Sinha and Sinha and Ors

Case [2015] FamCA 109


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)
Federal Proceedings (Costs) Act 1981 (Cth)
Legal Aid Commission Act 1979 (NSW)

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:

  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.

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

  1. 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.

  2. 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

In *Sinha and Sinha and Ors*, Kent J of the Federal Circuit and Family Court of Australia considered an application by the mother for leave to file her costs application out of time, and the substantive issue of costs in family law proceedings. The father and paternal grandparents were involved in the dispute concerning the mother's costs.

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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