Cheni and Stiller (No 2) - [2016] FamCA 218

FAMILY COURT OF AUSTRALIA

CHENI & STILLER (NO 2)

[2016] FamCA 218

FAMILY LAW – COSTS – Where application for contravention – Where application dismissed – Where application for costs on indemnity basis refused – Where appropriate to order costs on a party/ party basis.

Family Law Act 1975 (Cth) ss 117, 70NCB, 70NDC, 70NEB, 70NFB
Family Law Rules 2004 (Cth) rr 19.08, 19.08

Bele & Vaughan (Costs) [2012] FamCAFC 198
Cheni & Stiller [2016] FamCA 57
Hawkins & Roe [2012] FamCAFC 77
Kohan & Kohan (1993) FLC 92-340
Penfold v Penfold (1980) 144 CLR 311
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681

APPLICANT:

Mr Cheni

RESPONDENT:

Ms Stiller

INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

FILE NUMBER:

PAC

2819

2013

DATE DELIVERED:

8 April 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

11 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rosic

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT:

Saldaneri & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

Orders

That the applicant father pay the respondent mother’s costs of and incidental to the contravention application filed by him on 4 September 2015 and of the present costs application, such costs to be paid on a party/party basis as agreed within one month from the date of this order or otherwise as assessed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2819 of 2013

Mr Cheni

Applicant

And

Ms Stiller

Respondent

REASONS FOR JUDGMENT

The application for determination is an application for costs by the respondent mother arising from the dismissal of a contravention application brought by the applicant father. The father’s contravention application filed on 4 September 2015 was dismissed by order on 11 February 2016: Cheni & Stiller [2016] FamCA 57.
On hearing of the father’s contravention application there was a finding that there was in effect no case for the mother to answer, the alleged contraventions being incapable of being contraventions of the orders.

Costs

Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980)…

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 Cheni and Stiller (No 2)

Details

AGLC: Cheni and Stiller (No 2) [2016] FamCA 218
Case: [2016] FamCA 218
Decision Date: 8 April 2016

CaseChat Overview and Summary

In *Cheni and Stiller (No 2)*, Foster J of the Federal Circuit Court of Australia considered an application for costs following a contravention application filed by the applicant father. The dispute concerned the costs associated with the father's unsuccessful contravention application.

The primary legal issue before the court was the appropriate order for costs in relation to the contravention application. Specifically, the court had to determine whether the father, as the unsuccessful applicant, should be ordered to pay the respondent mother's costs.

Foster J ordered that the applicant father pay the respondent mother’s costs of and incidental to the contravention application filed by him on 4 September 2015, and of the present costs application. These costs were to be paid on a party/party basis, either as agreed within one month or otherwise as assessed.

Orders

Orders of the court

That the applicant father pay the respondent mother’s costs of and incidental to the contravention application filed by him on 4 September 2015 and of the present costs application, such costs to be paid on a party/party basis as agreed within one month from the date of this order or otherwise as assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.