Lietzau & Lietzau (No 2) - [2020] FamCAFC 217

FAMILY COURT OF AUSTRALIA

LIETZAU & LIETZAU (NO. 2)

[2020] FamCAFC 217

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – ADJOURNMENT – Where the respondent opposes any order for costs being made and challenges the amounts sought – Where the respondent seeks that the application be adjourned to enable him to pursue an application which had been refused for filing – Where the order sought in that application was not able to be made and the respondent did not address the issues that needed to be addressed in such an application in any of the material sought to be filed by him – Where the respondent may if so advised start again and file the correct application supported by an affidavit addressing the issues which need to be addressed – Where there are circumstances which justify an order for costs being made – Where the respondent has been wholly unsuccessful in the proceedings – Where the applicant is in a far better financial position than the respondent whose position can be described as parlous – Where there is ample Full Court authority that impecuniosity is not a bar to an order for costs being made where there are circumstances that otherwise justify an order – Costs ordered in favour of the applicant to be as taxed or assessed in default of agreement.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 22.40

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123; [2005] FamCA 158
Lietzu & Lietzu [2020] FamCAFC 149

APPLICANT:

Ms Lietzau

RESPONDENT:

Mr Lietzau

FILE NUMBER:

PTW

1898

2017

APPEAL NUMBER:

WEA

2019

DATE DELIVERED:

3 September 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

27 August 2020

LOWER COURT JURISDICTION:

Family Court of Western Australia

PREVIOUS APPEAL JUDGMENT DATE:

24 August 2018

PREVIOUS APPEAL JUDGMENT MNC:

[2018] FamCAFC 167

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Johnson

SOLICITOR FOR THE APPLICANT:

Kim Wilson & Co

THE RESPONDENT:

In Person

Order

The respondent husband pay the applicant wife’s costs of and incidental to the Application in a Case filed on 12 September 2019 and the Application in an Appeal filed on 19 December 2019, with such costs to be as taxed or assessed in default of agreement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lietzau & Lietzau (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to…

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: [2020] FamCAFC 217
Decision Date: 3 September 2020

CaseChat Overview and Summary

The appeal before the Family Court of Australia in Lietzau & Lietzau (No. 2) was an application by Ms Lietzau (the wife) for costs against Mr Lietzau (the husband). The wife sought orders for costs in relation to the Application in an Appeal filed on 12 September 2019, as well as the Application in a Case filed on 19 December 2019. The husband opposed the application and challenged the amounts sought. The wife sought an order for costs in accordance with s 117 of the Family Law Act 1975 (Cth), which allows the court to make an order for costs if it is of the opinion that there are circumstances that justify it. The court considered the relevant factors in s 117(2A) and found that the husband had been wholly unsuccessful in the proceedings, which was sufficient to justify an order for costs. The court also considered the financial circumstances of each party, finding that the wife was in a far better financial position than the husband, but that impecuniosity was not a bar to an order for costs if there were circumstances that otherwise justified it. The court therefore ordered the husband to pay the wife’s costs of and incidental to the Application in a Case and the Application in an Appeal, with such costs to be as taxed or assessed in default of agreement.

The appeal before the court in Lietzau & Lietzau (No. 2) involved a consideration of the legal issues surrounding an application for costs in family law proceedings. The court considered the relevant provisions of the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth), as well as relevant Full Court authority. The court found that the wife’s application for costs was governed by s 117 of the Family Law Act, which allows the court to make an order for costs if it is of the opinion that there are circumstances that justify it. The court considered the relevant factors in s 117(2A) and found that the husband had been wholly unsuccessful in the proceedings, which was sufficient to justify an order for costs. The court also considered the financial circumstances of each party, finding that impecuniosity was not a bar to an order for costs if there were circumstances that otherwise justified it. The court therefore made an order for the husband to pay the wife’s costs of and incidental to the Application in a Case and the Application in an Appeal, with such costs to be as taxed or assessed in default of agreement.

Orders