Dismissal of Appeal and Cost Order Dispute between Appellant Husband and Respondent Wife
Abbott & Vastano (No 2) [2023] FedCFamC1A 5 (24 January 2023)
The wife has requested $10,345.92 in costs, while the husband has argued against any costs order. Both parties have submitted their respective positions to the court, who will now consider section 1172 of the Act, their financial circumstances and the outcome of the appeal before making a decision.
Facts:
On 21 December 2022, the appellant husband's appeal was dismissed by the primary judge. The respondent wife sought her costs of the appeal to be paid by the husband, which the husband opposed. The parties were then ordered to file any further material by 25 January 2023 and on 11 January 2023, they submitted a joint submission outlining their respective positions in relation to costs.
The wife sought her costs from the husband in the sum of $10,345.92, while the husband opposed any costs order and sought for each party to bear their own costs.
Issue:
Whether the court should make a costs order against the appellant husband, in favour of the respondent wife, following the dismissal of the husband's appeal by the primary judge.
Applicable law:
Family Law Act 1975 (Cth) s 117 - provides that each party should bear their own costs.
Abbott & Vastano (2022) FLC 94-125; [2022] FedCFamC1A 222 - where the Court dismissed the appellant husband’s appeal from final property settlement orders made by the primary judge on 29 August 2022.
Analysis:
The court considered section 1172 of the Act, with regard to the financial circumstances of the parties and the outcome of the appeal. The wife argued for a costs order due to the husband's wholly unsuccessful appeal and higher income. The husband argued against a costs order, citing that their appeal was not hopeless and the wife's favourable result at trial. The court will ultimately decide whether or not to make a costs order.
Conclusion:
Within 28 days, the husband should pay the wife’s costs of the appeal in the sum of $10,345.92.
Case: Abbott & Vastano (No 2) [2023] FedCFamC1A 5
Judgment of: TREE J
Counsels:
Counsel for the Appellant:
Mr Gallimore
Solicitor for the Appellant:
Turnbull Hill Lawyers
Counsel for the Respondent:
Mr Rugendyke
Solicitor for the Respondent:
East Coast Law