O & L

The Family Court of Australia heard an application by the mother seeking a stay of costs orders made against her. The dispute arose from previous proceedings concerning the residence of the parties' two children, which had been determined in favour of the father. Following those substantive proceedings, the father sought and was awarded costs. The mother's current application sought to permanently stay these costs orders, or alternatively, to stay them pending an application for an extension of time to appeal the costs orders, or until the expiry of a care order made under the *Children and Young Persons (Care and Protection) Act 1989* (NSW).

The primary legal issue before the Court was whether Justice Boland was *functus officio*, meaning whether he had discharged his duty and no longer had authority to alter or set aside his previous costs orders. If the Court found he was *functus officio*, the only avenue for the mother to challenge the costs order would be through an appeal to the Full Court, potentially requiring an extension of time. The secondary issue was whether, in the circumstances, the Court should exercise its inherent jurisdiction to grant a stay of the costs order pending a potential appeal.

Justice Boland reasoned that the costs order made on 24 February 2004, and subsequent supplementary costs orders, were final determinations of the costs application. He referred to *Kazimierczak & Koch* (1987) FLC 91-849, which established that in the Family Court, the power to award costs is statutory and limitations are found within the *Family Law Act 1975* (Cth). As the costs application was considered a matrimonial cause under s 4(1)(f) of the Act and had been determined, the Court found itself *functus officio* regarding the ability to set aside or vary the costs order. Consequently, the Court considered the mother's application for a stay pending a foreshadowed application for an extension of time to appeal. Applying principles from cases such as *Commission of Taxation v The Commonwealth of Australia and the Meyer Emporium Limited* (1986) and *Alexander v Cambridge Credit Corporation* (1987), the Court noted that a stay is an exceptional remedy requiring special circumstances to prevent an appeal from being nugatory. Despite the mother's reliance on events occurring after the costs order, including care orders for the children, the Court found that the material presented did not demonstrate a sufficient basis to exercise its inherent jurisdiction to grant a stay prior to any formal application for an extension of time to appeal being made and considered by the Full Court.

The mother's application filed on 28 June 2005 was dismissed.