NAHOS & BELL
[2018] FamCAFC 131
•23 July 2018
FAMILY COURT OF AUSTRALIA
| NAHOS & BELL | [2018] FamCAFC 131 |
| FAMILY LAW – APPEAL – CHILD SUPPORT – LEAVE TO APPEAL – Where section 123A(6) of the Child Support (Assessment) Act 1989 (Cth) did not apply to prevent the trial judge from making findings as to the father’s income – Where the father failed to provide full and frank disclosure and his evidence was of no assistance in enabling the court to make accurate findings as to his income, property, and financial resources – Where the trial judge took into account the evidence that was before the court and provided clear reasons for her findings as to the father’s income – Where the trial judge did not err in failing to take into account an affidavit filed by the father but not relied upon – Where the trial judge provided adequate reasons for her findings as to the appropriate level of child support – Where the trial judge did not err in her findings as to any hardship the father might suffer – Application dismissed. FAMILY LAW – COSTS – Where the respondent sought costs in the event that the application for leave to appeal was unsuccessful – Where the applicant opposed the making of such an order on the basis of his financial circumstances – Where on the evidence before the trial judge the applicant is in a position to pay an order for costs – Where the applicant has been wholly unsuccessful and the respondent has incurred costs in opposing the application – Costs ordered as sought by the respondent. |
| Child Support (Assessment) Act 1989 (Cth) ss 102A(1)(a), 117(4)(ad), 117(4)(d), 117(4)(g)(ii)(A), 117(7)(a), 117(7B), 123A(6) Family Law Act 1975 (Cth) s 117(2A)(e) |
| Bass & Bass and Anor [2016] FamCAFC 64 Bennett & Bennett (1991) FLC 92-191 |
| APPLICANT: | Mr Nahos |
| RESPONDENT: | Ms Bell |
| FILE NUMBER: | MLC | 10071 | of | 2012 |
| APPEAL NUMBER: | SOA | 82 | of | 2017 |
| DATE DELIVERED: | 23 July 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 27 March 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 October 2017 |
| LOWER COURT MNC: | [2017] FCCA 2408 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Dellidis |
| SOLICITOR FOR THE RESPONDENT: | Farrar Dunn Gesini |
Orders
The application for leave to appeal be dismissed.
The applicant father pay the respondent mother’s costs of and incidental to the application fixed in the sum of $3,806.
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 Nahos & Bell 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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 82 of 2017
File Number: MLC 10071 of 2012
| Mr Nahos |
Applicant
And
| Ms Bell |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 30 October 2017 Mr Nahos (“the father”) seeks leave to appeal and, if leave is granted, to appeal against child support orders made by Judge Bender on 4 October 2017. Ms Bell (“the mother”) opposes the application for leave to appeal, and the appeal, in the event that leave is granted.
The orders of 4 October 2017 provided for a child support departure order pursuant to the provisions of s 116(1)(b) of Division 4 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”), an order pursuant to s 123(1)(b) that the father pay the mother a lump sum payment of $30,346.12 on or before 3 December 2017, and that pursuant to s 123A(3) of the Assessment Act payment of that amount be credited 100 per cent against any liability of the father for an administrative assessment of child support in relation to the child of the parties for the period 11 June 2014 to 12 December 2023.
The father appeared on the appeal without legal representation, as was the case before the trial judge.
Background
The parties began their relationship in August 2008, and separated in November 2010. There is one child of the relationship, X, born in 2011. He is currently aged seven years.
At the time the parties separated the father was working in the public service earning approximately $90,000 per annum. The mother was unemployed and relied on Centrelink benefits and child support payments.
On 1 November 2012 the mother instituted property settlement and parenting proceedings.
On 3 September 2013 final orders were made by consent in relation to the property settlement proceedings, and on 11 November 2013 final parenting orders were also made by consent.
In December 2013 the father resigned from his position and sought to pursue a career as a property developer, thereby immediately reducing his income to nil. He notified the Child Support Agency of this, and ceased paying child support.
On 1 March 2014 the father commenced a two year diploma course of building and construction at a local TAFE, which course he completed in late 2016. At the time of the hearing before the trial judge the father had just completed the examinations to become a licensed builder. He planned to become a self-employed builder allowing him to build other people’s homes as well as undertaking his own property development.
