Adamo & Vinci (No. 2)

[2020] FamCAFC 229

FAMILY COURT OF AUSTRALIA

ADAMO & VINCI (NO. 2) [2020] FamCAFC 229

FAMILY LAW – APPEAL – COSTS – Written submissions as to the issue of costs – Where the applicant husband was wholly unsuccessful on his application for leave to appeal – Where the respondent wife was put to the expense of responding to and opposing the husband’s application – Costs not particularised – Financial disparity – Quantum of costs – Husband to pay the wife’s costs of and incidental to the application for leave to appeal in a fixed sum.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) Sch 3

Adamo & Vinci [2020] FamCAFC 208

APPLICANT: Mr Adamo

RESPONDENT: Ms Vinci

INDEPENDENT CHILDREN’S LAWYER: Stidwill Solicitors

FILE NUMBER: SYC 3598 of 2018

APPEAL NUMBER: EAA 100 of 2020

DATE DELIVERED: 11 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: In Chambers

JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE: Heard by way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 7 July 2020

LOWER COURT MNC: [2020] FamCA 537

REPRESENTATION:

THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Alidenes & Co Solicitor

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Stidwill Solicitors (not participating)

Order

1. The applicant husband pay the respondent wife’s costs of and incidental to the application for leave to appeal fixed in the sum of $3,000 within twenty-eight (28) days of the date of these orders.

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 Adamo & Vinci (No. 2) 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 100 of 2020
File Number: SYC 3598 of 2018

Mr Adamo

Applicant

And

Ms Vinci

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 25 August 2020, the Full Court in Chambers refused leave to Mr Adamo (“the husband”) to appeal an order made by a judge of the Family Court on 7 July 2020 dismissing an application for permission to call an expert witness brought by him as part of pending property settlement and parenting proceedings between himself and Ms Vinci (“the wife”) (Adamo & Vinci [2020] FamCAFC 208).

2. In her responding submissions on the issue of leave to appeal filed on 21 August 2020, the wife sought an order for costs in her favour if the husband’s application for leave to appeal was refused.

3. The husband’s submissions on the issue of leave to appeal did not address the question of costs and thus each party was directed to make short written submissions on the point.

Should a costs order be made?

1. The husband opposes the making of an order for costs.  Reference was made to the reasons of the Full Court refusing leave to appeal and the husband makes submissions which seem to traverse the Full Court’s findings or speculate about the primary judge’s reasoning and which appear to have little to do with the issue to be decided here, namely whether he ought to pay the costs of the application for leave to appeal.  However, the husband’s position is essentially that this is not an appropriate matter in which there should be a costs order made as between the parties.

2. Costs in Family Court matters are governed by s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) which sets out the principle that each party should be responsible for his or her own costs. However, where the Court is of the view that circumstances justify the making of a costs order, then such an order may be made taking into account the relevant matters contained within s 117(2A) of the Act.

3. Of those sections, s 117(2A)(e) obtains – the husband’s application was wholly unsuccessful. He sought to challenge an interlocutory order of the primary judge on appeal and failed to obtain leave to appeal. The wife was therefore put to expense in responding to and opposing the application for leave.

4. In our opinion that fact, of itself, warrants the making of a costs order.

The wife’s claim

1. The prayer for costs in the wife’s response to the application for leave to appeal was supported by a single page document in which the costs claimed are said to be $6,725, which includes GST and a sum of $1,500 (also inclusive of GST) for estimated counsel’s fees.

2. In her further written submissions as to costs filed on 3 September 2020, the wife seeks to increase the amount of her claim to include her costs of making the further submissions, bringing the amount claimed to $7,605 inclusive of GST.

3. As to the increase the wife says:

   5.… In the event that a costs order is made then the [husband] should also be ordered to pay the costs of and incidental to the costs proceedings and GST in the sum of $880.00 bringing the total to $7,605.00.

   (Wife’s Submissions in Reply filed on 3 September 2020) (Emphasis in original)

4. It must be observed that no attempt was made to particularise the amount charged against the legal service rendered and neither is there any indication whether the claimed costs are on a party/party or solicitor/client basis.

5. Finally and most potently, no attempt has been made to align the claimed costs with Sch 3 to the Family Law Rules 2004 (Cth) (“the Rules”) which provide the scale of various costs.

6. The husband cavils with the amount claimed.

7. Leaving to one side the quantum of costs claimed by the wife, the husband contends that the wife is in a stronger financial position than he is, she has property and income, whereas he is living with his parents and in receipt of JobKeeper payments.

8. However, financial disparity does not however detract from the making of a costs order if one is otherwise appropriate.  It might be suggested that the husband, while in an inferior financial position to the wife, would have been more circumspect in bringing the appeal.  He is, after all, a practising barrister.

9. Thus we are of the view that despite this difference in the parties’ financial strengths, a costs order will still be made.

The quantum of the costs

1. In making a costs order, the Court must be satisfied that it is not only appropriate in the circumstances but also that the amount sought is reasonable in the circumstances. Given the failure of the wife to offer any particulars as to the costs claimed other than the solicitor’s broad reference to work done and in light of there being no reference at all to Sch 3 of the Rules, we are left ourselves to determine what costs order would be reasonable, calculated by reference to the scale and on a party/party basis. In this case a figure of $3,000 is appropriate.

2. Thus we will order the husband to pay the wife’s costs of and incidental to the application for leave to appeal including the making of further costs submissions fixed in the sum of $3,000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 11 September 2020.

Associate:

Date:  11 September 2020