Daines & Daines (Costs)

The matter before the court was an appeal against orders relating to costs made in the context of a family law dispute. The husband appealed against a costs order made by the trial judge, while the wife sought an order that the husband pay her costs of the appeals on a solicitor and own client basis. The wife had previously sought an order for costs in relation to a property settlement hearing that had been necessitated by the husband's claim that the trial judge was functus officio. The trial judge had ordered that the husband pay the wife's costs of the subsequent hearing, and this order was the subject of the husband's appeal.

The court had to determine whether the trial judge's orders for costs were appropriate. The court found that the husband's claim that the trial judge failed to finalise the parties' financial relationship and that necessitated the subsequent hearing was not supported by the record. The court also found that the trial judge had erred in including unpaid legal fees as a liability without notionally adding back the corresponding amount. This error meant that each party was liable for a proportion of the other's costs. The court remitted the matter to the trial judge for rehearing by a different judge.

The court dismissed the husband's appeal against the costs order made in the property settlement hearing. The court found that the husband's impecuniosity did not prevent an order for costs being made. The court ordered that the husband pay the wife's costs of the two previous appeals as assessed. The court found that there were no circumstances justifying a departure from section 117(1) of the Family Law Act 1975 (Cth) in respect of the unsuccessful costs appeals, which proceeded via written submissions. The court made no order as to costs in respect of the two other appeals.

The court allowed the appeal in EA 16 of 2013 and set aside paragraphs 1 and 2 of the Orders made by Federal Magistrate Cassidy on 7 December 2012. The court remitted the Application in a Case filed by the respondent wife on 16 October 2012 for rehearing by a judge of the Federal Circuit Court, other than Judge Cassidy. The court dismissed the appeal in EA 38 of 2013 and ordered that the appellant husband pay the respondent wife’s costs of and incidental to the appeals in EA 136 of 2012 and EA 37 of 2012 as agreed in writing or, failing agreement, as assessed. The court made no order as to costs in respect of the appeals in EA 16 of 2013 and EA 38 of 2013.