Alfonso & Bateman
[2024] FedCFamC1A 80
•9 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Alfonso & Bateman [2024] FedCFamC1A 80
Appeal from: Bateman & Alfonso [2023] FedCFamC2F 1516 Appeal number: NAA 317 of 2023 File number: SYC 6597 of 2023 Judgment of: SCHONELL J Date of judgment: 9 May 2024 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appellant filed a Notice of Discontinuance two days prior to the hearing of the appeal – Where the appellant conceded he should pay the respondents costs – Where the only issue was as to the sum of the costs to be paid by the appellant – Costs ordered in a fixed sum of $27,000. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Cases cited: Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Number of paragraphs: 6 Date of hearing: 9 May 2024 Place: Sydney Counsel for the Appellant: Ms Cantrall Solicitor for the Appellant: Broun Abrahams Burreket Counsel for the Respondent: Mr White SC Solicitor for the Respondent: Barkus Doolan Winning ORDERS
NAA 317 of 2023
SYC 6597 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ALFONSO
Appellant
AND: MS BATEMAN
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
9 MAY 2024
THE COURT ORDERS THAT:
1.The appellant pay the costs of the respondent fixed in the sum of $27,000.
2.Those costs be paid within three months of the date of this order.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Alfonso & Bateman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
On 31 October 2023, a judge sitting in Division 2 of the Court made interim parenting orders in relation to the parties' child, X, born in 2021. By Notice of Appeal filed 17 November 2023, the appellant father appealed the orders of the primary judge and in addition, sought orders that the Full Court of this Court re-exercise its discretion. Consequent upon the filing of the Notice of Appeal, there were procedural orders made by the Appeals Registrar that required the parties to file summaries of argument in relation to the appeal, as well as a list of authorities.
On 7 May 2024, shortly prior to the commencement of the appeal, which was to start today, the appellant filed a Notice of Discontinuance. As at that date, the parties had already complied with the directions of the Appeals Registrar in relation to the filing of Summaries of Argument. There remains to be determined the question of costs of the respondent to the appeal consequent upon the filing of the Notice of Discontinuance.
The appellant quite properly, in my view, concedes that an order for costs should be made. The issue for determination by me is really the question of the quantum of those costs. In anticipation of the appeal, each of the parties had filed schedules of costs as are required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). In the case of the appellant, he had anticipated his costs for the purposes of the appeal to be something in the order of approximately $32,000, plus an amount of approximately $7,000 by way of disbursements. There were also further costs for the appearance on the appeal, which costs, were obviously not required to be incurred in terms of the appeal not proceeding. The respondent, for her part, contends that her fees, on the same basis, were something in the order of approximately $32,000. There is, therefore, a remarkable parity between the two contentions.
The appellant before me today asks that I fix the costs of the respondent in a set sum and contends that a reasonable amount for the costs of the respondent would be something in the order of approximately $12,500.
The respondent seeks costs in part, on a party/party basis and in part, on an indemnity cost basis. The authorities make plain that an order for indemnity costs is not one that should lightly be made, and there should be circumstances of an exceptional kind that warrants orders for costs on an indemnity basis. In that respect, see the decision of the Full Court in Kohan & Kohan (1993) FLC 92-340. I am not satisfied that there are circumstances of an exceptional nature that warrant an order for indemnity costs and decline to make an order for costs on an indemnity basis. The respondent contends that a reasonable sum for the Court to fix for the respondent's costs is something in the order of $31,000 – $32,000.
Both parties ask that I make an order in a fixed amount. It is clear that the Rules of the Court permit me to do so, as does the jurisprudence. Doing the best I can and having regard to the cost schedules filed by both parties and the respective concessions made by each of them in relation to the costs incurred, I am satisfied that a reasonable sum for the appellant to pay the respondent's costs in the sum of $27,000, and I make the following orders.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 9 May 2024
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