FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Szalai & Szalai [2024] FedCFamC1A 28
Appeal from: Szalai & Szalai (No 2) [2023] FedCFamC2F 1709 Appeal number: NAA 355 of 2023 File number: DNC 45 of 2023 Judgment of: AUSTIN J Date of judgment: 13 March 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision that he pay costs of the Independent Children’s Lawyer (“ICL”) incidental to his previous unsuccessful application in an appeal – Where the ICL opposed the review application – Consideration of s 117(4)(b) of the Family Law Act 1975 (Cth) – Where the Court finds the applicant would suffer financial hardship if required to bear any proportion of the ICL’s costs – Where the applicant is in debt – Where the applicant was recently hospitalised due to a motor accident – Where the review application succeeds – Where the ICL’s application for costs against the applicant is dismissed – Where the appeal registrar’s order requiring the applicant to pay the ICL’s costs is discharged. Legislation: Family Law Act 1975 (Cth) Pt VII, s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38
Cases cited: Leigh & Calpin [2023] FedCFamC1A 220 Number of paragraphs: 16 Date of hearing: 13 March 2024 Place: Newcastle (via Microsoft Teams) The Applicant: Litigant in person (did not participate) Solicitor for the Respondent: Duggan Family Lawyers Solicitor for the Independent Children's Lawyer: AFL Withnalls Lawyers ORDERS
NAA 355 of 2023
DNC 45 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SZALAI
Applicant
AND: MS SZALAI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
13 MARCH 2024
THE COURT ORDERS THAT:
1.Order 2 made on 14 February 2024 by the appeal registrar is discharged.
2.The application for costs made by the Independent Children’s Lawyer against the respondent father is dismissed.
3.The Application for Review filed by the respondent father on 29 February 2024 is otherwise dismissed.
4.The Response to an Application in an Appeal filed by the Independent Children’s Lawyer on 8 March 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Szalai & Szalai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These reasons explain the grant of an application to review a single order made by the appeal registrar on 14 February…
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- Case
- [2024] FedCFamC1A 28
- Decision Date
CaseChat Overview and Summary
The Court considered whether it should order the applicant to pay any proportion of the ICL's costs. The applicant had provided an affidavit establishing his financial circumstances but there was no other evidence of his income, assets and liabilities. The appeal registrar found that there were justifying circumstances for making an order for costs. However, the Court found that the applicant would suffer financial hardship if required to pay any proportion of the ICL's costs, particularly given his recent hospitalisation and the fact that he was already in debt. The Court was satisfied that the ICL's costs were within the relevant scale. However, the Court found that the applicant's financial hardship meant that it was not appropriate to require him to pay any proportion of the ICL's costs.
The Court dismissed the appeal registrar's order that the applicant pay $500 in costs to the ICL. The Court also dismissed the ICL's application for costs against the applicant. The Court's decision was based on the applicant's financial hardship and the lack of evidence of his income, assets and liabilities. The Court found that the applicant's financial hardship meant that it was not appropriate to require him to pay any proportion of the ICL's costs. The Court's decision was in line with the principles set out in s 117(4)(b) of the Family Law Act 1975 (Cth). The Court's decision also ensured that the applicant was not placed in a position of financial hardship.
Orders
Orders of the court
NAA 355 of 2023
DNC 45 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR SZALAI
Applicant
AND:
MS SZALAI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
13 MARCH 2024
THE COURT ORDERS THAT:
1. Order 2 made on 14 February 2024 by the appeal registrar is discharged.
2. The application for costs made by the Independent Children’s Lawyer against the respondent father is dismissed.
3. The Application for Review filed by the respondent father on 29 February 2024 is otherwise dismissed.
4. The Response to an Application in an Appeal filed by the Independent Children’s Lawyer on 8 March 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Background
Background to the litigation
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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