Greystoke and Greystoke (Costs)

[2007] FamCA 1043

FAMILY COURT OF AUSTRALIA

GREYSTOKE & GREYSTOKE (COSTS) [2007] FamCA 1043

FAMILY LAW - COSTS – Circumstances justifying order – parties’ financial circumstances – applicant wholly unsuccessful – order for costs made

Family Law Act 1975 (Cth), s 117, s 117(2A)

APPELLANT: MS GREYSTOKE

RESPONDENT: MR GREYSTOKE

FILE NUMBER: PTW 2039 of 1992

APPEAL NUMBER: WA 13 of 2006

DATE DELIVERED: 5 September 2007

PLACE DELIVERED: Perth

PLACE HEARD:

JUDGMENT OF: Bryant CJ, Kay and Thackray JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Western Australia

LOWER COURT JUDGMENT DATE: 28 July 2006

LOWER COURT MNC: [2006] FCWA 79

REPRESENTATION

COUNSEL FOR THE APPELLANT: Self Represented

COUNSEL FOR THE RESPONDENT: Mr Walker

SOLICITOR FOR THE RESPONDENT:

Max Beckerling,

DCH Legal Group

Orders

1. That the Applicant wife pay the Respondent husband’s costs of and incidental to her application for leave to appeal against the orders made by the Honourable Justice Penny on 28 July 2006 as agreed, or in default of agreement, as assessed in accordance with the provisions of the Family Law Rules.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Greystoke and Greystoke (costs)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 13 of 2006
File Number:  PTW2039 of 1992

MS GREYSTOKE

Appellant

And

MR GREYSTOKE

Respondent

REASONS FOR JUDGMENT

1. On 13 July 2007 we dismissed the wife’s application for leave to appeal against child support orders made by the Honourable Justice Penny on 28 July 2006. 

2. We directed each party to file written submissions in relation to the costs relating to the application for leave to appeal. We have now received those submissions. 

3. The husband seeks that the wife pay his costs in the sum of $16,379.95.  

4. As best we can understand the wife’s submissions, she resists the payment of costs but submits that if any costs are awarded they should be calculated in accordance with the appropriate scale.

5. In support of her submissions the wife has also filed an application seeking to adduce evidence that she asserts is relevant to the consideration of the liability for and quantum of costs to be ordered.  We have not found the documents sought to be admitted into evidence particularly helpful in relation to determining the costs issues that arise as a result of our dismissing the wife’s application for leave to appeal. 

6. The Court’s power to make an order for costs is contained in s 117 of the Family Law Act 1975. That section provides that if the Court is of the opinion there are circumstances that justify in so doing the Court may make such orders as it considers just. 

7. Section 117(2A) sets out a number of considerations that the Court shall have regard to in determining what order, if any, should be made for costs. It seems to us that of the matters set out in s 117(2A) the considerations relevant to the outcome of this application for costs are the financial circumstances of each of the parties and the fact that the Applicant wife was wholly unsuccessful in the proceedings.

8. The financial circumstances as found by the trial judge were:

   ·The husband was earning in excess of $50,000 per annum, had a half interest in a home and some superannuation. 

   ·The wife had at all times earned in excess of $60,000 per annum but had not been able to save or accumulate any assets for herself.

   ·The wife had normal day to day expenses incurring for the children of the marriage including medical expenses.

9. Given the outcome of the application for leave appeal and the financial circumstances as outlined above, we are of the view that it is appropriate for the wife to pay the husband’s costs as agreed and in default of agreement as assessed. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  5 September 2007