Wrensted & Eades

Case [2016] FamCAFC 46

FAMILY COURT OF AUSTRALIA

WRENSTED & EADES [2016] FamCAFC 46

FAMILY LAW – APPEAL – COSTS – Where the appellant’s pre-trial conduct plainly justified an order for costs in favour of the respondent – Where there was no failure by the trial judge to abide by the principles in Div 12A of Part VIII of the Family Law Act 1975 (Cth) in considering the appellant’s pre-trial conduct – Where it was proper for the trial judge to take into account that the appellant was wholly unsuccessful when making an order for costs in favour of the respondent – Where there was no error in the trial judge considering the respondent’s offer to settle in circumstances where it could not be said that such an offer was unreasonable – Where to apply a distinction between categories of family law cases in exercising the wide discretion to order costs would place a fetter on that discretion which has no legislative basis – Where to the extent that the majority in Hawkins & Roe [2012] FamCAFC 77 suggests that certain features need to be present in a parenting dispute (as distinct for example from a property dispute) before a costs order can be made, this court respectfully disagrees – Where the trial judge was justified in making an order for costs against the appellant extending to the entirety of the proceedings – Where the trial judge’s decision was not unreasonable or plainly unjust – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where there were plainly circumstances justifying an order for costs – Where the appellant was wholly unsuccessful – Costs granted.
Family Law Act 1975 (Cth) – Part VII, Div 12A
F Firm & Ruane and Ors (2014) FLC 93-611
Gett & Tabet (2009) ALR 504
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
Hawkins & Roe [2012] FamCAFC 77
Nguyen v Nguyen 169 CLR 245
Rice and Asplund (1979) FLC 90-725
APPELLANT: Mr Wrensted
RESPONDENT: Ms Eades
FILE NUMBER: PTW 3045 of 2012
APPEAL NUMBER: WA 26 of 2014
DATE DELIVERED: 4 April 2016
PLACE DELIVERED: Adelaide
PLACE HEARD: Perth
JUDGMENT OF: Bryant CJ, Finn & Strickland JJ
HEARING DATE: 26 October 2015
LOWER COURT JURISDICTION: Family Court of Western Australia
LOWER COURT JUDGMENT DATE: 26 September 2014
LOWER COURT MNC: [2014] FCWA 64

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Berry SC
SOLICITOR FOR THE APPELLANT: Bannerman Solicitors
COUNSEL FOR THE RESPONDENT: Mr Hedges
SOLICITOR FOR THE RESPONDENT: Cullen Babington Macleod

Orders

Order made on 26 October 2015

  1. The father have leave to amend Ground 5 of his amended grounds of appeal.

Orders made 4 April 2016

  1. The appeal be dismissed.

  2. The father pay the mother’s costs of and incidental to the appeal, such costs in default of agreement to be as assessed on a party/party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wrensted & Eades has been approved by the Chief Justice pursuant to s 121(9)(g)…

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Wrensted & Eades [2016] FamCAFC 46
Case
[2016] FamCAFC 46
Decision Date

CaseChat Overview and Summary

The case of Wrensted & Eades involved an appeal against a costs order in a family law matter. The appellant, the father, sought to appeal a decision by the trial judge to award costs to the respondent, the mother, following a parenting dispute. The trial judge's order for costs was based on the appellant's pre-trial conduct, which was deemed unreasonable and unjustified. The appeal was heard in the Family Court of Australia.

The central legal issue before the court was whether the trial judge correctly exercised their discretion to order costs against the appellant. This involved examining whether the trial judge appropriately considered the appellant's conduct, the failure to settle, and whether a distinction should be made between different types of family law cases when determining costs. The court also needed to determine if there was any error in the trial judge's assessment of the mother's offer to settle, and if the costs order was reasonable given the appellant's complete lack of success.

The court found that the trial judge had correctly exercised their discretion in ordering costs against the appellant. The pre-trial conduct of the appellant was found to be unreasonable and justified the costs order. The court disagreed with the suggestion that certain features must be present in a parenting dispute before a costs order can be made, as this would unnecessarily restrict the trial judge's discretion. The court concluded that the trial judge's order was not unreasonable or plainly unjust and dismissed the appeal.

The final orders of the court included dismissing the father's appeal and requiring him to pay the mother's costs of the appeal. These costs were to be assessed on a party/party basis if the parties could not agree on the amount. The court also granted the father leave to amend Ground 5 of his amended grounds of appeal.

Orders

Orders of the court

Order made on 26 October 2015

1.

The father have leave to amend Ground 5 of his amended grounds of appeal.

Orders made 4 April 2016

2.

The appeal be dismissed.

3.

The father pay the mother’s costs of and incidental to the appeal, such costs in default of agreement to be as assessed on a party/party basis.

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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