On 31 March 2014 the father filed an Initiating Application seeking to vary the parenting orders. After that application was amended on 15 June 2014, it was dismissed on 18 June 2014.
On 11 June 2014 the mother filed a Response in which she sought, pursuant to the Assessment Act, a departure order, and an order that the father pay lump sum child support.
On 16 and 17 April 2015 the trial in relation to child support orders was heard.
At the time of the trial the father asserted that his only source of income was irregular payments from buying and selling properties. The mother deposed to working part-time in the public service earning approximately $49,000 per annum, and that she earned irregular payments from casual work.
On 21 August 2015 Judge Small made orders dismissing the mother’s application for a child support departure order, but ordered pursuant to s 123A(1) of the Assessment Act, that the father pay lump sum child support of $13,853.88, and that that payment be credited 100 per cent against any liability of the father for an administrative assessment in relation to the child of the relationship for the period 11 June 2014 to 10 June 2017.
On 11 January 2016 the mother filed a Further Amended Notice of Appeal seeking leave to appeal, and if leave was granted, to appeal the child support orders made by Judge Small on 21 August 2015.
I heard the mother’s application and appeal, and on 30 November 2016 I made orders granting leave to appeal, allowing the appeal, setting aside the orders of Judge Small, and granting costs certificates.
On 18 May 2017 Judge Bender undertook the rehearing, and on 4 October 2017 made the orders the subject of this application and appeal.
Summary of the trial judge’s reasons delivered 4 October 2017
The trial judge commenced her reasons for judgment by setting out the applications to be determined, a background, and the litigation and child support history of the parties.
At [33] her Honour reproduced [58] – [82] of Judge Small’s judgment delivered on 21 August 2015, which, in summary, recorded the father’s change of career due to problems experienced in his previous career, the death of his brother in 2013 causing “him to rethink his priorities in life, particularly as he had felt he received no support from his [employer] in relation to his loss” ([63] of Judge Small’s judgment of 21 August 2015), and he ultimately resigning from his previous position in December 2013.
Her Honour then turned to the father’s property development history, recording at [34] that the father had “a lifelong passion for property and property development”, and that he intended to pursue a career as a self-employed builder once he obtained his building license.
Her Honour addressed the relevant sections of the Assessment Act, and in considering each of the relevant factors under s 117(4) found as follows:
a)The mother and the father had a duty to maintain and support the child.
b)The child had no special needs and was to be educated in the State education system.
c)The child had no financial resources, earning capacity or independent income.
d)The mother worked part-time earning a base salary of $62,993.30 per annum. At the time of the hearing she was employed on a 12 month temporary contract with higher duties taking her annual salary to $79,482.25. Given the uncertainty though of her continuing higher duties in the future, the mother sought that her base salary be used. The mother had no real property and her only financial resource was her preserved superannuation entitlements.
e)The father in his Financial Statement sworn 28 April 2017 deposed to earning $270 per week as a property developer, having weekly expenses of $2,935 made up of credit card payments of $2,500 per week and living expenses of $250 per week, as well as rent payments for he and his partner of $560 per week. His property, made up of savings, a motor vehicle, assets in his construction business, a trailer and household contents was $56,382. He had a credit card liability of $13,000 and financial resources totalling $423,350 made up of his [superannuation] ($183,350), and $240,000 equity in his partner’s home. The trial judge found the father’s evidence to be “inconsistent, vague and … of no assistance whatsoever in enabling this Court to have any objective evidence before it as to his current income, property and financial resources” ([85]). Her Honour also noted the failure of the father to provide full and frank disclosure.
f)The mother asserted that the father had a greater earning capacity than that declared by him, and if he had continued in his [previous] career he would have earned in the vicinity of $80,000 to $90,000 per annum, and therefore the figure of $84,000 should be used as the father’s income for the purposes of assessing child support and not “an income of nil” ([112]) as asserted by him.
