Barone and Barone (Costs)
[2012] FamCAFC 144
•6 September 2012
FAMILY COURT OF AUSTRALIA
| BARONE & BARONE (COSTS) | [2012] FamCAFC 144 |
| FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal in EA 108 of 2011 was allowed in circumstances which would enliven the provisions of the costs legislation ─ Each party granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the re-hearing of the proceedings. FAMILY LAW ─ APPEAL ─ COSTS ─ Whether the appellant father should be ordered to pay the respondent mother’s costs of two previous appeals instituted on his behalf and subsequently withdrawn ─ Where it was acknowledged that since the appeals were discontinued, they could be regarded as having been “wholly unsuccessful” ─ Where in the circumstances, at least on a party and party basis, the Court saw no reason why the respondent mother should be financially disadvantaged ─ Where nothing asserted or raised on behalf of the appellant father or emerging from his financial statement persuaded the Court to decline to award costs ─ Where the circumstances justified the making of a costs order against the appellant father with respect to the discontinued appeals EA 148 of 2009 and EA 166 of 2010. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Mr Barone |
| RESPONDENT: | Mrs Barone |
| FILE NUMBER: | SYC | 6392 | of | 2009 |
| APPEAL NUMBERS: | EA | 148 | of | 2009 |
| EA | 166 | of | 2010 | |
| EA | 108 | of | 2011 |
| DATE DELIVERED: | 6 September 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Coleman & May JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 1 September 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 902 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney |
| SOLICITOR FOR THE APPELLANT: | Parry Carroll |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Brischetto & Ford |
Orders
That the appellant father pay the respondent mother’s costs of and incidental to the Notices of Appeal in EA 148 of 2009 and EA 166 of 2010 as agreed or assessed on a party and party basis.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of 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 father in respect of the costs incurred by the appellant father in relation to the appeal EA 108 of 2011.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of 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 mother in respect of the costs incurred by the respondent mother in relation to the appeal EA 108 of 2011.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by the orders of the Full Court dated 25 July 2012.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barone & Barone (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 SYDNEY |
Appeal Numbers: EA 148 of 2009, EA 166 of 2010 and EA 108 of 2011
File Number: SYC 6392 of 2009
| Mr Barone |
Appellant
And
| Mrs Barone |
Respondent
REASONS FOR JUDGMENT
COSTS
introduction
On 26 June 2012 the Court heard the appeal EA 108 of 2011 in this matter, and directed that submissions be filed in relation to costs with respect to the discontinued appeals EA 148 of 2009 and EA 166 of 2010.
On 10 July 2012 submissions were filed on behalf of the appellant father in opposition to the making of orders for costs against him in either of the discontinued appeals.
On 23 July 2012 submissions were filed on behalf of the respondent mother in support of her application for costs of the discontinued appeals.
Although in affidavit form sworn by the father, further submissions were filed on his behalf on 27 July 2012.
On 25 July 2012 the Court delivered judgment in the appeal EA 108 of 2011, and directed that submissions be filed in relation to the costs of appeal EA 108 of 2011.
On 8 August 2012 submissions were filed on behalf of each party in relation to costs with respect to appeal EA 108 of 2011. Both parties requested that costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the costs legislation”) for the appeal and the re-hearing of the proceedings be awarded.
The appeal in EA 108 of 2011 having been allowed in circumstances which would enliven the provisions of the costs legislation, the Court will issue costs certificates to both parties, with respect to the appeal, and the re-hearing of the proceedings.
As is apparent from the submissions filed on behalf of the parties, the issue requiring determination is whether, as the respondent mother seeks, the appellant father should be ordered to pay her costs of two previous appeals instituted on his behalf and subsequently withdrawn.
As Counsel for the appellant father submitted, the basis upon which the Court could form the opinion that the circumstances justified orders for costs being made in favour of the respondent mother with respect to the father’s discontinued appeals is that the father was “wholly unsuccessful” in each of those appeals.
The submission that the withdrawn appeals would not have exposed the mother to significant costs, and that the appellant father “sought to minimise at all stages the costs incurred by each of the parties in relation to the two appeals” are more relevant to the quantum of costs if they are to be awarded, than to whether or not the Court forms the opinion that the circumstances justify the making of a costs order.
So far as the submissions in relation to the financial circumstances of the appellant father, and the contents of the financial statement filed by him are concerned, nothing raised on his behalf, or emerging from his financial statement, would lead us to decline to award costs if the circumstances otherwise justified doing so.
Whatever the reasons for filing the Notices of Appeal in EA 148 of 2009 and EA 166 of 2010, which were subsequently discontinued, the reality is that, by the father instituting such appeals, the mother had little alternative other than to resist them, thereby incurring costs.
As Counsel for the appellant father’s submissions acknowledge, having been discontinued, those appeals can be regarded as having been “wholly unsuccessful”.
In the circumstances, at least on a party and party basis, we see no reason why the mother should be financially disadvantaged. We are accordingly of the opinion that the circumstances justify the making of a costs order with respect to the discontinued appeals EA 148 of 2009 and EA 166 of 2010, and that nothing asserted on behalf of the appellant father persuades us that we should decline to do so.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment as to costs of the Honourable Full Court (Bryant CJ, Coleman and May JJ) delivered on 6 September 2012.
Associate:
Date: 06.09.2012
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