Baranski & Baranski & Anor (Costs)
[2012] FamCAFC 76
•8 June 2012
FAMILY COURT OF AUSTRALIA
| BARANSKI & BARANSKI AND ANOR (COSTS) | [2012] FamCAFC 76 |
| FAMILY LAW ─ APPEAL ─ COSTS ─ Where the husband’s appeal was “wholly unsuccessful” before this Court ─ Where the wife had no alternative than to resist the husband’s appeal, and that she did so successfully at considerable expense ─ Whilst arguments of substance were raised on behalf of the husband before this Court, the likelihood of success was always limited having regard to the principles governing his appeal, particularly given the nature of a number of the challenges raised on his behalf ─ Where the financial implications of making a costs order ought not, in our view, disentitle the wife for an order for costs if such an order is otherwise justified ─ Husband ordered to pay two thirds of the wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis |
| Family Law Act 1975 (Cth) s 117(2A) |
| AMS v AIF (1999) 199 CLR 160 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Lovell & Lovell (1950) 81 CLR 513 Penfold v Penfold (1980) 144 CLR 311 |
| APPELLANT: | Mr Baranski |
| FIRST RESPONDENT: | Ms S Baranski |
| SECOND RESPONDENT: | Mrs V Baranski |
| INDEPENDENT CHILDREN’S LAWYER: | Robert Wayne Winter |
| FILE NUMBER: | ADC | 2182 | of | 2008 |
| APPEAL NUMBER: | SOA | 74 | of | 2010 |
| DATE DELIVERED: | 8 June 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Bryant CJ, Coleman & Ainslie-Wallace JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 September 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 918 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Shaw QC with Ms West |
| SOLICITOR FOR THE APPELLANT: | Fittock Barristers & Solicitors |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Pyke QC |
SOLICITOR FOR THE FIRST RESPONDENT: | Ann Josephson Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | Jo-Anne N Milen & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Tinning |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
That the husband pay two thirds (2/3) of the wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baranski & Baranski and Anor (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 74 of 2010
File Number: ADC 2182 of 2008
| Mr Baranski |
Appellant
And
| Ms S Baranski |
First Respondent
And
| Mrs V Baranski |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
COSTS
On 10 February 2012, for reasons which it then published, the Court dismissed the husband’s appeal against orders made by Federal Magistrate Brown in parenting proceedings between the parties. The costs of the appeal were then reserved.
On 7 March 2012 submissions were filed on behalf of the first respondent wife in support of her application for an order for costs of the appeal. On 5 April 2012 submissions in opposition to the making of any costs order were filed on behalf of the unsuccessful appellant husband.
In support of her application for costs, it was relevantly submitted on behalf of the wife that the husband had been wholly unsuccessful with his appeal to this Court. An order for costs was thus submitted to have been justified.
In opposition to any order for costs, the husband relied upon the impact of the undisturbed orders for settlement of property, made by the learned Federal Magistrate. It was submitted that the effect of those orders was that the wife would receive $134,000, and that the husband would retain $40,000 equity in the former matrimonial home, “subject to a further claim of approximately $20,000 interest by the wife”.
Having regard to the submissions made on her behalf, the sum of $134,000 asserted to be receivable by the wife would be likely to be reduced by payment of $23,524 owing to her solicitors and $26,448 owing to her Counsel in relation to the trial of the proceedings before the learned Federal Magistrate, resulting in the wife receiving approximately $74,000.
It was submitted that the husband would, “in all likelihood”, need to sell the former matrimonial home to satisfy any order for costs of the appeal. The effect of a costs order was thus asserted to be that the husband would “essentially” receive nothing by way of settlement of property, and potentially have a residual debt. It was accordingly submitted that there should be no order for costs, although it was, sensibly, not disputed that the husband had been wholly unsuccessful with his appeal.
The balance of the submissions made on behalf of the husband were directed to the basis upon which any costs might be ordered and their quantum. Only if the Court is of the opinion that the circumstances justify an order for costs would it be necessary to consider those matters.
The husband was undoubtedly “wholly unsuccessful” before this Court. Given however that an appeal will always be either successful or “wholly unsuccessful”, and that there is no potential for other outcomes, the absence of success would not of itself necessarily persuade us that the circumstances of the case justified the making of a costs order.
Conversely, the obstacles to success of appeals against discretionary decisions, particularly in parenting proceedings, are long established, substantial and would have been well known to those advising the husband (see House v The King (1936) 55 CLR 499, Lovell & Lovell (1950) 81 CLR 513, AMS v AIF (1999) 199 CLR 160 per Kirby J at paragraph 150 and Gronow v Gronow (1979) 144 CLR 513). Whilst arguments of substance were raised on behalf of the husband before this Court, the likelihood of success was always limited having regard to the principles governing his appeal, particularly given the nature of a number of the challenges raised on his behalf.
It is also relevant that the wife had no alternative than to resist the husband’s appeal, and that she did so successfully, at considerable expense as the submissions on her behalf reveal. These factors are supportive of an order for costs being made in the wife’s favour.
The settlement of property which the wife will receive is modest having regard to her resources and obligations, and will be even more modest after she pays to her lawyers the $49,972 which she owes with respect to the trial. Any order for costs made in the wife’s favour for less than the $18,000 which she owes her solicitors and Counsel for the appeal to this Court will further reduce the modest sum which the wife will receive.
Without criticising him for doing so, the reality that the husband was at risk of a costs order in the event of his appeal failing, in circumstances where he was only likely to receive $40,000 by way of settlement of property were realities which no doubt exercised the husband’s mind when he decided to appeal against the parenting orders. The financial implications of making a costs order ought not, in our view, disentitle the wife for an order for costs if such an order is otherwise justified.
Albeit unsuccessful, as the Court’s reasons for judgment in the appeal confirm, the challenges to the learned Federal Magistrate’s reliance upon extrinsic materials raised important issues of principle of some complexity, the law in relation to which was less than entirely clear.
As the High Court has made clear (see Penfold v Penfold (1980) 144 CLR 311), albeit informed by reference to s 117(2A) of the Family Law Act1975 (Cth), the Court’s discretion with respect to costs is broad. Having regard to the matters to which we have referred, and particularly the last of such matters, the Court is of the opinion that the husband should make a contribution of two thirds to the wife’s costs of and incidental to the appeal. Such contribution should be on a party and party basis as agreed or assessed.
It is unnecessary to engage with the submissions made on behalf of the husband with respect to the quantum of the costs claimed by the wife. Those would be matters for agreement or, in the absence of agreement, determination by the process of assessment.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Coleman and Ainslie -Wallace JJ) delivered on 8 June 2012.
Associate:
Date: 08.06.2012
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