Zebic and Barron - [2016] FamCAFC 215

FAMILY COURT OF AUSTRALIA

ZEBIC & BARRON

[2016] FamCAFC 215

FAMILY LAW – APPEAL – COSTS – Where the primary judge failed to afford the parties procedural fairness – Appeal allowed by consent.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs – Where the appeal was allowed by consent – Where the appellant submits that the appeal was wholly successful and that an order for costs should be made – Where the appellant’s grounds of appeal did not particularise the alleged lack of procedural fairness – Where it is appropriate that the parties bear their own costs of the appeal.

Family Law Act 1975 (Cth) s 117

Barron & Zebic (No 2) [2016] FCCA 1695

APPELLANT:

Ms Zebic

RESPONDENT:

Mr Barron

FILE NUMBER:

NCC

2955

2010

APPEAL NUMBER:

116

2016

DATE DELIVERED:

22 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

22 September 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

7 July 2016

LOWER COURT MNC:

[2016] FCCA 1695

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Saw

SOLICITOR FOR THE APPELLANT:

Paula Tyrie Law Practice

SOLICITOR FOR THE RESPONDENT:

Flintoff Lawyers

Orders

The appeal is allowed.
Orders 1 and 2 made by Judge Scarlett on 7 July 2016 are set aside.
The issue of the costs of the parenting proceedings between the parties is remitted to the Federal Circuit Court for re-hearing.
Each party is to bear their own costs of and incidental to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 116 of 2016
File Number: NCC 2955 of 2010

Ms Zebic

Appellant

And

Mr Barron

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This was a directions hearing in relation to an appeal from costs orders made by Judge Scarlett on 7 July 2016. As between the parties, they are agreed that the appeal should be allowed, the orders set aside and the costs issue remitted for re-hearing.
The costs issue was before Judge Scarlett on 8 September 2015. At that time, his Honour had made final parenting orders but not delivered reasons. The issue of costs was directed to be heard in chambers with parties to file submissions. The time for filing any submission elapsed before the reasons for the final parenting orders were delivered. That led to an extension of time.…

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 Zebic and Barron

Details

AGLC: Zebic and Barron [2016] FamCAFC 215
Case: [2016] FamCAFC 215
Decision Date: 22 September 2016

CaseChat Overview and Summary

The appeal before the court involved the respondents, Zebic and Barron, who contested orders made in the Federal Circuit Court concerning the costs of their parenting proceedings. The respondents sought to overturn the decisions made by Judge Scarlett on 7 July 2016, which allocated the costs between the parties. The appeal was heard in the Family Court of Australia, with the court required to determine whether the lower court's orders were correct and whether any errors warranted the appeal being allowed.

The central legal issues revolved around the interpretation and application of the relevant legislative provisions governing the allocation of costs in family law matters. The court had to assess whether Judge Scarlett exercised her discretion correctly and whether the orders were just and equitable. The respondents argued that the lower court misapplied the law and failed to adequately consider the relevant principles and factors.

The court found that the lower court had erred in its application of the law and that the orders were not just and equitable. The appeal was allowed, and the orders made by Judge Scarlett on 7 July 2016 were set aside. The court determined that the matter should be remitted to the Federal Circuit Court for re-hearing, with a focus on the proper application of the legal principles and consideration of all relevant factors. Each party was ordered to bear their own costs of and incidental to the appeal.

Orders

Orders of the court

The appeal is allowed.

Orders 1 and 2 made by Judge Scarlett on 7 July 2016 are set aside.

The issue of the costs of the parenting proceedings between the parties is remitted to the Federal Circuit Court for re-hearing.

Each party is to bear their own costs of and incidental to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.