Bircher & Bircher (No 2)
[2022] FedCFamC1F 981
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bircher & Bircher (No 2) [2022] FedCFamC1F 981
File number(s): BRC 5628 of 2022 Judgment of: JARRETT J Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – Costs Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2A) Division: Division 1 First Instance Number of paragraphs: 7 Date of last submission/s: 30 November, 2022 Date of hearing: By written submission Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
BRC 5628 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BIRCHER
Applicant
AND: MR BIRCHER
Respondent
order made by:
JARRETT J
DATE OF ORDER:
9 December 2022
THE COURT ORDERS THAT:
1.On the response to final orders and the application in a proceeding, both filed on 1 August, 2022 there be no order as to costs.
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 a pseudonym Bircher & Bircher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 16 November, 2022 I summarily dismissed an application for parenting orders filed by the applicant on 18 August, 2022. By that application she sought that parenting orders made on 27 November, 2019 be varied in certain respects. I concluded that the applicant did not demonstrate a material change in circumstances sufficient to warrant the revisiting of the welfare of the children the subject of those orders.
Although the respondent opposed her application, by his own application in a case filed on 1 August, 2022 he too sought a variation of the relevant orders. I dismissed his response.
The respondent applied for an order for costs against the applicant by including that order in his response. I did not hear submissions from the parties on that issue when I heard the summary dismissal application and so, when I delivered judgment on that application, I made directions for the parties to deliver written submissions to deal with costs.
Both parties have filed submissions on costs.
The respondent, the applicant for costs, seeks an order that the applicant pay his costs fixed in the sum of $385.00 (being the filing fee of his response). He argues that having regard to the matter set out in s 117(2A) of the Family Law Act 1975 (Cth), the most significant factor is that the applicant was wholly unsuccessful in the proceedings. And so it was.
The applicant (the respondent to the costs application) argues that there should be no costs orders because the respondent was as equally unsuccessful as she. She also argues that in her application filed on 18 August, 2022 there is a Child Support Assessment that shows the applicant and respondent's annual income of $23,057 and $136,181 respectively. She points out that there is a great disparity in the parties’ income. Presumably, she suggests that the parties’ financial resources are such that there should be no order for costs.
I accept the applicant’s submissions. Both parties were wholly unsuccessful before the court. On the evidence, the respondent enjoys superior earnings to those of the applicant. I am not persuaded that there are justifying circumstances warranting a departure from the usual rule as set out in s 117(1) of the Act.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 9 December 2022
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