FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful and dismissed – Where the respondent sought indemnity costs against the appellant – Where a Calderbank offer was rejected – Whether there are circumstances to warrant a departure from the usual rule of ordering party and party costs – Where there are no circumstances to warrant a departure from the usual rule.
The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed. The appellant mother pay such costs within 42 days of agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nada& Nettle(Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY
Appeal Number: EA 174 of 2013 File Number: CAC 66 of 2011
Ms Nada
Appellant
and
Mr Nettle
Respondent
REASONS FOR JUDGMENT ON COSTS
On 16 July 2014 the Full Court dismissed the appeal of Ms Nada (“the mother”) against orders of Judge Neville whereby she was ordered to relocate the residence of her child with Mr Nettle (“the father”) from Tasmania to regional New South Wales.
His Honour’s orders came about because in July 2012 the mother, without notice to the father, took the child from the regional New South Wales where she had previously been living, to live in Tasmania. The mother’s actions remained undiscovered until March 2013. For a significant part of that time the mother maintained the appearance of living in regional New South Wales and afforded the father time with the child in that area. She accomplished this by flying with the child from Tasmania to Sydney airport where she was collected by her parents, driven to the area in regional New South Wales where they too lived and then to the place designated for the child to be collected by the father so that they could spend time together.
Although the proceedings initially brought by the father in the Federal Circuit Court were to have the mother…
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
AGLC
Nada & Nettle (Costs) [2014] FamCAFC 207
Case
[2014] FamCAFC 207
Decision Date
CaseChat Overview and Summary
The case of Nada & Nettle involves a dispute between the parents of a child regarding the costs associated with an appeal. The father, the respondent, appealed against the decision of the primary judge in family law proceedings, and the mother, the appellant, responded by challenging the costs order made against her. The matter was heard in the Family Court of Australia.
The central legal issue before the court was whether the appellant mother should be ordered to pay the respondent father's costs of the appeal. This included both the agreed costs and, in the event of no agreement, the assessed costs. The court was required to consider the relevant criteria for awarding costs, including the nature of the appeal, the conduct of the parties, and the outcome of the appeal.
The court found that the appeal was not entirely without merit and that the respondent father had a reasonable prospect of success on the appeal. However, the court also noted that the appellant mother had some justification for her position, which had led to the appeal. Given these factors, the court held that it was appropriate to order the appellant mother to pay the respondent father's costs of the appeal. This included both the agreed costs and, if necessary, the assessed costs, to be paid within 42 days of the agreement or assessment.
Orders
Orders of the court
1.
The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed. The appellant mother pay such costs within 42 days of agreement or assessment.