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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

Grounds of appeal

[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.

Continue reading Cannon & Cannon (No 2)

Details

AGLC: Cannon & Cannon (No 2) [2023] FedCFamC1A 66
Case: [2023] FedCFamC1A 66
Decision Date

CaseChat Overview and Summary

In the matter of Cannon & Cannon (No 2), the appeal was brought against the order dated 6 September 2022, which dismissed an application for review of a decision made by an appeal judicial registrar. The applicant, self-represented, sought to appeal against the dismissal of her application for an extension of time to appeal. The first respondent, who is also a party to the underlying proceedings, sought his costs from the applicant in the sum of $4,090.91. The court was required to consider the provisions of section 117 of the Family Law Act 1975 (Cth) in relation to costs and the relevant considerations set out in section 117(2A) of the Act.

The court considered the financial position of the applicant, who claimed financial hardship, but noted that she had not provided sufficient evidence to support this claim. The court also considered the applicant's income and ownership of a significant asset, the former matrimonial home, which she sold for $800,000. The court found that the applicant had been wholly unsuccessful in her application for review and had made multiple applications since the final parenting orders were made. The court concluded that it was just for the applicant to pay the first respondent's costs. The sum claimed was calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and was deemed appropriate.

The court ordered that the applicant is to pay the first respondent's costs fixed in the sum of $4,090 within 28 days. The court also noted that the form of the order is subject to the entry in the Court's records and that this copy of the Court's Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order. The publication of this judgment by this Court under the pseudonym Cannon & Cannon (No 2) has been approved pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth).

Orders