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In the Family Court, Mr Adamo was recently refused the opportunity to seek leave to appeal a decision to have an expert witness appointed for their property settlement. The Court considered costs for his unsuccessful application where his wife was made to pay. The Court allowed the costs order to be made but refused to order the full $7,605 sought due to the failure to properly itemise the invoice seeking those costs.
The Background:
In prior proceedings before the Full Court on 7 July 2020, the husband Mr Adamo applied for an interlocutory order to call an expert witness (his brother) for the purpose of property settlement. This application was rejected on the basis that the husband made no effort to find any witness other than his brother to give the evidence he required and that he did not seek his wife’s agreement. The appeal was rejected because the grounds were not sufficient to raise doubt as to the Primary Judge’s decision. The husband and wife were ordered to make submissions in relation to costs for the application for leave to appeal.
The Current Case:
The husband submitted that he opposed the making of a costs order. In doing so, he referred to both the Full Court’s findings in the prior appearance and the primary judge’s reasoning but did not make any reference to costs with respect to the application for leave to appeal.
The wife’s submissions refer to the estimated costs with the inclusion of an increased amount with relation to being ordered to make further submissions in the current proceedings totaling $7,605.
The Full Court referred to s 117(1) of the Family Law Act stating that each party bore the responsibility of their own costs subject to the discretion of the Court in s 117(2A). Having regard to the husband’s ‘wholly unsuccessful’ application for leave to appeal, the Court finds that the wife was to pay additional costs by virtue of that application and as such, warranted the making of an order.
Despite the husband having claimed that he was in an ‘inferior’ financial position and that he was receiving the JobKeeper payment, the Full Court reasoned that financial disparity was irrelevant to the assessment of the making of a costs order and suggested that the husband should have been aware of the risk of this when bringing the appeal.
The Full Court found that despite the wife’s submissions giving details of the costs, no attempt was made to particularise the amount charged against the legal service rendered and neither is there any indication whether the claimed costs were on a party/party or solicitor/client basis. Finally and most potently, no attempt had been made to align the claimed costs with Sch 3 to the Family Law Rules. The Court assessed the costs order should amount to $3,000 as opposed to the previously proposed $7,605.
This post was written by Jordan West who is a law student at the University of Wollongong and he is currently a student intern at Kirkman Family Law and FamilyProperty through the TLF Connect program.
Jordan is interested in Family Law, International Law, Legal Tech, and Smart Goals.
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