WYNONA & FRIEND (NO. 2) - [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

2007

APPEAL NUMBER:

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

The appeal is dismissed.
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

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.
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.
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.
The husband was dissatisfied…

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 WYNONA & FRIEND (NO. 2)

Details

AGLC: WYNONA & FRIEND (NO. 2) [2011] FamCAFC 228
Case: [2011] FamCAFC 228
Decision Date: 5 December 2011

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

The appeal is dismissed.

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

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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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