STEPHENS & STEPHENS AND ANOR (Enforcement) (Costs)
[2010] FamCAFC 172
FAMILY LAW - COSTS – Application on behalf of the Wife that the Husband pay the costs of the appeal – Consideration of the Husband’s financial circumstances and conduct during the proceedings – Significant weight given to the appeal being wholly unsuccessful – Where the Husband has failed to comply with previous orders of the court – Justifying circumstances established – Appellant to pay the Respondent’s costs
FAMILY LAW - INDEMNITY COSTS – Where the Wife seeks an order for indemnity costs – Where the Court is not satisfied that the Husband’s appeal and his defence of the Wife’s appeal was hopeless and did not give rise to any “arguable factual and legal questions” – Application for indemnity costs dismissed
Family Law Act 1975 (Cth) – s 70NFB(1), s 79, s 106B, s 117, s 117(2A), s 117AA, s 117AB, s 117AC, s 117B, s 118 Family Law Rules 2004 (Cth) – r 19.08, r 19.11, r 19.18, r 19.19
[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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AGLC
Stephens v Stephens [2010] FamCAFC 172
Case
[2010] FamCAFC 172
Decision Date
CaseChat Overview and Summary
In Stephens v Stephens, the wife brought an application for the husband to pay her costs associated with the appeal and various other related applications. The case involved numerous applications and appeals, including applications for leave to appeal, extensions of time, and applications to adduce further evidence. The wife also filed a cross appeal. The court considered the husband's financial circumstances and his conduct during the proceedings, ultimately finding that the appeal was wholly unsuccessful and that the husband had failed to comply with previous court orders. The court granted the wife's application for costs, ordering the husband to pay the wife's costs of the appeal, cross appeal, and related applications.
The court also considered the wife's application for indemnity costs. Indemnity costs are awarded where the opposing party's appeal or defence was hopeless and did not give rise to any arguable factual or legal questions. The court found that the husband's appeal and defence of the wife's appeal did not meet this threshold, and the application for indemnity costs was dismissed.
The court ordered the husband to pay the wife's costs of the appeal, cross appeal, and related applications, with the costs to be assessed on a party and party basis. The court also noted that any funds retained by the husband's legal representatives could be applied towards satisfaction of the husband's obligations under the order. The wife's application for indemnity costs was dismissed.
This case highlights the importance of financial circumstances and conduct during proceedings in determining costs orders in family law cases. The court found that the husband's unsuccessful appeal and non-compliance with previous orders justified an order for costs, but the wife's application for indemnity costs was dismissed as the husband's appeal and defence did not meet the threshold for such an order.
Orders
Orders of the court
1.
The Husband pay the Wife’s costs of and incidental to:
(a) the Husband’s notice of appeal filed on 27 March 2009;
(b) the Husband’s application for a stay filed on 27 March 2009;
(c) the Husband’s application filed on 27 March 2009 to extend time to file an application for leave to appeal against the orders of Watts J made on 1 February 2009, and to extend time to file an application for leave to appeal against the orders of Cronin J made on 2 February 2009;
(d) the Husband’s application to adduce further evidence filed on 30 March 2009;
(e) the Husband’s application to adduce further evidence filed on 9 November 2009;
(f) the Husband’s oral application made on 4 December 2009 seeking to reopen the hearing of the appeal;
(g) the Wife’s cross appeal filed on 9 April 2009; and
(h) the Wife’s application to adduce further evidence filed on 21 May 2009.
2.
The Husband pay the Wife’s costs of the submissions prepared and filed on 21 January 2010 and 19 March 2010 in relation to costs.
3.
The costs in orders (1) and (2) hereof be assessed on a party and party basis.
4.
To the extent that there are sufficient funds still retained by Kennedy Wisewoulds Lawyers as stakeholders, such funds may be applied towards satisfaction of the obligations of the Husband pursuant to orders (1) and (2) hereof.