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:

By Notice of Appeal filed on 18 May 2022, the appellant appealed from orders made by a…

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.

Continue reading Otieno & Mwangi

Details

AGLC: Otieno & Mwangi [2022] FedCFamC1A 145
Case: [2022] FedCFamC1A 145
Decision Date

CaseChat Overview and Summary

In the matter of Otieno & Mwangi, the appellant, Mr. Otieno, appealed against the orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 20 April 2022. These orders pertained to the finalisation of causes of action between Mr. Otieno and the respondent, Ms. Mwangi, in relation to their children and property, as governed by Pt VII and Pt VIII of the Family Law Act 1975 (Cth). The appeal hearing was scheduled for 19 September 2022; however, Mr. Otieno discontinued the appeal on 16 September 2022, just days before the hearing. The respondent and the Independent Children's Lawyer (ICL) subsequently applied for costs of the appeal, which were heard on the originally scheduled appeal hearing date.

The court had to determine whether costs should be awarded to the respondent and the ICL, and if so, in what amount. The respondent claimed costs on a solicitor/client basis or a party/party basis, while the ICL, being an unfunded party, sought costs based on the assumption that it should be presumed unfunded to protect the public purse. Additionally, the court considered whether Mr. Otieno would suffer financial hardship if ordered to bear a proportion of the ICL's costs.

The court found that the respondent's party/party costs were deserved as neither party was legally aided in the appeal, Mr. Otieno failed to comply with procedural orders made by the appeal registrar, 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. Furthermore, the appellant did not assert any financial hardship in having to meet any costs order. Regarding the ICL, the court found that it should be presumed unfunded, and thus, inclined towards a costs order in favour of the ICL. Mr. Otieno also did not demonstrate he would suffer financial hardship if ordered to bear a proportion of the ICL's costs.

The court granted the applications for costs and ordered that Mr. Otieno pay the respondent's party/party costs of and incidental to the appeal in the fixed sum of $7,146.30, as well as the ICL's party/party costs of and incidental to the appeal in the fixed sum of $3,676.

Orders