Because of the mother’s claim that the father had a greater earning capacity [in his previous career] than was reflected in his income as a property developer, her Honour addressed s 117(7B) of the Assessment Act. Her Honour found that the father had changed his occupation in 2013, but that that was because of his state of health, and thus there was no basis to determine, pursuant to that subsection, that the mother’s claim was justified ([113] – [140]). Further, her Honour observed at [138] that it was not her view that “the Father changed his profession in order to reduce the level of child support paid by him”.
Her Honour then addressed s 117(4)(g) of the Assessment Act, and at [143] found that to not make an order as sought by the mother would result in hardship for her, given that that would mean the father paying minimal or no child support for the child, impacting “on the Mother’s financial ability to fully provide for him”.
Her Honour noted that her finding as to the father’s change of career did not see the end of the mother’s application for a departure order. Section 117(4)(d) still required the court to consider the income, property and financial resources of each of the parties when determining a departure application. In that regard her Honour found that “the Father had available to him financial resources that enabled him to comfortably maintain his lifestyle and at various times generate savings of over $400,000 and ultimately establish a property with equity in excess of $500,000” ([156]). On that basis her Honour was satisfied “that the Father has income, property and financial resources such that the assessment of the Child Support Agency that he had an income of nil is not correct and that there should be a departure order made” ([157]).
Her Honour then turned to consider ss 123 and 123A of the Assessment Act finding at [183] that lump sum child support should be paid by the father for the child for the period 11 June 2014 to 12 December 2023. The appropriate level of child support was $100 per week, and thus the lump sum amount was fixed at $44,200, less the sum of $13,853.88, being the amount already paid by the father.
Leave to appeal
Her Honour’s order was made pursuant to the Assessment Act, and leave is required to appeal that order (s 102A(1)(a)).
In Bass & Bass and Anor [2016] FamCAFC 64 at [86] – [87] the Full Court considered the principles that should apply when addressing s 102A of the Assessment Act. In summary, it is necessary to determine whether significant issues of importance relevant to the substantive legal rights of the parties involved are raised in the appeal and warrant the grant of appeal.
The “facts” relied on in support of the application for leave to appeal here, raise precisely the same issues as are found in the grounds of appeal if leave to appeal is granted. Plainly, if there is merit in any of the grounds of appeal then the test will be satisfied. Thus, I propose to first consider the grounds of appeal.
Grounds of appeal
Ground 1
That the learned trial judge failed to give adequate reasons in reaching her decision so as to make it impossible for the Appellate Court to determine whether or not the decision was based on an error of law.
As can be seen this ground complains of a lack of adequate reasons in reaching her Honour’s decision, but the actual complaint is that her Honour erred in “determining to set the Father’s income at a greater level than what is reflected in his actual income” (father’s summary of argument filed 27 February 2018, page 2). That complaint is based on s 123A(6) of the Assessment Act which provides as follows:
[Earning capacity of parent of the child] In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
Her Honour found at [135] – [140] that s 117(7B) of the Assessment Act was not satisfied here, and that is unchallenged in this appeal. However, the father has misunderstood what her Honour did in reaching her decision, and s 123A(6) does not in fact apply.
Plainly, given her Honour’s conclusion in relation s 117(7B), s 123A(6) prevented her Honour from finding that the father’s earning capacity was greater than his income, but her Honour was not addressing the father’s earning capacity; her Honour was addressing the father’s income and found that it was greater than what he said it was. In other words, her Honour was considering s 117(4)(d) of the Assessment Act, and not s 117(4)(ad) (see [150]).
Thus, there is no merit to this complaint.
I note that in his summary of argument the father also raises the question of her Honour’s treatment of the father’s evidence as to his income, and queries how her Honour arrived at the appropriate level of child support. However, those matters are the subject of Grounds 4 and 2 respectively, and I address them when considering those grounds.
I also pause to observe that in his summary of argument the father has raised issues that are not the subject of this ground of appeal, and I propose to ignore many of those issues for that reason. However, one such extraneous issue raised in the father’s summary of argument under Ground 1, I will comment on.
The father suggests that her Honour failed to disregard the financial circumstances of his partner as required by s 117(7B)(i) of the Assessment Act. Once again though the father is incorrect in this submission. Her Honour’s reasons at [105], [107] – [109] attest to how her Honour complied with that paragraph, as well as with s 117(7)(a).
