Otieno & Mwangi

[2022] FedCFamC1A 145

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Otieno & Mwangi [2022] FedCFamC1A 145

Appeal from:

Otieno & Mwangi [2022] FedCFamC2F 469

Appeal number(s):

NAA 111 of 2022

File number(s):

DGC 2544 of 2013

Judgment of:

AUSTIN J

Date of judgment:

19 September 2022

Catchwords:

FAMILY LAW – APPEAL – Costs – Application for costs in discontinued appeal – Where the appellant discontinued the appeal only days before the appeal hearing – Where the respondent and Independent Children’s Lawyer’s (“the ICL”) applications for costs were entertained on the day set aside for the appeal hearing – Where costs are deserved – Where neither party was legally aided in the appeal – Where the appellant failed to comply with procedural orders made by the appeal registrar – Where the appellant did not assert any financial hardship in having to meet any costs order – Application granted – Appellant to pay the respondent and ICL’s party/party costs of and incidental to the appeal in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) Pts VII, VIII, s 117

Cases cited:

De Roma & De Roma (2013) 49 Fam LR 226; [2013] FamCA 566

LAC & TRF & LKL (2005) 33 Fam LR 123 ; [2005] FamCA 158

PJ and NW [2005] FamCA 162

Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44

Number of paragraphs:

11

Date of hearing:

19 September 2022

Place:

Newcastle (via video link)

Solicitor for the Appellant:

Vasilaras & Co Lawyers

Counsel for the Respondent:

Ms Dwyer

Solicitor for the Respondent:

Alfred P Mayuka Solicitor

Counsel for the Independent Children's Lawyer:

Mr Eidelson

Solicitor for the Independent Children's Lawyer:

CE Family Law

ORDERS

NAA 111 of 2022
DGC 2544 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR OTIENO

Appellant

AND:

MS MWANGI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	AUSTIN J
DATE OF ORDER:	19 September 2022

THE COURT ORDERS THAT:

1.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal in the fixed sum of $7,146.30.

2.The appellant shall pay the Independent Children’s Lawyer’s party/party costs of and incidental to the appeal in the fixed sum of $3,676.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Otieno & Mwangi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. By Notice of Appeal filed on 18 May 2022, the appellant appealed from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 20 April 2022 to finalise causes of action between he and the respondent in respect of their children and their property pursuant to Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively.

2. The appeal hearing was fixed for Monday 19 September 2022 but, on Friday 16 September 2022, the appellant discontinued the entirety of the appeal.

3. The respondent and the Independent Children’s Lawyer (“the ICL”) both foreshadowed their applications against the appellant for their costs of the appeal, which applications were entertained on the day set aside for the appeal hearing.

4. For the following reasons, the respondent and the ICL should both have their party/party costs of the appeal.

   The Respondent

5. The respondent claimed costs on alternate bases: $7,874.80 on a solicitor/client basis or $7,146.30 on a party/party basis. There was no proper reason why the appellant’s exposure to costs should be calculated on other than a party/party basis, which the respondent conceded.

6. Costs are, however, deserved. Neither party was legally aided in the appeal (s 117(2A)(b)), the appellant failed to comply with procedural orders made by the appeal registrar (s 117(2A)(c)), and the respondent was needlessly put to legal expense over a period of months preparing to defend the appealed orders until the cusp of the appeal hearing (s 117(2A)(g)).

7. The appellant did not assert any financial hardship in having to meet any costs order (s 117(2A)(a)). The evidence before the primary judge in respect of the property dispute was that property worth nearly $1 million had already been divided between the parties. The appellant engaged legal representatives throughout the appeal, so it may be reasonably imputed he has sufficient financial capacity to meet their costs. If he has the capacity to meet their costs, there is no good reason why he cannot meet the respondent’s costs.

   The ICL

8. The ICL is not a party to the proceedings (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 207 and 225–226) and so, unlike the situation for parties, s 117(1) does not create any starting presumption about the ICL bearing his or her own costs (De Roma & De Roma (2013) 49 Fam LR 226 at [12]). The Act expressly contemplates costs orders being made in favour of an ICL (s 117(3)).

9. The Court is required to disregard the ICL’s funding by a legal aid scheme (s 117(5)), which has been interpreted to mean the ICL should be presumed to be unfunded so as to generally incline the Court towards a costs order in favour of the ICL, since the purpose of the provision is to protect the public purse (De Roma & De Roma at [2]–[3], [39]–[54]; PJ and NW [2005] FamCA 162 at [66]; LAC & TRF & LKL (2005) 33 Fam LR 123 at [61]–[63]).

10. Again, the appellant did not demonstrate he would suffer financial hardship if ordered to bear a proportion of the ICL’s costs (s 117(4)(b)).

11. The appellant should pay the ICL’s very modest cost of $3,676.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       19 September 2022