Hopkins & Elliott (No 4) - [2023] FedCFamC1F 532

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hopkins & Elliott (No 4) [2023] FedCFamC1F 532

File number(s): SYC 5636 of 2021

Judgment of: CAMPTON J

Date of judgment: 29 June 2023

Catchwords: FAMILY LAW – COSTS – Costs of two unsuccessful applications for review of the wife and a successful application for enforcement of the husband – Costs ordered in a fixed sum.

Legislation:
Family Law Act1975 (Cth) ss 79, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Atkins & Hunt and Ors [2017] FamCAFC 131

Hopkins & Elliott (No 3) [2023] FedCFamC1F 531

Division: Division 1 First Instance

Number of paragraphs: 12

Date of hearing: 29 June 2023

Place: Sydney

Counsel for the Applicant: Ms Rusiti

Solicitor for the Applicant: Parker Law

Solicitor for the Applicant: Mr Neumann, Eddy Neumann Lawyers
ORDERS

SYC 5636 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HOPKINS

Applicant

AND:
MS ELLIOTT

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

29 JUNE 2023

THE COURT ORDERS THAT:
1.The wife pay the husband’s costs of and incidental to his Application Enforcement filed 19 April 2023 as amended 16 May 2023, of and incidental to the wife’s Applications for Review as filed 6 June 2023 and amended 22 June 2023 and filed 19 June 2023, in the sum of $5,554. Such costs are to be paid within 14 days of compromise or determination of the wife’s s 79 claim.
2.The costs paid to the husband pursuant to [the above order] be secured with priority on the wife’s s 79 verdict.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hopkins & Elliott (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:

These reasons determine the husband’s application for costs made subsequent to my determination today of two Applications for Review of the wife from orders made by a judicial registrar enforcing an order made by a judge of this Court, and of his Application for Enforcement of the primary order.
These reasons assume familiarity with the reasons delivered earlier today determining each of those applications (see Hopkins & Elliott (No 3) [2023] FedCFamC1F 531 (“the earlier reasons”)).
The orders as to costs sought by…

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.

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Details

Case: [2023] FedCFamC1F 532
Decision Date

CaseChat Overview and Summary

The court heard an application for costs from the husband, Mr Hopkins, following two unsuccessful applications for review made by the wife, Ms Elliott, and a successful application for enforcement of a primary order by the husband. The wife opposed the application for costs, arguing that any costs be reserved. The court was required to determine whether a costs order was appropriate, and if so, what sum of costs should be awarded. The court considered the relevant principles governing costs in family law cases, the history of the litigation, and the financial circumstances of the parties. The court found that a costs discretion was justified and exercised in favour of the husband. The court determined that the wife should pay the husband’s costs of $5,554 within 14 days of the compromise or determination of the wife’s s 79 claim. The court also ordered that the costs be secured with priority on the wife’s s 79 verdict. The court noted that the wife’s financial circumstances, on the limited available evidence, would not permit her to pay an order for costs within 14 days. The court was not satisfied that the husband had established a foundation to require a consideration that the wife’s solicitor pay the costs order.
The court concluded that it was just and appropriate to fix costs in the sum sought by the husband of $5,554. The court’s decision was based on the history of the litigation, the wife’s unsuccessful applications for review, and the husband’s successful application for enforcement. The court’s order for costs was designed to ensure that the husband was compensated for the costs of the litigation and to provide an incentive for the wife to comply with the primary order. The court’s order also recognised the financial constraints faced by the wife and provided a mechanism for the husband to recover his costs if the wife was unable to pay within the specified timeframe.

Orders