SOLICITOR FOR THE RESPONDENT:	KD Holmes Lawyers

Orders

IT IS ORDERED BY CONSENT:

The appeal be allowed.
The orders of Justice Stevenson made on 26 June 2013 be set aside.
The Application in an Appeal be dismissed.

IT IS ORDERED

The matter be remitted for rehearing before a Judge other than Justice Stevenson.
There be no order as to the costs of the appeal.
The Court grants to the appellant husband a costs certificate pursuant to the provisions 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 him in relation to the appeal.
The Court grants to the respondent wife 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 her in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

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

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.

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Details

AGLC: WARNER & WARNER [2015] FamCAFC 125
Case: [2015] FamCAFC 125
Decision Date: 19 June 2015

CaseChat Overview and Summary

Warner and Warner involved a dispute between the parties that was brought before the court. The case required the court to address issues arising from the original decision made by Justice Stevenson on 26 June 2013. The appeal sought to challenge the orders made by Justice Stevenson, and the primary legal issue before the court was whether those orders were appropriate or if a rehearing was necessary.

The court found that the original decision warranted reconsideration and allowed the appeal. The court set aside the orders made by Justice Stevenson and dismissed the application in the appeal. To ensure fairness and impartiality, the court ordered the matter to be remitted for rehearing before a different judge. The court also made specific orders regarding the costs of the appeal, granting both parties certificates that would allow them to seek costs from the Attorney-General. The certificates were issued under various sections of the Federal Proceedings (Costs) Act 1981, ensuring that both parties could seek reimbursement for the costs incurred during the appeal and the subsequent rehearing.

Orders

Orders of the court

IT IS ORDERED BY CONSENT:

The appeal be allowed.

The orders of Justice Stevenson made on 26 June 2013 be set aside.

The Application in an Appeal be dismissed.

IT IS ORDERED

The matter be remitted for rehearing before a Judge other than Justice Stevenson.

There be no order as to the costs of the appeal.

The Court grants to the appellant husband a costs certificate pursuant to the provisions 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 him in relation to the appeal.

The Court grants to the respondent wife 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 her in relation to the appeal.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

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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