Dismissal of Parenting Order Applications and Costs Dispute in Family Law Matter
Bircher & Bircher (No 2) [2022] FedCFamC1F 981 (9 December 2022)
In this family law case, both the applicant and respondent had applications for parenting order variations dismissed by the judge. The respondent subsequently sought an order for costs against the applicant, arguing that there should be no cost orders due to their income disparity. However, the judge ordered the applicant to pay the respondent's costs based on the usual rule set out in section 117(1) of the Family Law Act 1975.
On November 16th, 2022, a judge dismissed an application for parenting orders that had been filed by an applicant on August 18th, 2022. The applicant had sought to vary parenting orders that had been made on November 27th, 2019, but the judge determined that there had not been a sufficient material change in circumstances to warrant a revisiting of the welfare of the children involved. The respondent had also sought a variation of the relevant orders but their response was dismissed. The respondent subsequently sought an order for costs against the applicant, arguing that the applicant should pay the filing fee for his response.
Both parties submitted written arguments on costs, and the judge ultimately ordered the applicant to pay the respondent's costs based on the fact that the applicant was wholly unsuccessful in the proceedings, as per the Family Law Act 1975 (Cth).
Family Law Act 1975 (Cth) ss 117(1), 117(2A)
Section 117 of the Family Law Act 1975 outlines the circumstances under which a court may order costs in family law proceedings. Generally, each party is responsible for their own costs, but the court may make an order for costs if it deems it just and appropriate in the circumstances of the case. The court must take into account various factors, including the financial circumstances of the parties, whether any party is receiving legal aid, the parties' conduct during the proceedings, and whether a party has been wholly unsuccessful in the proceedings.
The section also includes provisions for the costs of an independent children's lawyer, who is appointed by the court to represent the interests of a child in family law proceedings. In such cases, the court may order one or both of the parties to pay the independent children's lawyer's costs, or may make another order as it sees fit.
Analysis:The respondent to the costs application argues that there should be no cost orders because both she and the applicant were equally unsuccessful in the proceedings. She also cites a Child Support Assessment filed in her August 18th, 2022 application that shows a significant income disparity between the parties. The respondent suggests that the parties' financial resources are such that no costs order should be made. However, the judge accepted the applicant's arguments and concluded that both parties were wholly unsuccessful before the court. The judge also noted that the respondent had a significantly higher income than the applicant, but was not persuaded that this warranted a departure from the usual rule as set out in section 117(1) of the Act.
Conclusion:
On the response to final orders and the application in a proceeding, both filed on 1 August, 2022 there is no order as to costs.
Case: Bircher & Bircher (No 2) [2022] FedCFamC1F 981
Judgment of: JARRETT J
Counsels:
Solicitor for the Applicant: Litigant in person
Solicitor for the Respondent: Litigant in person