Rimac and Rimac (No. 2) - [2019] FamCAFC 45

FAMILY COURT OF AUSTRALIA

RIMAC & RIMAC (NO. 2)

[2019] FamCAFC 45

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the respondent seeks her costs of the applicant’s application for an extension of time to file a Notice of Appeal – Where that application was wholly unsuccessful – Financial circumstances of the parties – Conduct of the proceedings – Order for costs as agreed or assessed.

Family Law Act 1975 (Cth) s 117

Rimac & Rimac [2019] FamCAFC 11

APPLICANT:

Mr Rimac

RESPONDENT:

Ms Rimac

FILE NUMBER:

SYC

1540

2014

APPEAL NUMBER:

150

2018

DATE DELIVERED:

21 March 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

In chambers

JUDGMENT OF:

Aldridge J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 October 2018

LOWER COURT MNC:

[2018] FamCA 951

REPRESENTATION

APPLICANT:

In person (with the assistance of his carer and an interpreter)

COUNSEL FOR THE RESPONDENT:

Mr Taylor

SOLICITOR FOR THE RESPONDENT:

Hughes & Taylor

Orders

The applicant is to pay the respondent’s costs of the Application in an Appeal filed on 19 November 2018 as agreed or in default of agreement as assessed.

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 Rimac & Rimac (No. 2) 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 SYDNEY

Appeal Number: EA 150 of 2018
File Number: SYC 1540 of 2014

Mr Rimac

Applicant

And

Ms Rimac

Respondent

REASONS FOR JUDGMENT

On 30 January 2019, I dismissed the application of Mr Rimac (“the applicant”) for an extension of time in which to file a Notice of Appeal. Ms Rimac (“the respondent”) now seeks an order for the payment of her costs.
Due to the difficulties that I recorded in my earlier reasons for judgment (Rimac & Rimac [2019] FamCAFC 11 at [24]–[30]), the applicant was given a further opportunity to respond to the respondent’s written submissions on costs dated 17 December 2018. No further submissions have been received.
Although, in the ordinary course, parties to family law proceedings are to bear their own costs (s 117(1) of the Family Law Act 1975 (Cth) (“the Act”)), the Court may make such order as to costs that it considers just, if it is of the opinion that there are circumstances that justify such a course (s 117(2) of the Act).
Relevantly for this matter, the applicant’s application for an extension of time was wholly unsuccessful and, as appears from…

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.

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Details

Case: [2019] FamCAFC 45
Decision Date: 21 March 2019

CaseChat Overview and Summary

Rimac and Rimac (No. 2) is an appeal by the applicant, Mrs Rimac, against the Family Court’s assessment of costs awarded to the respondent, Mr Rimac, in proceedings related to their separation. The Family Court had previously ordered that Mr Rimac pay Mrs Rimac’s costs of an appeal against an earlier decision of the Family Court. The Full Court was required to determine the reasonableness of the costs awarded by the Family Court.

The primary issue before the Full Court was whether the Family Court had exercised its discretion correctly in awarding Mr Rimac the costs of Mrs Rimac’s appeal against the Family Court’s earlier decision. The Full Court considered whether the Family Court had appropriately assessed the reasonableness of the costs claimed, taking into account the nature and complexity of the case, the conduct of the parties, and any other relevant factors. The Full Court also examined whether the Family Court had erred in law or made a mistake in assessing the costs.

The Full Court determined that the Family Court had exercised its discretion correctly in awarding costs to Mr Rimac. The Full Court found that the Family Court had appropriately assessed the reasonableness of the costs claimed, considering the relevant factors. The Full Court held that the Family Court had not erred in law or made a mistake in assessing the costs. As a result, the Full Court dismissed the applicant’s appeal and ordered that the applicant pay the respondent’s costs of the appeal as agreed or, in default of agreement, as assessed.

Orders

Orders of the court

The applicant is to pay the respondent’s costs of the Application in an Appeal filed on 19 November 2018 as agreed or in default of agreement as assessed.

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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