Penfold v Penfold [1980] HCA 4

Penfold v Penfold [1980] HCA 4

The primary judge's statement that the order was not made under s. 117 (2) was properly understood as a mistaken reference to reg. 173, because his reference to reg. 173 showed he regarded s. 117 (2) as the source of his authority. The Full Court therefore erred in treating him as having acted on another principle. Section 117 (2) did not require specification of the justifying circumstances, and the respondent's inadequate financial statement and the need for the appellant to establish his true financial position, together with the orders obtained or effectively obtained, provided ample material justifying the costs order.

Jurisdiction
Australia
Procedural Posture
Family Law Costs Appeal / Appeal by Special Leave to the High Court of Australia From an Order of the Full Court of the Family Court
Outcome
Appeal allowed.
Legal Topics
['costs in Proceedings Under the Family Law Act 1975' 'discretion to Award Costs' 'child Maintenance' 'financial Disclosure']
['family Law' 'civil Procedure'] ['costs in Proceedings Under the Family Law Act 1975' 'discretion to Award Costs' 'child Maintenance' 'financial Disclosure']

Case Brief

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Procedural Posture

Family Law Costs Appeal / Appeal by Special Leave to the High Court of Australia From an Order of the Full Court of the Family Court

Legal Issues

  1. 1 ['Whether the Full Court of the Family Court was mistaken in concluding that the primary judge disclaimed s. 117 (2) of the Family Law Act 1975 as the source of power to award costs.' 'Whether s. 117 (2) required the primary judge to specify the particular circumstances justifying a costs order.' "Whether there were circumstances justifying the order that the respondent pay the appellant's costs."]

Ratio Decidendi

The primary judge's statement that the order was not made under s. 117 (2) was properly understood as a mistaken reference to reg. 173, because his reference to reg. 173 showed he regarded s. 117 (2) as the source of his authority. The Full Court therefore erred in treating him as having acted on another principle. Section 117 (2) did not require specification of the justifying circumstances, and the respondent's inadequate financial statement and the need for the appellant to establish his true financial position, together with the orders obtained or effectively obtained, provided ample material justifying the costs order.

Court Disposition

Appeal allowed.

Orders

  • ['Order of the Full Court of the Family Court set aside.' 'Order for costs made by the Supreme Court of New South Wales restored.' "Respondent to pay appellant's costs of the appeal to the Full Court of the Family Court and of the appeal to this Court."]