Bernier & Bernier (No 2)

[2023] FedCFamC1A 4

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Bernier & Bernier (No 2) [2023] FedCFamC1A 4

Appeal from:	Bernier & Bernier [2022] FCWAM 118
Appeal number(s):	NAA 202 of 2022
File number(s):	PTW 5811 of 2020
Judgment of:	AUSTIN J
Date of judgment:	19 January 2023
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Costs – Where the respondent was refused leave to appeal from an interim financial order – Where the applicant filed an Application in an Appeal seeking a costs order against the respondent – Where the parties were directed by the appeal registrar to file written submissions by a specified date in support of or opposition to the application – Where both parties failed to file submissions by the specified date – Application in an Appeal dismissed
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) s 69 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 13.38
Number of paragraphs:	4
Date of hearing:	19 January 2023
Place:	In Chambers
The Applicant:	Litigant in person
Solicitor for the Respondent:	Kim Wilson & Co

ORDERS

NAA 202 of 2022
PTW 5811 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

 MR BERNIER

Applicant

AND:

MS BERNIER

Respondent

order made by:	AUSTIN J
DATE OF ORDER:	19 January 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 9 December 2022 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bernier & Bernier has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J:

1. On 18 November 2022, the respondent was refused leave to appeal from an interim financial order made by a magistrate of the Magistrates Court of Western Australia on 18 August 2022.

2. The applicant then filed an Application in an Appeal on 9 December 2022, seeking an order that the respondent pay his costs of the appeal in the sum of $900 within seven days.

3. The applicant requested that his application be heard in open court, but that request was refused as it would probably result in the parties incurring even more cost and inconvenience squabbling over a quite modest sum. Instead, the parties were directed by the appeal registrar to file any submissions either in support of or opposition to the application by 18 January 2023, after which time the application would be determined on the papers in chambers. Such procedure is permissible under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (r 13.38(2)(a)) but, to the extent that it might be regarded as irregular, any contrary rules are dispensed with (r 1.31).

4. As it transpired, both parties failed to file any submissions by the due date. Accordingly, by reason of the default, the application for costs was dismissed pursuant to the power prescribed by ss 69(1), 69(2)(b), 69(3) and 69(4)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       20 January 2023