Renald & Renald (Costs)

Case [2018] FamCAFC 4


FAMILY COURT OF AUSTRALIA

RENALD & RENALD (COSTS) [2018] FamCAFC 4
FAMILY LAW – APPEAL – COSTS – Appellant seeks order for costs – Both parties have limited income but have assets – Order for costs would impose financial hardship on the respondent but the failure to make an order for costs in favour of the appellant would impose similar hardship on her – The respondent would have the capacity to meet the costs sought by the appellant – The appeal proceedings were not necessitated by a failure to comply with previous orders – Although the respondent was not wholly unsuccessful in the appeal, he had very limited success – “Conduct” under s 117(2A) of the Family Law Act 1975 (Cth) must be “in relation to the proceedings” – The respondent to pay the appellant’s costs to be assessed if not agreed.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth)
Legal Profession (Family Court of Western Australia) Determination 2016 (WA)

Collins and Collins (1985) FLC 91-603
Fitzgerald v Fish and Anor (2005) 33 Fam LR 123
Greedy and Greedy (1982) FLC 91-250
I and I (No 2) (1995) FLC 92-625
Luadaka v Luadaka (1998) FLC 92-830
Prantage v Prantage (2013) 49 Fam LR 197
Renald & Renald (No 2) [2017] FamCAFC 133

APPELLANT: Ms Renald
RESPONDENT: Mr Renald
FILE NUMBER: PTW 6955 of 2015
APPEAL NUMBER: WA 12L of 2017
DATE DELIVERED: 12 January 2018
PLACE DELIVERED: Perth
PLACE HEARD: Perth
JUDGMENT OF: Thackray J
HEARING DATE: In chambers by way of written submissions
LOWER COURT JURISDICTION: Magistrates Court of Western Australia
LOWER COURT JUDGMENT DATE: 10 March 2017
LOWER COURT MNC: N/A

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Dimond Family Lawyers
SOLICITOR FOR THE RESPONDENT: O’Sullivan Davies

Orders

  1. The appellant have leave to rely upon the submissions filed 27 July 2017.

  2. The Application in an Appeal filed 16 August 2017 be otherwise dismissed.

  3. The Application in an Appeal filed 27 July 2017 be allowed.

  4. The respondent pay the appellant’s costs of and incidental to the appeal, such costs to be assessed if not agreed.

  5. The costs payable pursuant to Order (4) shall include the costs associated with the appellant’s application for costs. 

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 Renald & Renald (Costs) 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 12L of 2017
File Number: PTW 6955 of 2015

Ms Renald

Appellant

And

Mr Renald

Respondent

REASONS FOR…

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Renald & Renald (Costs) [2018] FamCAFC 4
Case
[2018] FamCAFC 4
Decision Date

CaseChat Overview and Summary

Renald & Renald (Costs) involved an appeal regarding an order for costs between the appellant and the respondent, who were both parties in the underlying family law matter. The appellant sought an order for costs from the respondent, arguing that both parties had limited income but the respondent possessed assets that could cover the costs. The appeal centred on whether the respondent should bear the appellant's costs, given the financial circumstances of both parties. The Family Court of Australia was tasked with determining the appropriate course of action regarding the costs order.

The court had to decide whether it was appropriate to make an order for costs in favour of the appellant, considering the financial hardship it would impose on the respondent. The court noted that while the respondent was not wholly unsuccessful in the appeal, the appellant had achieved very limited success. The court also examined the conduct of the parties in relation to the proceedings, as required by s 117(2A) of the Family Law Act 1975 (Cth). The court concluded that the appellant’s failure to comply with previous orders did not necessitate the appeal proceedings. Given the limited success of the respondent in the appeal, the court found it appropriate to order the respondent to pay the appellant's costs.

The court ultimately determined that while both parties faced financial constraints, the respondent had the capacity to meet the costs sought by the appellant. The court found that making an order for costs would impose financial hardship on the respondent, but the failure to make such an order would impose similar hardship on the appellant. The court considered the financial situation of both parties and the limited success of the respondent in the appeal, ultimately deciding that the respondent should bear the appellant's costs. The court ordered the respondent to pay the appellant's costs of and incidental to the appeal, including the costs associated with the appellant's application for costs, subject to assessment if not agreed.

The court granted the appellant leave to rely on the submissions filed on 27 July 2017 and dismissed the application in an appeal filed on 16 August 2017. The court allowed the application in an appeal filed on 27 July 2017 and ordered the respondent to pay the appellant's costs of and incidental to the appeal, including the costs associated with the appellant’s application for costs. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The appellant have leave to rely upon the submissions filed 27 July 2017.

2.

The Application in an Appeal filed 16 August 2017 be otherwise dismissed.

3.

The Application in an Appeal filed 27 July 2017 be allowed.

4.

The respondent pay the appellant’s costs of and incidental to the appeal, such costs to be assessed if not agreed.

5.

The costs payable pursuant to Order (4) shall include the costs associated with the appellant’s application for costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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