ZHOU & MEI - [2020] FamCA 1116

FAMILY COURT OF AUSTRALIA

ZHOU & MEI

[2020] FamCA 1116

FAMILY LAW – COSTS – Where application was made by the husband’s mother, who was a party to the proceedings, seeking a costs order that the wife pay her cost of and incidental to the Initiating Application filed by the wife on 19 September 2017 on a party/party basis in the sum of about $213,000 – Where costs were awarded in a fixed sum

Family Law Act 1975 (Cth) s 117

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & Ors [2005] FamCA 158
Cachia v Hanes (1994) 179 CLR 403
Pearson v Pearson [2020]FamCA 329

APPLICANT:

Ms Zhou

RESPONDENTS:

Ms Mei

FILE NUMBER:

SYC

2897

2017

DATE DELIVERED:

14 October 2020

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

14 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Stenhouse

SOLICITOR FOR THE APPLICANT:

Du & Associate Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

The respondent, Ms Mei shall, within ninety (90) days from the date of this order, pay to the applicant, Ms Zhou, the sum of $170,000 by way of party/party costs in these proceedings.

IT IS DIRECTED

Interest shall accrue on such costs orders in accordance with the Rules under the Family Law Act1975 (Cth) as and from ninety (90) days from the date of this order, unless such costs are paid.
A copy of the reasons for these orders be taken out, settled and placed on the Court file.

IT IS NOTED

These costs include the costs of the costs application.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhou & Mei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 2897 of 2017

MS ZHOU

Applicant

And

MS MEI

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

Ms Mei (‘the wife’) and Mr Yao (‘the husband’) and Ms Zhou, (‘the husband’s mother’), were involved in proceedings in the Family Court (‘the substantive proceedings’), which were heard by me on 6, 7, 8 and 9 April 2020, and where I published Reasons for Judgment (‘the Reasons’) on 8 July 2020 and made orders. Those Reasons and the orders that flowed from them were before me today in a costs application by the husband for an order that the wife pay his costs…

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 ZHOU & MEI

Details

AGLC: ZHOU & MEI [2020] FamCA 1116
Case: [2020] FamCA 1116
Decision Date

CaseChat Overview and Summary

In *Zhou & Mei* [2020] FamCA 1116, the Family Court of Australia considered a costs application made by the husband's mother, Ms Zhou, who sought an order that the wife, Ms Mei, pay her costs of and incidental to the wife's Initiating Application filed on 19 September 2017. The proceedings involved Ms Mei, her husband Mr Yao, and Mr Yao's mother, Ms Zhou. The substantive proceedings had concluded, and this matter concerned the costs associated with the wife's initial application.

The court was required to determine two principal questions: first, whether costs orders should be made in favour of Ms Zhou and the husband, and second, whether those costs should be awarded as lump sum payments. The wife, who was unrepresented in these costs proceedings, contended that no costs orders should be made, though she made no specific submissions regarding the lump sum aspect of the orders.

Justice Benjamin noted that the general rule under section 117(1) of the *Family Law Act 1975* (Cth) is that parties bear their own costs, but this is subject to the court's discretion under section 117(2) to make such orders as it considers just, having regard to various factors outlined in section 117(2A). These factors include the financial circumstances of the parties, their conduct in the proceedings, and whether any party was wholly unsuccessful. The court emphasised that no single factor is paramount and that any one factor can be sufficient grounds for making a costs order. The court also considered the distinction between different types of costs orders available under the Act.

The court ordered that Ms Mei pay Ms Zhou the sum of $170,000 by way of party/party costs within ninety days of the order. Interest was to accrue on this sum if not paid within that period. These costs were to include the costs of the costs application itself, and the court found it reasonable to engage counsel for the costs application pursuant to Rule 19.50 of the *Family Law Rules 2004* (Cth).

Orders