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

Surrogacy statistics: why so many go overseas

Surrogacy is intensely personal, but the numbers tell an important story about how difficult it can be for intended parents in Australia. The central statistic is striking: for every child born in Australia through surrogacy, about four are born overseas. That is not a small difference. It points to a system in which many intended… Read More »Surrogacy statistics: why so many go overseas

How much does surrogacy really cost? A ballpark figure

Surrogacy is not simply a medical process. It is a legal, emotional, practical and financial journey. One of the first questions intended parents rightly ask is: how much is this going to cost? The honest answer is that it depends on where the journey takes place, whether an egg donor is needed, the legal requirements… Read More »How much does surrogacy really cost? A ballpark figure

How the family court decides parenting cases: the best interests test explained

When parents cannot agree about arrangements for their children, the central question for the Federal Circuit and Family Court of Australia is not what either parent wants. It is what arrangements are in the best interests of the child. This is the paramount consideration under the Family Law Act 1975. It applies whenever a judge… Read More »How the family court decides parenting cases: the best interests test explained

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