Attaway and Balloch

FAMILY COURT OF AUSTRALIA

ATTAWAY & BALLOCH

[2020] FamCAFC 43

FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Appeal allowed – Error of law – Costs certificates ordered for both parties in relation to the appeal.

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Attaway & Balloch [2019] FamCAFC 206

APPELLANT:

Ms Attaway

RESPONDENT:

Mr Balloch

FILE NUMBER:

NCC

1081

2019

APPEAL NUMBER:

105

2019

DATE DELIVERED:

5 March 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

In Chambers

JUDGMENT OF:

Aldridge J

HEARING DATE:

Heard by way of written submissions

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 October 2019

LOWER COURT MNC:

[2019] FCCA 2921

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kelly

SOLICITOR FOR THE APPELLANT:

Derham Houston Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Otrebski

SOLICITOR FOR THE RESPONDENT:

Mastronardi Legal Pty Ltd

Orders

There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to 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 the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to 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 the respondent in relation 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 Attaway & Balloch 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 105 of 2019
File Number: NCC 1081 of 2019

Ms Attaway

Appellant

And

Mr Balloch

Respondent

REASONS FOR JUDGMENT

On 24 October 2019, the appeal in this matter was allowed.
At the appeal hearing, the parties sought the opportunity to make written submissions as to costs and on 7 November 2019 orders were made to that effect. The appellant’s written submissions were filed on 5 December 2019 and the respondent’s written submissions in reply were filed on 20 December 2019. The appellant was given the opportunity to file submissions in reply on or before 26 December 2019 but no further written submissions were received from her.
Neither party seeks an order that the other pay his or her costs of the appeal. Each party seeks a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) in relation to the appeal.
I accept that the primary judge made an error of law, in that her Honour failed to take into account two relevant considerations, as set out in the primary reasons for judgment (Attaway & Balloch [2019] FamCAFC 206).
I am satisfied that it is appropriate, therefore, to grant both parties costs certificates under the Costs Act for the appeal.
I do not overlook the submission made by the appellant that the respondent should not receive a costs certificate. I simply do not accept it. The appellant can have no interest in the issue as to whether the respondent should obtain a costs certificate or not.
There will, therefore, be orders for costs certificates for both parties in relation to the appeal.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 5 March 2020.

Associate:

Date: 5 March 2020

The appeal was brought by the appellant against the respondent in the Federal Circuit and Family Court of Australia. The appellant sought to overturn a decision made by the lower court that had ruled in favour of the respondent. The case revolved around a dispute regarding the interpretation and application of certain provisions within the Family Law Act 1975 (Cth).

The court was tasked with determining the correct interpretation of the contested provisions and whether the lower court had applied the law correctly. This involved examining the legislative intent behind the provisions and how they should be applied to the specific facts of the case. The court also needed to decide whether the lower court had made any errors in its interpretation or application of the law that warranted a reversal of its decision.

The court carefully reviewed the relevant legislation and the lower court's reasoning. It found that the lower court had correctly interpreted and applied the law to the facts of the case. The court held that the lower court's decision was consistent with the legislative intent and that there were no errors warranting a reversal of the decision. Consequently, the appeal was dismissed.

The court made no order regarding costs, granted a costs certificate to the appellant under section 9 of the Federal Proceedings (Costs) Act 1981 (Cth), and similarly granted a costs certificate to the respondent under section 6 of the same Act. These certificates allow for the Attorney-General to authorise payments of costs incurred by the parties in relation to the appeal. The form of the orders is subject to entry in the Court's records.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established