Sawer and Hugh (Costs) - [2011] FamCAFC 165

FAMILY COURT OF AUSTRALIA

SAWER & HUGH (COSTS)

[2011] FamCAFC 165

FAMILY LAW - APPLICATION IN AN APPEAL – COSTS – where the appeal was deemed abandoned after the father failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) –where the application to reinstate and the Notice of Appeal were formally dismissed – where the father was wholly unsuccessful in the proceedings - where the father’s alleged impecuniosity should not prevent an order for costs being made – where the father is to pay the mother’s costs fixed in the sum of $3,300 and the Independent Children’s Lawyer’s costs fixed in the sum of $962.50 within three months.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 22.13

APPELLANT:

Mr Sawer

RESPONDENT:	Ms Hugh
INDEPENDENT CHILDREN’S LAWYER	Mr Walker

FILE NUMBER:

LNC

511

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

16 August 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 March 2010

LOWER COURT MNC:

[2010] FamCA 290

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Lewis

SOLICITOR FOR THE RESPONDENT:

Levis Stace & Cooper

COUNSEL FOR THE ICL

Mr Walker

SOLICITOR FOR THE ICL

David Walker & Co

Orders

Within three [3] months of the date hereof the father pay the mother’s costs of and incidental to the application in an appeal fixed in the sum of three thousand three hundred dollars [$3,300].
Within three [3] months of the date hereof the father pay the costs of the Independent Children’s Lawyer of and incidental to the application in an appeal fixed in the sum of nine hundred and sixty-two dollars and fifty cents [$962.50].

IT IS NOTED that publication of this judgment under the pseudonym Sawer & Hugh (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

Appeal Number: SA 24 of 2010
File Number: LNC 511 of 2008

MR SAWER

Appellant

And

MS HUGH

Respondent

REASONS FOR JUDGMENT

Introduction

On 17 May 2011, for reasons which I then published, the father’s application in an appeal seeking an order reinstating his Notice of Appeal was dismissed.
The Notice of Appeal which had been filed on 14 April 2010 was deemed abandoned because the father had failed to file a draft appeal index within the prescribed time under the Family Law Rules 2004 (Cth).
As part of the orders that I made on 17 May 2011 I provided a regime for the filing of written submissions in relation to costs.
On 6 June 2011 the mother filed submissions seeking her costs of the application in an appeal. The amount she sought was $3,654.60 calculated on the Family Law Scale.
On 8 June 2011…

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: [2011] FamCAFC 165
Decision Date: 16 August 2011

CaseChat Overview and Summary

The matter of Sawer and Hugh was heard before the Family Court of Australia, with the father, the respondent, appealing the decision of the primary judge regarding the costs of an appeal. The dispute centred on the apportionment of costs between the parties following the resolution of a matter concerning their children. The mother sought to recover costs from the father for the Independent Children's Lawyer, in addition to her own legal expenses. The father contested the costs, arguing they were excessive and not justified by the nature of the proceedings. The court was tasked with determining whether the costs claimed were reasonable and necessary, and if so, whether the father should be ordered to pay them.

The legal issues before the court involved the assessment of the costs incurred during the appeal, the principles governing the allocation of costs between parties in family law matters, and whether the costs claimed by the mother and the Independent Children's Lawyer were reasonable and necessary. The court had to consider the complexity and duration of the appeal, the outcomes achieved, and the overall fairness in the division of costs. The father's appeal was grounded on the argument that the costs claimed were disproportionate to the proceedings, while the mother maintained that the costs were justified given the circumstances.

In delivering the judgment, the court examined the principles established in previous case law regarding the apportionment of costs in family law matters. The court considered the necessity and reasonableness of the costs claimed by the mother and the Independent Children's Lawyer, taking into account the complexity of the issues and the outcomes of the appeal. After careful consideration, the court concluded that the costs claimed were reasonable and necessary, and that the father should bear the responsibility for these costs as ordered by the primary judge. The appeal was dismissed, and the father was directed to pay the specified amounts within three months.

Orders

Orders of the court

Within three [3] months of the date hereof the father pay the mother’s costs of and incidental to the application in an appeal fixed in the sum of three thousand three hundred dollars [$3,300].

Within three [3] months of the date hereof the father pay the costs of the Independent Children’s Lawyer of and incidental to the application in an appeal fixed in the sum of nine hundred and sixty-two dollars and fifty cents [$962.50].

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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