Batey-Elton & Elton (Costs)

In the Family Court of Australia, the matter of Batey-Elton & Elton was before the court to determine the costs associated with two separate appeals. The first appeal, NA 19 of 2010, was an appeal regarding the costs of disqualification, while the second, NA 41 of 2010, involved a bias and injunction appeal. The wife, the appellant in both cases, was wholly unsuccessful in the first appeal and substantially unsuccessful in the second. Notably, she did not file any submissions in either appeal.

The court was tasked with determining the appropriate costs to be awarded to the husband in relation to each appeal. The primary legal issue was the extent to which the wife should be liable for the costs given her lack of participation and the outcomes of the appeals. The court considered the precedent set in Fitzgerald (as a child representative for A (Legal Aid Commission of Tasmania)) v Fish & Another (2005) 33 Fam LR 123, which provided guidance on costs in cases where the appellant did not engage in the proceedings.

The court found that the wife should be held responsible for the husband's costs in both appeals. Given her complete lack of success in the disqualification appeal and the absence of submissions, the court ordered her to pay all the husband's costs of and incidental to the appeal. In the bias and injunction appeal, where she was substantially unsuccessful, the court ordered her to pay two-thirds of the husband's costs. The reasoning was that her lack of participation in the proceedings justified a significant costs order against her.

The final orders of the court were that the wife should pay the husband's costs of and incidental to the disqualification appeal in full and two-thirds of the costs of and incidental to the bias and injunction appeal. These costs were to be assessed under Chapter 19 of the Family Law Rules 2004 if the parties could not agree on an amount.