Abbott & Vastano (No 2)

[2023] FedCFamC1A 5

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Abbott & Vastano (No 2) [2023] FedCFamC1A 5 

Appeal from:	Abbott & Vastano [2022] FedCFamC2F 1284
Appeal number(s):	NAA 212 of 2022
File number(s):	NCC 1968 of 2020
Judgment of:	TREE J
Date of judgment:	24 January 2023
Catchwords:	FAMILY LAW – APPEAL – COSTS – Where the husband’s appeal from final property settlement orders was dismissed – Where the parties were given an opportunity to file further material on the question of costs – Where the wife seeks her costs of the appeal as set out in her schedule of costs – Where the husband seeks each party bears their own costs – Where the appeal was wholly unsuccessful – Financial circumstances – Where the husband is ordered to pay the wife’s costs in the sum claimed by her.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Abbott & Vastano (2022) FLC 94-125; [2022] FedCFamC1A 222
Number of paragraphs:	7
Date of last submissions:	11 January 2023
Date of hearing:	Determined on the papers
Place:	In Chambers
Counsel for the Appellant:	Mr Gallimore
Solicitor for the Appellant:	Turnbull Hill Lawyers
Counsel for the Respondent:	Mr Rugendyke
Solicitor for the Respondent:	East Coast Law

ORDERS

NAA 212 of 2022
NCC 1968 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ABBOTT

Appellant

AND:

MS VASTANO

Respondent

order made by:	TREE J
DATE OF ORDER:	24 January 2023

THE COURT ORDERS THAT:

1.Within 28 days, the husband is to pay the wife’s costs of the appeal in the sum of $10,345.92.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abbott & Vastano (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

introduction

1. On 21 December 2022, for reasons then delivered, I dismissed the appellant husband’s appeal from final property settlement orders made by the primary judge on 29 August 2022 (Abbott & Vastano (2022) FLC 94-125). In the event the appeal failed, the respondent wife sought that her costs of the appeal be paid by the husband. The husband opposed any order for costs and sought the opportunity to put on further evidence of offers made between the parties. I therefore ordered the parties to file any further material by no later than 25 January 2023, after which my decision in relation to costs would be reserved.

2. On 11 January 2023, the parties submitted a short joint submission outlining their respective positions in relation to costs. There was no evidence as to any offers filed as foreshadowed by the husband. The wife seeks her costs from the husband as set out in her schedule of costs in the sum of $10,345.92. The husband opposes any costs order and seeks for each party to bear their own costs pursuant to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”).

3. For the reasons that follow, the husband will be ordered to pay the wife’s costs as claimed within 28 days.

   consideration

4. Whilst the default position established by s 117(1) of the Act is that each party should bear their own costs, s 117(2) permits a court to make such costs order as it considers just if there are circumstances which justify doing so. Section 117(2A) then lists considerations which the court must have regard to in determining whether to make a costs order.

5. The wife relies upon the husband being wholly unsuccessful in his appeal for the basis of her costs application. As submitted at the hearing of the appeal, she also relies upon the financial circumstances of the parties, and notably, the husband’s higher income.

6. For his part, the husband submitted he would oppose any costs order on the basis that the appeal was not a hopeless one (even if it failed), and in view of the significantly favourable result achieved by the wife at trial.

7. I am satisfied that the husband’s significantly higher income and the complete failure of his appeal are sufficient, in the circumstances of this case, to justify an order for costs in the wife’s favour, in the sum claimed by her. Those costs should be payable within 28 days.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       24 January 2023