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 of 2014

APPEAL NUMBER: EA 150 of 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

1. 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

1. 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.

2. 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.

3. 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).

4. Relevantly for this matter, the applicant’s application for an extension of time was wholly unsuccessful and, as appears from the reasons of 30 January 2019, the hearing of the matter was protracted because it had not been properly prepared (s 117(2A)(e) and (c) of the Act).

5. As my earlier reasons demonstrated, although the applicant’s financial position has not been made completely clear, his financial position does not point against making an order for costs against him (s 117(2A)(a) of the Act).

6. Taking these matters into account, I consider that the applicant should pay the respondent’s costs.

7. The respondent did not file a schedule of her costs so they will have to be assessed if they cannot be agreed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 March 2019

Associate: 

Date:  21 March 2019