Ground 2
That the learned trial Judge [sic] decision miscarried by failing to take into consideration the Father’s income.
The father’s evidence was that he had nil income, and that had been the case for up to the last three years. In support of that position he tendered his income tax returns for the years ending 30 June 2014, 30 June 2015 and 30 June 2016. They revealed that in the 2014 year his income was $58,415, in the 2015 year he sustained a loss of $298,141, and in the 2016 year he sustained a loss of $6,893 ([99]).
The income for the 2014 year is explained by the fact that the father ceased his [previous] employment in 2013. Thereafter his occupation has been that of property developer, and any income he has received has been more than offset by his expenses, according to his income tax returns. For example, in the 2016 year the loss was calculated on the basis of an income of $541,846 less expenses of $277,520, and the carry over loss of $298,141 for the 2015 year.
Her Honour found that the assessment of the Child Support Agency that the father had nil income was not correct. Her Honour did so after carefully considering all of the evidence, including that of the father, and in particular the father’s income tax returns, and her Honour’s finding was well open on that evidence.
Importantly, in [85], her Honour found as follows:
…the Father’s evidence was inconsistent, vague and was of no assistance whatsoever in enabling this Court to have any objective evidence before it as to his current income, property and financial resources.
In that context, her Honour highlighted at [86] – [87] the father’s lack of full and frank disclosure in relation to credit cards and bank statements in particular.
After referring to the father’s income tax returns in [98] and [99], her Honour said this:
100.It is reasonable to say that the Father’s taxation returns did not assist the Court in any way to being able to establish what, if any, the Father’s income was from his occupation as a property developer.
And later at [154]:
Whilst the Father’s taxation returns for the financial years 2014, 2015 and 2016 disclose little income from his property development enterprises, the Father was able to appropriately manage his taxation affairs, such that he could offset against his income the various expenditures associated with the construction of those properties and the running of his business generally.
Her Honour then continued:
155.When the, admittedly sparse, financial documents relating to the Father’s finances are examined, it is apparent that he has been able to live comfortably meeting all his expenses whilst undertaking the various developments and in particular, in the last twelve months, the construction of the Property A property.
156.It is not possible on the information before the Court to determine the Father’s income per se over the last three years with any precision. However, what is apparent is that the Father had available to him financial resources that enabled him to comfortably maintain his lifestyle and at various times generate savings of over $400,000 and ultimately establish a property with equity in excess of $500,000.
Thus, I reiterate that not only did her Honour take into account all of the evidence, but also provided clear reasons for her finding as to the father’s income.
In his summary of argument the father attempted to rely on what her Honour says at [106], namely, “…I accept the Father’s evidence in this regard”. However, that is not all that her Honour said in that paragraph, and the father has taken it out of context.
The paragraph reads as follows:
106.It is the Father’s evidence that the Property A property has not been built for the purposes of property development but rather as a permanent home for he, Ms S and [the child] when [the child] is living with them. I accept the Father’s evidence in this regard.
As can be seen, that paragraph does not support the claim that her Honour, inconsistently with her finding as to the father’s income, accepted the father’s evidence as to that income.
There is no merit in this ground of appeal.
Ground 3
That the learned trial Judge has not taken into account evidence filed to the Court.
Here the father complains that her Honour failed to take into account two pieces of evidence, and thus her decision is unsafe.
The first is an affidavit filed by the father on 4 May 2017. It is plain that her Honour did not take this affidavit into account, but that is understandable when the father did not rely on it. It was not included in his outline of case document filed on 16 May 2017, as a document relied on, and nor was it referred to at the commencement of the father’s case before her Honour as a document relied on (Transcript 4.8.2017, pages 2 – 5).
In any event, having read that affidavit, it is readily apparent that it neither contains any of the information, nor annexes any of the documents that would remedy the failure by the father to make full and frank disclosure, as found by her Honour. Indeed, it did not even address his financial position, and thus none of its contents renders her Honour’s findings as to the father’s income, property and financial resources either incorrect or unsafe.
The second piece of evidence are the income tax returns of the father, but there is nothing more to be said about that issue. As identified above, her Honour considered those income tax returns, but found correctly that they provided no assistance in establishing the father’s actual income as a property developer ([100]).
