Family Court case: Summary of Federal Proceedings (Costs) Act

Family Court case: Summary of Federal Proceedings (Costs) Act

In appeals in Federal matters, such as under the Family Law Act, it is possible to obtain certificates from the court which enable lawyers to be paid up to $4000 from the Federal Government. These certificates are issued when the appeal is upheld when the lower court made an error of law.

In Garde and Raddison the Full Court of the Family Court summarised the law as to these certificates:

 

The pre-conditions for the grant of a costs certificate under the Costs Act
in sections 6 and 9 have been the subject of several decisions of the Full
Court, the most significant of which is B & B
(Costs Certificates) (2007),
where the Full Court comprising Finn, May and
Boland JJ adopted the principles set out by Kirby J in Cramer & Davies (1997)
72 ALJR 146.

The three pre-conditions for the grant of a costs
certificate under section 6 and section 9 of the Costs Act are:

  1. The existence of a “federal appeal”;
  2. The necessity to establish an appeal has succeeded on a question of law;
  3. The requirement that the court concerned should have heard the
    appeal.

In relation to the third pre-condition, a broad interpretation of the
term “heard the appeal” should be adopted; meaning that a hearing means no more
than having the matter listed before a court so that it may dispose of the
appeal in a public and formal way (Cramer & Davies (1997)
72 ALJR 146
at [18] and B & B (Costs Certificates) (2007) FLC 93-339 at
81,823.
The appeal was listed before us, and as well as handing up a minute
of the orders that the parties sought the court make by consent, oral
submissions in support of the orders proposed were made. We are thus satisfied
that the third pre-condition, namely that the court should have heard the
appeal, has been satisfied. It is also clear that the appeal is a federal appeal
and thus the first pre-condition is also met.
The second pre-condition, that
the appeal would have succeeded on a question of law, requires a consideration
of the nature of the appeal and the material before the court to determine
whether, had the matter proceeded and been argued and heard, an error of law
would have clearly been demonstrated.

 

Request an Appointment
Fill in the form below to find out if you have a claim.
Request an Appointment - Stephen Page
Things to Read, Watch & Listen

Human Rights & Surrogacy: Protecting Parents, Children & Surrogates

Surrogacy is as much a human-rights issue as it is a family-law matter. Courts around the world are grappling with competing rights: the right to procreate and access assisted reproductive treatment, the child’s right to identity, and the surrogate’s right to bodily autonomy and fair treatment. These tensions shape how laws and court decisions treat… Read More »Human Rights & Surrogacy: Protecting Parents, Children & Surrogates

How I Became a Fertility and Surrogacy Lawyer

A legal career that began in mainstream family law evolved into one of Australia’s most specialist practices in fertility, surrogacy and assisted reproductive technology. Over almost four decades, Stephen Page has handled thousands of complex matters, influenced law reform, advised clinics, taught ethics and regulation, and championed the human rights of everyone affected by assisted… Read More »How I Became a Fertility and Surrogacy Lawyer

Lessons From My Own Surrogacy Journey

Stephen Page’s story is a frank, sometimes brutal, ultimately hopeful account of what it means to pursue parenthood when the path is anything but straightforward. From a childhood conviction to be a dad, to confronting infertility, miscarriage, an ectopic pregnancy and the legal uncertainty around parentage, his journey illustrates the medical, emotional and legal hurdles… Read More »Lessons From My Own Surrogacy Journey

Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board