Parties Dispute Cost Orders
Otieno & Mwangi [2022] FedCFamC1A 145 (19 September 2022)
The wife and Independent Children’s Lawyer’s (“the ICL”) applications for costs were entertained on the day set aside for the appeal hearing where it was ruled that costs are deserved. The Court, in making final orders, considered how neither party was legally aided in the appeal and the lack of assertions of any financial hardship in having to meet any costs order.
Facts
By Notice of Appeal filed on 18 May 2022, the husband appealed from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 20 April 2022 to finalise causes of action between he and the wife in respect of their children and their property pursuant to Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively. The appeal hearing was fixed for Monday 19 September 2022 but, on Friday 16 September 2022, the husband discontinued the entirety of the appeal.
The wife and the Independent Children’s Lawyer (“the ICL”) both foreshadowed their applications against the husband for the costs of the appeal, which applications were entertained on the day set aside for the appeal hearing. The wife claimed costs on alternate bases: $7,874.80 on a solicitor/client basis or $7,146.30 on a party/party basis.
Issue
Whether or not the husband shall pay the wife’s party/party costs of and incidental to the appeal.
Applicable law
Family Law Act 1975 (Cth) Pts VII, VIII, s 117 - expressly contemplates costs orders being made in favour of an ICL.
De Roma & De Roma (2013) 49 Fam LR 226; [2013] FamCA 566 - provides that the ICL should be presumed to be unfunded so as to generally incline the Court towards a costs order in favour of the ICL, since the purpose of the provision is to protect the public purse.
Analysis
There was no proper reason why the husband’s exposure to costs should be calculated on other than a party/party basis, which the wife conceded. Neither party was legally aided in the appeal (s 117(2A)(b)), the husband failed to comply with procedural orders made by the appeal registrar (s 117(2A)(c)), and the wife was needlessly put to legal expense over a period of months preparing to defend the appealed orders until the cusp of the appeal hearing (s 117(2A)(g)). The husband did not assert any financial hardship in having to meet any costs order (s 117(2A)(a)). The evidence before the primary judge in respect of the property dispute was that property worth nearly $1 million had already been divided between the parties.
The husband engaged legal representatives throughout the appeal, so it may be reasonably imputed he has sufficient financial capacity to meet their costs. If he has the capacity to meet their costs, there is no good reason why he cannot meet the wife’s costs. The husband did not demonstrate he would suffer financial hardship if ordered to bear a proportion of the ICL’s costs.
Conclusion
The husband shall pay the wife’s party/party costs of and incidental to the appeal in the fixed sum of $7,146.30. The husband shall pay the Independent Children’s Lawyer’s party/party costs of and incidental to the appeal in the fixed sum of $3,676.
