Anison & Anison

In the matter of Anison & Anison, the husband appealed against costs orders made in the Family Court of Australia, where he was ordered to pay the wife's costs of and incidental to property proceedings. The proceedings related to a final property settlement of $233,550, which the husband was ordered to pay to the wife. Both parties sought and opposed each other's costs applications, leading the trial judge to determine costs applications concerning three distinct subject matters. The judge concluded that the husband was "wholly unsuccessful" and ordered him to pay the wife's costs on a party and party basis from a specified date. The husband argued that the trial judge erred in interpreting and applying s 117(2A)(e) of the Family Law Act 1975 (Cth) when making the costs orders.

The appeal raised questions about the meaning of "wholly unsuccessful" and whether the trial judge correctly exercised the discretion to make the costs orders. Both parties agreed that if the appeal succeeded, the Full Court should re-exercise the discretion. They also agreed to rely on the material already filed before the trial judge and did not seek to place any further evidence before the Court. The husband contended that he should not be ordered to pay the wife's costs of an application in a case where she had an obvious claim for spousal maintenance and litigation funding. The wife argued that there should be no order as to costs in relation to the substantive proceedings. Both parties granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal, as it succeeded on an error of law.

The appeal was allowed in part, with Order 3 of the trial judge's orders set aside. The Court granted a costs certificate to the husband under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), as it would be appropriate for the Attorney-General to authorise a payment to the husband in respect of the costs incurred by him in relation to the appeal. The Court also granted a costs certificate to the wife under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), as it would be appropriate for the Attorney-General to authorise a payment to the wife in respect of the costs incurred by her in relation to the appeal. The form of the order is subject to the entry of the order in the Court's records.