Szalai & Szalai - [2024] FedCFamC1A 28

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 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).
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…

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.

Keep reading for free

Create a free CaseChat account to read Szalai & Szalai and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FedCFamC1A 28
Decision Date: 13 March 2024

CaseChat Overview and Summary

Mr Szalai sought a review of the appeal registrar's decision that he pay $500 in costs to the Independent Children's Lawyer ("ICL") for his unsuccessful application to extend time to appeal certain orders made by the court. The ICL opposed the review application but only sought the $500 in costs that the appeal registrar had ordered. The review application was heard in open court in the applicant's absence, but he did not attend. The Court found that the applicant would suffer financial hardship if required to pay any proportion of the ICL's costs. The applicant had been recently hospitalised due to a motor accident and was in debt. The appeal registrar's order that the applicant pay the ICL's costs was discharged, and the ICL's application for costs against the applicant was dismissed.

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

These reasons explain the grant of an application to review a single order made by the appeal registrar on 14 February 2024.Background On 8 September 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) to finalise a cause of action between the parties in respect of their children. The time limit for any appeal from those orders expired on 6 October 2023. On 21 December 2023, the applicant applied for an extension of time within which to appeal, but the application was dismissed by the appeal registrar on 14 February 2024. In addition to dismissing the extension application, the appeal registrar ordered the applicant to pay costs of $500 to the Independent Children’s Lawyer (“the ICL”). On 29 February 2024, the applicant filed an application to review only the costs order. No issue is taken with the refusal to extend time within which the applicant could appeal from the orders made in September 2023.Review The review application entails the de novo hearing of the ICL’s application for costs arising out of the dismissal of the applicant’s application to extend time within which to appeal. The applicant indicated that he wanted the review application determined in the parties’ absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), but the review application was instead listed for hearing in open court to ensure the applicant was afforded every opportunity to vindicate his review application. He informed the Court he would not attend the hearing and did not. The ICL appeared to oppose the review application and to renew her costs application, but only for the sum of $500 as ordered by the registrar – not for the greater amount of $2,030 she originally sought. She abandoned her application for her costs of the review hearing. The applicant relies upon his affidavit filed on 29 February 2024 as evidence in support of the review application. The affidavit establishes that he owes a bank credit card debt of $32,573.27. Although the applicant alleges he suffers financial hardship, there is no other direct evidence of his income, assets and liabilities. The appeal registrar said this in relation to the costs decision:63.The [ICL] seeks that the [applicant] pay their costs of ‘$1980 on account of legal work and $50 on account of disbursements’ detailed in a schedule of the costs filed 12 February 2024. 64.The [applicant] opposes any order for costs and submits the [ICL] should not be a party to the proceedings. This is not a valid submission. 65.The [applicant] also submits that has debts and cannot afford to pay an order for costs.…68.The [applicant] has been wholly unsuccessful in this application and the [ICL] has been put to cost responding to the unsuccessful application.69.I also take into consideration that the [ICL] is funded by the legal aid authority through Commonwealth funding. 70.There is little evidence of the financial position of the [applicant]. The [applicant] submits that he is working but has debts he is trying to pay. …72.I am satisfied there are justifying circumstances for making an order for costs.73.I am satisfied the costs are sought within the relevant scale. … …76.Having regard to the scale of costs prescribed by the Rules, and the matters detailed above, I consider it appropriate to order payment of costs fixed at $500.77.No time for payment was addressed in submissions. I consider a period of three months is appropriate.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	13 MARCH 2024