FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – COSTS – Where the applicant seeks costs on an indemnity basis as a result of the respondent discontinuing an Amended Application in an Appeal – Where the applicant’s superior financial situation should not stand in the way of a costs order being made if otherwise appropriate – Where the respondent claims that the application was discontinued because a controversy had arisen and she was not in a financial position to continue with the litigation – Where the respondent’s conduct in discontinuing the proceedings in the circumstances that she did provides the necessary justification for an order for costs to be made – Where a costs order should be made in favour of the applicant – Where there are no exceptional circumstances demonstrated by the applicant which would justify an order for costs being made on an indemnity basis – Where the costs should be assessed in default of agreement to provide the respondent with the opportunity to challenge the items claimed – Costs ordered in favour of the applicant to be assessed on a party/party basis in default of agreement.
(1) The mother pay the father’s costs of and incidental to the Amended Application in an Appeal filed on 9 July 2015, the Response thereto filed on 17 August 2015, the Notice of Discontinuance filed on 20 August 2015, and the Amended Application in an Appeal filed on 19 November 2015, such costs to be assessed in default of agreement on a party/party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bant & Clayton (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE
Appeal Number: NA 12 of 2014 File Number: LEC 310 of 2013
Mr Bant
Applicant
And
Ms Clayton
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Application in an Appeal filed on 19 November 2015, Mr Bant (“the father”) seeks the following orders:
1.That pursuant to Rule 22.42 of the Family Law Rules 2004, the Respondent Mother shall pay the costs of the Applicant…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bant & Clayton (Costs) [2016] FamCAFC 35
Case
[2016] FamCAFC 35
Decision Date
CaseChat Overview and Summary
The appeal was brought by Mr Bant, the father, against Ms Clayton, the mother, concerning the costs incurred in relation to an Amended Application in an Appeal. The matter was heard by May, Strickland, and Tree JJ in the Family Court of Australia. The appeal arose from a lower court decision where Ms Clayton had discontinued an Amended Application in an Appeal, and Mr Bant sought costs on an indemnity basis due to the discontinuance.
The central legal issue before the court was whether the discontinuance of the Amended Application by Ms Clayton justified an order for costs to be made in favour of Mr Bant, and if so, whether the costs should be awarded on a party/party basis or on an indemnity basis. The court had to consider the financial positions of both parties and whether there were any exceptional circumstances that would warrant an indemnity costs order. Additionally, the court needed to determine if the discontinuance of the proceedings by Ms Clayton constituted a sufficient ground for the award of costs.
The court held that the discontinuance of the Amended Application by Ms Clayton, under the circumstances presented, provided the necessary justification for an order for costs to be made in favour of Mr Bant. The court found that Ms Clayton's conduct in discontinuing the proceedings was unreasonable and that her financial situation did not preclude an order for costs. However, the court concluded that there were no exceptional circumstances demonstrated by Mr Bant that would justify an order for costs on an indemnity basis. Instead, the court deemed it appropriate to order costs on a party/party basis in default of an agreement between the parties. This decision was influenced by the need to balance the financial disparity between the parties with the principle that the discontinuance of proceedings by Ms Clayton warranted costs.
The final order of the court was that Ms Clayton was to pay Mr Bant's costs of and incidental to the Amended Application in an Appeal, the Response, the Notice of Discontinuance, and the subsequent Amended Application in an Appeal. The costs were to be assessed on a party/party basis in default of an agreement between the parties.
Orders
Orders of the court
(1) The mother pay the father’s costs of and incidental to the Amended Application in an Appeal filed on 9 July 2015, the Response thereto filed on 17 August 2015, the Notice of Discontinuance filed on 20 August 2015, and the Amended Application in an Appeal filed on 19 November 2015, such costs to be assessed in default of agreement on a party/party basis.