Appellants Contests Cost Orders Imposed Against Her
Bashir & Ghani [2021] FamCAFC 148 (6 August 2021)
The appellant commenced parenting proceedings on 20 October 2016. Orders were made for the appellant to pay the respondent the costs of the threshold proceedings. The appellant then filed an appeal contesting the order made requiring him to pay the costs of the respondent fixed in the sum of $23,284.90. The Court, in deciding whether or not to grant the appeal, relied upon the financial circumstance of the appellant as well as the contentions of the primary judge.
Facts:
The parties married and commenced cohabitation in 2010 and separated in 2015. The parties have two children. The appellant commenced parenting proceedings on 20 October 2016. On 24 November 2016, the parties entered into a parenting plan under which the children would live with the respondent and spend limited supervised time with the appellant. The appellant had been intermittently involved with the proceedings and disengaged with the children.
Orders were made for the matter to proceed on an undefended basis and a final hearing took place, in the absence of the appellant on 22 November 2017. The appellant had however indicated to the Court that she consented to the children living with the father. The primary judge made orders that the father have sole parental responsibility for the children who were to live with him. No orders were made for the children to spend time with the mother. On 25 June 2020, the mother sought orders that the children spend time with her.
The primary judge then conducted a hearing as to whether or not there are fresh circumstances which warranted the reconsideration of the parenting orders. On 22 March 2021, the father filed an Application in a Case seeking orders that the mother pay his costs of the threshold proceedings on an indemnity basis. The primary judge was satisfied that the circumstances justified the making of a costs order, but not on an indemnity basis. Her Honour fixed the costs to be paid in the sum of $23,284.90.
The mother contests the order made by a judge of the Federal Circuit Court of Australia on 23 April 2021 which required her to pay the costs of the father fixed in the sum of $23,284.90.
Issue:
Whether or not the primary judge erred in making the appellant pay costs of the respondent.
Applicable law:
Family Law Act 1975 (Cth) s 117(2A) - provides the considerations the Court should take into account when making cost orders.
Beamish & Coburn (dec’d) (2021) FLC 94–005; [2021] FamCAFC 20 - where it explained that in civil proceedings such as the present it is for the parties to determine the metes and bounds of the dispute and the fact that a person fails to put on evidence, for example, in relation to one of the considerations to be taken into account under s 117(2A) of the Act, is an indication to the Court that the party does not consider it to be relevant.
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 - provided that an error cannot be demonstrated simply by establishing that another judge or an appellate court may have reached a different conclusion.
House v The King (1936) 55 CLR 499; [1936] HCA 40 - where it was held that the issue of costs is discretionary and any appeal from such a decision is subject to the well‑known principles in this case.
Lenova & Lenova (Costs) [2011] FamCAFC 141 - the Court held that a costs order may be made against a person even though they are impecunious.
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 - where it was held that there should be fresh circumstances to warrant a reconsideration of parenting orders.
Analysis:
The mother submitted that the primary judge failed to give weight, or gave insufficient and/or inappropriate weight to:
(1) The fact that the mother had received a grant of legal aid for the threshold proceedings;
(2) The mother’s financial circumstances; and
(3) The fact that there were no spend time orders in place and that the mother had demonstrated a change in circumstances, albeit not sufficient, but had lawfully put on an application.
Here, the appellant had a grant of legal aid for the 2020 proceedings. The appellant was able to conduct these proceedings without financial cost while the respondent incurred over $100,000 in legal costs and disbursements. While it may be inferred from such a grant that the appellant was a person of limited means, the Court cannot know what criteria were in place to determine such grant without evidence.
Conclusion:
The Court ordered to dismiss the appeal. The appellant shall pay the respondent's costs fixed i the sum of $4,108.45. The appeal was wholly unsuccessful and she did not accept an offer made by the respondent for the appeal to be dismissed with no orders as to costs.