Finally, I note that in the father’s summary of argument relating to this ground of appeal he suggests that the trial judge failed to afford him “procedural fairness”. However, once again, this was not pleaded as a ground of appeal, and I propose to disregard it.
There is no merit in this ground of appeal.
Ground 4
That the learned trial Judge’s decision miscarried by failing to identify reasons on how she set the payment of Child Support.
In his summary of argument in support of this ground the father suggests that the trial judge has committed a number of errors in fixing the lump sum amount, but the only issue that requires any consideration is the claim that her Honour failed to provide any, or any adequate reasons, for finding that the “appropriate level of child support to be paid by the Father to the Mother on behalf of [the child] is $100 per week, a total of $5,200 per annum” ([189]).
Most, if not all of the other claims have been dealt with when addressing the other grounds of appeal. For example, there is no merit in the claims that her Honour erred in finding that the father had nil income, and in finding in effect, that the father’s income is greater than what he claimed. Further, s 123A(6) of the Assessment Act does not apply here, and it is simply not the case that the father “does not have access to any further equity in the family home” (father’s summary of argument filed 27 February 2018, page 6). Her Honour has also made no error in her treatment of the financial position of father’s partner, and the father has misrepresented what her Honour said at [166]. Similarly, it is of no relevance whether the child is in kindergarten or school, it also being too late to raise such issues. And finally, it is not open to the father to raise anything that arose out of the application for a stay of her Honour’s orders. There is no application to lead further evidence.
Thus, to return to the issue of the adequacy of her Honour’s reasons. The relevant finding is at [189], and according to the authorities (e.g. Bennett & Bennett (1991) FLC 92-191) it is necessary for the trial judge to provide reasons that reveal the pathway to her decision.
It is submitted by the mother that because of the father’s failure to provide full and frank disclosure, her Honour, in forming her view of the appropriate level of child support, did the best that she could on the evidence that was before the court. That submission requires an assessment of how her Honour addressed that evidence.
As a result of the father’s failure to provide full and frank disclosure, her Honour correctly found at [156] that, “[i]t is not possible on the information before the Court to determine the Father’s income per se over the last three years with any precision.” Then her Honour concluded appropriately at [157] that “…the assessment of the Child Support Agency that he had an income of nil is not correct and that there should be a departure order made”. As a result, her Honour turned to consider whether there should be a lump sum payment of child support, and at [183] concluded correctly that it was “just and equitable” as regards the child and the mother and the father, that an order be made that the father pay child support by way of a lump sum payment. Her Honour then looked at what amount should be paid, and said this:
184.The Mother seeks payment in the sum of $50,774 less any monies already paid to her pursuant to the orders made 21 June 2015. This would mean a payment to the Mother of $35,742, as she has been paid $13,853.88 in accordance with the orders of Judge Small.
185.Counsel for the Mother explained the basis for the calculation of that amount as follows:
a)for the period 11 June 2014 – 11 December 2016, the sum of $6,001 per annum based on the Father having an income of $81,000 per annum and the Mother having an income of $45,000 per annum. This would be a total amount of $15,025.
b)for the period 11 December 2016 – 12 December 2023, the sum of $5,106 per annum based on the Father having an income of $81,000 per annum and the Mother having an income of $62,993 per annum. This would be a total amount of $35,742.
186.As has been clearly indicated in this judgment it is very difficult, if not impossible, to ascertain the Father’s income since he left (employment omitted) at the end of 2013. It is also difficult to estimate the Father’s income over the next six and a half years.
187.Similarly, the Mother’s income is currently $79,482.25. This reflects a current employment level at .8 plus a higher duty allowance as the Mother currently has a temporary contract as a (occupation omitted). It is impossible to know whether the Mother may increase her working hours to full time or continue to be employed as a (occupation omitted).
188.It is therefore an artificial exercise to try and arbitrarily allocate income to the parties and try and calculate what the level of child support would be using the formula under the Act.
189.Given the findings in relation to the Father’s income and financial resources and the Mother’s ability to generate a reasonable income as a (occupation omitted), I have formed the view that an appropriate level of child support to be paid by the Father to the Mother on behalf of [the child] is $100 per week, a total of $5,200 per annum.
