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.
The father have leave to amend Ground 5 of his amended grounds of appeal.
Orders made 4 April 2016
The appeal be dismissed.
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)…
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.
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AGLC
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.