Cannon & Cannon (No 2)
[2023] FedCFamC1A 66
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cannon & Cannon (No 2) [2023] FedCFamC1A 66
Appeal from: Order dated 6 September 2022 Appeal number(s): NAA 256 of 2022 File number(s): BRC 17729 of 2020 Judgment of: ALDRIDGE J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the Application for Review was dismissed – Where the first respondent seeks a costs order – Consideration of s 117 of the Family Law Act 1975 (Cth) – Orders made for the applicant to pay the costs of the first respondent is a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: Lenova & Lenova (Costs) [2011] FamCAFC 141 Number of paragraphs: 15 Date of last submissions: 17 April 2023 Date of hearing: Heard by way of written submissions Place: In Chambers The Applicant: Self-represented litigant Counsel for the First Respondent: Ms Murphy Solicitor for the First Respondent: Cherry Family Law The Second Respondent: Did not participate Solicitor for the Independent Children’s Lawyer: Did not participate ORDERS
NAA 256 of 2022
BRC 17729 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CANNON
Applicant
AND: MR CANNON
First Respondent
MR GLYNN
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
11 may 2023
THE COURT ORDERS THAT:
1.The applicant is to pay the first respondent’s costs fixed in the sum of $4,090 within 28 days.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cannon & Cannon (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
On 31 March 2023, I dismissed an Application for Review of a decision of an appeal judicial registrar made on 21 December 2022, dismissing the application seeking an extension of time in which to appeal. The first respondent now seeks his costs of the application in the sum of $4,090.91.
In proceedings under the Family Law Act 1975 (Cth) (“the Act”), parties are to bear their own costs unless the court considers that, in the circumstances, a different order is just (s 117). In considering such an order, the court must have regard to the considerations set out in s 117(2A) of the Act.
The parties raised the following matters for consideration.
The applicant did not identify her financial position but said that she had financial difficulties and that a costs order would cause her financial hardship. That is a relevant consideration, but not determinative (Lenova & Lenova (Costs) [2011] FamCAFC 141).
That statement is however, hard to reconcile with her evidence. In a Financial Statement filed by her on 28 February 2023, the applicant said she earnt $1,700 a week.
The first respondent asserted that the applicant has recently sold the former matrimonial home for $800,000 having received it as part of the property settlement orders made in March 2021 (which at that time it had a value of $630,000).
Even disregarding the values for the house, the applicant appears to own a significant asset and to have a reasonable income.
The first respondent does not refer to his financial position but points out that the Application for Review was the sixth application made by the applicant since the final parenting orders were made on 6 September 2022. Those orders were made by consent but the applicant is aggrieved by what she considers the manner by which her consent was obtained.
The first respondent has incurred expense in defending these applications.
The applicant was wholly unsuccessful.
The decision of the appeal judicial registrar of 21 December 2022 pointed out the difficulties associated with seeking to appeal against consent orders and identified the deficiencies in the applicant’s evidence. Neither was addressed in the review application.
The applicant submits that the respondent has acted unreasonably and refused to mediate. I do not agree. He is entitled to rely on the consent final orders.
Taking these matters into account, it is just that the applicant pay the first respondent’s costs.
No challenge was made to the sum claimed, which was calculated in accordance with
Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and appears appropriate.
The applicant will pay the first respondent’s costs fixed in the sum of $4,090 within 28 days.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 11 May 2023
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