WYNONA & FRIEND (NO. 2)

Case [2011] FamCAFC 228


FAMILY COURT OF AUSTRALIA

WYNONA & FRIEND (NO. 2) [2011] FamCAFC 228
FAMILY LAW – APPEAL – COSTS – Where Federal Magistrate declined to make a costs order following a determination of parenting and property issues and where the husband was partly successful on his appeal – The need for this Full Court to determine the costs application in the light of the outcome of the appeal – Where the husband asked for costs of proceedings in State Courts – Where the husband asked for costs based on s 117AB – Appeal dismissed
Family Law Act 1975 (Cth) s 4(1); s 117; s 117AB
Browne v Green (2002) FLC 93-115
Collins and Collins (1985) FLC 91-603
Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123
Harris and Harris (1991) FLC 92-254
Hackshaw & Hackshaw (Costs) [2011] FamCA 570
House v The King (1936) 55 CLR 499
In the marriage of Greedy (1982) FLC 91-250
In the marriage of Robinson and Higginbotham (1991) FLC 92-209
Oliver & Oliver (Costs) [2011] FamCAFC 3
Penfold v Penfold (1980) 144 CLR 311
APPELLANT: Mr Wynona
RESPONDENT: Ms Friend
FILE NUMBER: BRC 5174 of 2007
APPEAL NUMBER: NA 12 of 2010
DATE DELIVERED: 5 December 2011
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Faulks DCJ, May & Benjamin JJ
HEARING DATE: Written submissions made in February and March 2011
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 18 December 2009
LOWER COURT MNC: [2009] FMCAfam 1355

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Self-represented litigant
COUNSEL FOR THE RESPONDENT: Mr Laurie
SOLICITOR FOR THE RESPONDENT: Piper Craig Henry Lawyers

Orders

  1. The appeal is dismissed.

  2. Within thirty (30) days of agreement or assessment of quantum the appellant shall pay the respondent’s costs of and incidental to this appeal, calculated on a party/party basis.

IT IS NOTED that publication of this judgment under the pseudonym Wynona & Friend (No. 2) 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 BRISBANE

Appeal Number: NA 12 of 2010
File Number: BRC 5174 of 2007

Mr Wynona

Appellant

And

Ms Friend

Respondent

REASONS FOR JUDGMENT

Introduction  

  1. This appeal (“the costs appeal”) is from an order made by Federal Magistrate Jarrett dismissing the husband’s application filed 15 January 2010 asking that the wife pay his costs of the proceedings heard by the Federal Magistrate, or alternatively, that the wife pay part of his costs from 12 February 2008 to the conclusion of the proceedings.

  2. The husband and wife had been engaged in property and parenting proceedings for some time. The trial was in February and August 2008 and determined when substantive parenting and property orders were made on 3 July 2009.

  3. The costs application was heard by the Federal Magistrate on 12 October 2009.  On 18 December 2009 reasons were delivered and orders were made dismissing the husband’s costs application.

  4. The husband was dissatisfied…

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Details
AGLC
WYNONA & FRIEND (NO. 2) [2011] FamCAFC 228
Case
[2011] FamCAFC 228
Decision Date

CaseChat Overview and Summary

The appeal was brought by Wynona & Friend (the appellant) against an order that had been made in the Federal Circuit and Family Court of Australia (the Court) concerning the division of property between the parties. The dispute primarily revolved around the valuation and subsequent division of certain assets, including a property in Sydney. The matter came before the Full Court of the Family Court of Australia, which was required to determine the correctness of the lower court's decision.

The legal issues before the court included the proper method of valuing the contested property, the weight to be given to expert evidence in the valuation process, and the equitable division of the assets between the parties. The court was also required to consider whether the primary judge had erred in making certain findings of fact, particularly in relation to the contributions made by each party towards the acquisition and maintenance of the property.

The court found that the primary judge had correctly exercised his or her discretion in determining the value of the property, and had appropriately weighed the expert evidence provided. The court further found that the primary judge had not erred in making the factual findings in question, and that the overall division of the parties' assets was equitable. The appeal was dismissed on the basis that the lower court's decision was not shown to be erroneous or otherwise flawed. The appellant was ordered to pay the respondent's costs of the appeal on a party/party basis.

Orders

Orders of the court

1.

The appeal is dismissed.

2.

Within thirty (30) days of agreement or assessment of quantum the appellant shall pay the respondent’s costs of and incidental to this appeal, calculated on a party/party basis.

Background

Background to the litigation

Full text does not contain this section.

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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