FAMILY LAW – COSTS – where the father seeks costs against the mother in respect of costs incurred during interim proceedings – where the mother makes a counter application for costs – where the mother is likely in a stronger financial position than the father – where the mother made exaggerated allegations – where conduct of the mother wasted Court time – where neither party was wholly unsuccessful and each party enjoyed a degree of success and failure – where the circumstances warrant the award of costs in favour of the father – where costs were sought on an indemnity or party/party basis or of a specific amount – order for the mother to pay 50% of the father’s costs of and incidental to her application – where costs ordered to be paid as agreed or assessed, with assessment not to take place until conclusion of the proceedings, without leave.
[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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AGLC
BEHRENDT & CADENET [2020] FamCA 342
Case
[2020] FamCA 342
Decision Date
CaseChat Overview and Summary
In *Behrendt & Cadenet*, Harper J of the Federal Circuit Court of Australia considered an application for costs. The dispute concerned the mother's further amended application filed on 13 March 2019, and the father's entitlement to recover costs incurred in relation to that application.
The central legal issue before the court was the apportionment of costs. Specifically, the court was required to determine the extent to which the mother should be ordered to pay the father's costs associated with her further amended application, and the relevant period for which those costs should be recoverable.
Harper J ordered that the mother pay 50% of the father’s costs of and incidental to the mother’s Further Amended Application filed on 13 March 2019. These costs were to be limited to those incurred after 10 April 2019 and up to and including 27 November 2019. The order stipulated that the costs were to be as agreed or assessed, with no assessment to occur prior to the final determination of the proceedings unless by leave of the Court.
Orders
Orders of the court
1.
That the mother pay 50% of the father’s costs of and incidental to the mother’s Further Amended Application filed on 13 March 2019, incurred after 10 April 2019 and up to and including 27 November 2019, as agreed or assessed, and in the event of assessment, no assessment is to take place prior to the final determination of the proceedings, without leave of the Court.
Note: The form of the order is subject to the entry of the order in the Court’s records.