Thus, it can be seen that what her Honour did was to take into account all of the evidence that was presented, acknowledged that it was difficult, if not impossible, to ascertain the father’s income and estimate what it would be over the next six and a half years, recognised that it would be an artificial exercise to arbitrarily allocate income and apply the formula in the Assessment Act, and then, doing the best she could, fixed what she found to be an appropriate level of child support.
Importantly, it needs to be said that in that exercise her Honour was not determining the father’s income, but was taking into account her findings about his income and his financial resources, and the mother’s ability to earn, and on that basis fixing the level of child support. Plainly her Honour was not able to set out a precise calculation of that amount, but in the circumstances her Honour did not need to do so.
Thus, there is also no merit in this ground of appeal.
Ground 5
That the learned trial Judge has not taken into consideration the financial hardship that would be caused to the Father by way of making an order for a lump sum.
Unfortunately the father’s summary of argument in relation to this ground is of little assistance in understanding the gravamen of the father’s complaint. Thus, all I can do is consider the terms of the ground itself.
On that basis the issue becomes whether her Honour erred in failing to take into account the “financial hardship that would be caused to the Father by way of making an order for a lump sum” (see Ground 5). However, that begs the question of whether the father would suffer financial hardship.
Her Honour was hamstrung in making findings as to the father’s income because of his failure to provide full and frank disclosure. However, her Honour was able to make sufficient findings as to the father’s financial position to conclude as her Honour did in [157] (quoted above in [52]).
It is instructive to set out in full her Honour’s reasons for that conclusion as follows:
151.After the Father left (occupation omitted), he embarked on the first stages of his career as a property developer. Between 2014 and 2017 the Father developed three properties: the Property C property, the Property D property and the Property A property.
152.The monies to initially start his development projects came from the sale by the Father of properties owned by him in NSW. The monies for starting subsequent developments came from the sale of each of the properties as they were developed until finally the Father was able to build a home for he and Ms S in Property A. The Property A property would appear to have an equity of approximately $500,000.
153.Whilst that property is solely in Ms S’s name, it is the Father’s clear evidence that he has an equitable interest in that property.
154.Whilst the Father’s taxation returns for the financial years 2014, 2015 and 2016 disclose little income from his property development enterprises, the Father was able to appropriately manage his taxation affairs, such that he could offset against his income the various expenditures associated with the construction of those properties and the running of his business generally.
155.When the, admittedly sparse, financial documents relating to the Father’s finances are examined, it is apparent that he has been able to live comfortably meeting all his expenses whilst undertaking the various developments and in particular, in the last twelve months, the construction of the Property A property.
And then her Honour said this at [166]:
I have determined that the Father has the income, property and financial resources that justify a departure order. A perusal of his bank statements show an ability to easily meet his various expenses on a monthly basis as well as having in excess of $500,000 equity in the property owned by he and his partner Ms S.
(and see [171] and [172]).
Thus it can be seen that her Honour was not of the view that the father would suffer the hardship that s 117(4)(g)(ii)(A) of the Assessment Act requires to be taken into account.
Accordingly, I find no merit in this ground of appeal.
Conclusion
As referred to above, leave to appeal is sought on the same bases as the grounds of appeal. Thus, having found no merit in any of the grounds of appeal, it cannot be said that there is any basis for leave to appeal, and that application will be dismissed.
Costs
At the conclusion of the hearing of the application and the appeal, I received submissions from both parties as to the question of costs depending on the result.
In the event that the application for leave to appeal was unsuccessful, the mother sought costs of $3,806. That amount comprised her solicitor’s costs on a party/party basis, her counsel appearing pro bono.
The basis of the application for costs was that if the application was dismissed the father would therefore be wholly unsuccessful (s 117(2A)(e) of the Family Law Act 1975 (Cth)).
The father though opposed the making of an order for costs on the basis of his financial circumstances.
On the evidence before the trial judge I consider that the father is in a position to pay an order for costs, and indeed, I find that he should do so. His application was unsuccessful, and the mother has incurred costs in opposing that application. Accordingly, there will be an order for costs in favour of the mother as sought.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 23 July 2018.
Associate:
Date: 23 July 2018
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