FAMILY COURT OF AUSTRALIA
| SINHA & SINHA AND ORS | [2015] FamCA 109 |
| FAMILY LAW – COSTS – Where the father and paternal grandparents instituted and pursued parenting proceedings and subsequently filed Notices of Discontinuance – Where the Mother seeks an order that the father and paternal grandparents pay her costs on an indemnity basis – Where the mother is an undischarged bankrupt – Where a portion of the legal fees the mother is seeking to have paid forms part of the debts that have been discharged by the bankruptcy – Where the mother has received confirmation from the Official Trustee in Bankruptcy that she will be entitled to retain any costs award – Where the mother was in receipt of legal aid funding for a portion of the proceedings for which she is claiming indemnity costs |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Cachia v Hanes (1994) 179 CLR 403 Kohan & Kohan (1993) FLC 92-340 McAlpin and McAlpin (1993) FLC 92-411 Nada & Nettle (Costs) (2014) FLC 93-612 Penfold v Penfold (1980) 144 CLR 311 Prantage & Prantage (2013) FLC 93-544 Stoian & Fiening(Costs) [2014] FamCA 944 |
| APPLICANT: | Ms N Sinha |
| FIRST RESPONDENT: | Mr S Sinha |
| SECOND RESPONDENT: | Ms H Sinha |
| THIRD RESPONDENT: | Mr L Sinha |
| FILE NUMBER: | BRC | 6156 | of | 2012 |
| DATE DELIVERED: | 27 February 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | By way of written submissions filed 13 October 2014; 7 and 21 November 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Coffs Coast Family Law |
| SOLICITOR FOR THE RESPONDENTS: | Robson & Oliver Solicitors |
Orders
It is ordered that:
Leave be granted to the mother to file her costs application out of time.
The father and the paternal grandparents are jointly and severally liable to pay the mother’s paid costs of the substantive proceedings which were not met by any legal aid commission (but not including the amount of $22,594 or any part of that sum “written off” in the mother’s bankruptcy) such costs to be agreed or, failing agreement, to be assessed on a party and party basis.
There be no order as to costs of this application.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sinha & Sinha and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 6156 of 2012
| Ms N Sinha |
Applicant
And
| Mr S Sinha |
First Respondent
And
Ms H Sinha
Second Respondent
And
Mr L Sinha
Third Respondent
REASONS FOR JUDGMENT
On 10 July 2012 the paternal grandparents, Mr S Sinha and Ms H Kaur Sinha, and the father, Mr L Sinha, initiated parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in the then Federal Magistrates Court against the mother, Ms N Sinha.
Those proceedings were subsequently transferred…
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- Sinha and Sinha and Ors [2015] FamCA 109
- Case
- [2015] FamCA 109
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether to grant the mother leave to file her costs application after the prescribed time limit had expired. A further issue was the extent of the father and paternal grandparents' liability for the mother's costs of the substantive proceedings, specifically in relation to costs that had been "written off" due to the mother's bankruptcy.
Kent J granted the mother leave to file her costs application out of time. The court ordered that the father and paternal grandparents be jointly and severally liable for the mother's paid costs of the substantive proceedings, excluding any amount written off in her bankruptcy. These costs were to be agreed between the parties or, failing agreement, assessed on a party and party basis. There was no order made as to the costs of the application itself.
Orders
Orders of the court
It is ordered that:
1.
Leave be granted to the mother to file her costs application out of time.
2.
The father and the paternal grandparents are jointly and severally liable to pay the mother’s paid costs of the substantive proceedings which were not met by any legal aid commission (but not including the amount of $22,594 or any part of that sum “written off” in the mother’s bankruptcy) such costs to be agreed or, failing agreement, to be assessed on a party and party basis.
3.
There be no order as to costs of this application.
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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