Babington & Livesey (No 2)
[2023] FedCFamC1A 177
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Babington & Livesey (No 2) [2023] FedCFamC1A 177
Appeal from: Livesey & Babington [2023] FedCFamC2F 257 Appeal number(s): NAA 85 of 2023;
NAA 86 of 2023File number(s): BRC 13625 of 2019 Judgment of: TREE J Date of judgment: 18 October 2023 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appellant’s appeals were allowed and the property proceedings remitted for rehearing – Where costs submissions were sought from the parties – Where the appellant seeks a costs order from the respondent, or in the alternative costs certificates – Where the matters enumerated in s 117(2A) do not persuade the Court that the circumstances here justify an order for costs – Costs certificated issued to both parties. Legislation: Family Law Act 1975 (Cth) s 117 Number of paragraphs: 11 Date of last submission/s: 3 October 2023 Date of hearing: Determined on the papers Place: In Chambers The Appellant: Self-represented litigant Counsel for the Respondent: Ms Lyons Solicitor for the Respondent: Ferrall & Co Lawyers ORDERS
NAA 85 of 2023;
NAA 86 of 2023
BRC 13625 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BABINGTON
Appellant
AND: MR LIVESEY
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
18 OCTOBER 2023
THE COURT ORDERS THAT:
1.The appellant’s application for costs against the respondent is dismissed.
2.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeals.
3.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeals.
4.The Court grants to each party a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the parties in respect of the costs incurred by them in relation to the rehearing.
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 Babington & Livesey (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 21 August 2023, for reasons which remain suppressed, I allowed two appeals and remitted the property settlement proceedings for rehearing in the Federal Circuit and Family Court of Australia (Division 2). I also ordered a timetable facilitating the resolution of any subsequent costs application which might ensue.
Now Ms Babington (“the wife”) seeks that Mr Livesey (“the husband”) pay her costs of the appeals, which application he opposes. In the alternative, both the husband and the wife seek that costs certificates issue, seemingly both in relation to the appeals and the rehearing.
The default position in relation to all proceedings under the Family Law Act 1975 (Cth) (“the Act”) is that each party ought bear their own costs, unless, having regard to the matters enumerated in s 117(2A) of the Act, the Court is of the opinion that there are circumstances that justify a costs order.
By reference to the s 117(2A) factors, I make the following observations.
The husband appears to presently be in somewhat better financial circumstances than the wife, and certainly has a greater and more secure income stream than she does even if his expenses exceed it. That said, he is seemingly quite unwell, (being in receipt of an income protection benefit) and has considerable debt from his legal costs of this litigation. Whilst he may also presently enjoy a better asset position than the wife, that may change after the conclusion of the rehearing.
Neither party were legally aided in the appeals.
Neither party misconducted themselves in any relevant way in the appeals.
The appeals were not necessitated by any failure to comply with court orders.
The husband was wholly unsuccessful in both appeals, and the wife wholly successful. It seems that whilst offers have been made to settle the underlying proceedings, including during the currency of the appeals, no offers specific to their disposition were made. Until the outcome of the rehearing is known, it cannot be ascertained whether either party has done materially better or worse than what they were prepared to settle for.
Finally, although in the appeal judgment I was critical of one aspect of the husband’s conduct before the primary judge, the appeals did not succeed on that basis, but rather on the basis of the grounds enumerated in the Notices of Appeal.
Weighing those matters does not persuade me that the circumstances here justify an order for costs. However costs certificates for the appeals and the rehearing will issue to both parties.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 18 October 2023
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