Legal Research
Cases
Withers & Russell (No 2)

Withers & Russell (No 2)

Case [2022] FedCFamC1A 197 12 December 2022

Admissibility of Evidence

Family Law

Type to search within this case.

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Withers & Russell (No 2) [2022] FedCFamC1A 197

Appeal from: Withers & Russell (No 2) [2022] FedCFamC1F 488

Withers & Russell [2022] FedCFamC1F 372

Appeal numbers: NAA 139 of 2022

NAA 154 of 2022

File number: CAC 223 of 2015

Judgment of: ALDRIDGE, TREE & WILSON JJ

Date of judgment: 12 December 2022

Catchwords: FAMILY LAW – APPEAL – COSTS – Where the father filed Notices of Discontinuance in the appeals – Where the mother filed an Application in an Appeal seeking that the father pay her costs for both appeals on an indemnity basis – Where the mother did not comply with procedural orders made in respect of her costs application and did not appear at the hearing – The Full Court dismissed the mother’s costs application at the hearing – Where the father made an application for indemnity costs upon the dismissal of the mother’s costs application – Where an indemnity costs order against the mother was not warranted – Order made for the mother to pay the father’s costs on a party/party basis.

Legislation:
Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32(3)(e), 32(3)(f)(ii)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.42

Cases cited:
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548

Hogan and Hogan (1986) FLC 91-704; [1986] FamCA 34

Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178

Medlon & Medlon (No 6)(Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Moy & Pao (2022) FLC 94-073; [2022] FedCFamC1A 17

Number of paragraphs: 16

Date of hearing: 21 November 2022

Place: Sydney

The Applicant: Self-represented litigant (Did not appear)

Counsel for the First Respondent: Mr Mathews

Solicitor for the First Respondent: Unified Lawyers

Solicitor for the Second Respondent: Filed a Submitting Notice on 9 September 2022

Solicitor for the Independent Children’s Lawyer: Filed a Submitting Notice on 9 September 2022
ORDERS

NAA 139 of 2022 NAA 154 of 2022
CAC 223 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS RUSSELL

Applicant

AND:
MR WITHERS

First Respondent

MS RUSSELL SNR

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

ALDRIDGE, TREE & WILSON JJ

DATE OF ORDER:

12 december 2022

ON 21 NOVEMBER 2022 THE COURT ORDERED THAT:
1.The Application in an Appeal filed 16 August 2022 is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $8,652.18 within 28 days.

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…

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.

Continue reading Withers & Russell (No 2)

Details

AGLC: Withers & Russell (No 2) [2022] FedCFamC1A 197
Case: [2022] FedCFamC1A 197
Decision Date

CaseChat Overview and Summary

This appeal concerns an Application in an Appeal filed by Ms Russell ("the mother") against Mr Withers ("the father") seeking that the father pay her costs for both appeals on an indemnity basis. The father filed Notices of Discontinuance in the appeals, and subsequently the mother filed the costs application. The mother did not comply with procedural orders made in respect of her costs application and did not appear at the hearing. The Full Court dismissed the mother's costs application at the hearing, and the father made an application for indemnity costs upon the dismissal of the mother's costs application. The court found that an indemnity costs order against the mother was not warranted, but an order for the mother to pay the father's costs on a party/party basis was appropriate.

The primary issues for the court to decide were whether an order for indemnity costs should be made against the mother, and if not, whether an order for the mother to pay the father's party/party costs was justified. The court considered the relevant legislation, case law and submissions of the parties in reaching its decision. The court found that the mother's failure to comply with procedural orders, and her disengagement from the proceeding, justified an order for the father's party/party costs, but that an indemnity costs order was not warranted as the mother's conduct, while serious, did not amount to exceptional circumstances. The court also noted that the mother, as a legal professional, was taken to be well aware of her obligations as a litigant in this Court.

The court ultimately dismissed the mother's costs application and ordered that she pay the father's costs in the sum of $8,652.18 within 28 days. The court found that the mother's failure to comply with procedural orders, and her disengagement from the proceeding, justified an order for the father's party/party costs. The court also found that an indemnity costs order was not warranted as the mother's conduct, while serious, did not amount to exceptional circumstances. The court considered the relevant legislation, case law and submissions of the parties in reaching its decision.

The final orders of the court were that the Application in an Appeal filed 16 August 2022 is dismissed and that the applicant pay the first respondent's costs in the sum of $8,652.18 within 28 days. The form of the order is subject to the entry in the Court’s records. This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders