Benworth and Benworth (Costs)
[2012] FamCAFC 116
•9 August 2012
FAMILY COURT OF AUSTRALIA
| BENWORTH & BENWORTH (COSTS) | [2012] FamCAFC 116 |
| FAMILY LAW – APPEAL – COSTS – where the appellant wife was successful on two out of 11 grounds of appeal – where the respondent husband seeks a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”) in respect of the two successful grounds of appeal, and an order that the appellant pay his costs of and incidental to the remaining nine grounds – where the appellant similarly seeks a costs certificate pursuant to s 6 of the Costs Act – where s 6 pertains solely to respondents – where ss 7 and 9 of the Costs Act pertain to appellants – where a precondition to the exercise of power pursuant to ss 6, 7 and 9 is a determination of the question of the costs of the appeal – consideration of s 117 of the Family Law Act 1975 (Cth) – where the Court is not persuaded that the circumstances of this case justify an order for costs being made – where the parties ordered to bear their own costs. |
| Family Law Act 1975 (Cth) |
| Fitzgerald(as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 In the Marriage of I and I (No 2) (1995) FLC 92-625 Penfold v Penfold (1980) 144 CLR 311 |
| APPLICANT: | Ms Benworth |
| RESPONDENT: | Mr Benworth |
| FILE NUMBER: | SYC | 8541 | of | 2007 |
| APPEAL NUMBER: | EA | 74 | of | 2011 |
| DATE DELIVERED: | 9 August 2012 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Strickland and Murphy JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 May 2011 |
| LOWER COURT MNC: | [2011] FamCA 328 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr M Kearney |
| SOLICITOR FOR THE APPLICANT: | Reid Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms L Judge |
| SOLICITOR FOR THE RESPONDENT: | Goldrick Farrell Mullan Solicitors |
Orders
The time for the filing of written submissions as to costs by the respondent husband be extended so as to permit reliance upon submissions filed 30 March 2012.
Each party shall bear their own costs of and incidental to this appeal.
The application by each party for certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Benworth & Benworth (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 Number: EA 74 of 2011
File Number: SYC 8541 of 2007
| MS BENWORTH |
Appellant
And
| MR BENWORTH |
Respondent
REASONS FOR JUDGMENT
(COSTS)
At the conclusion of this appeal, orders were made for the filing of written submissions as to costs. Submissions by each of the parties were subsequently received. The respondent husband’s submissions were received two days beyond the date limited for the filing of those submissions. An adequate explanation for the delay is given within them. No point is taken by the appellant wife in respect of that delay. An extension of time is granted so as to permit them to be relied upon.
The written submissions filed on behalf of the respondent husband seek a costs certificate “…pursuant to Section 6 of the Federal Proceedings (Costs) Act 1981” (hereafter “the Costs Act”) but only “…[w]ith respect to Grounds 8 and 11 of the Appeal…” Otherwise, those submissions contend that “…[i]n relation to [grounds 1 to 7 inclusive] the Respondent Father seeks an Order for costs against the Appellant Mother…”. In written submissions filed on behalf of the appellant wife, it is said: “[w]ith respect to grounds 8 and 11 of the Appeal, the Applicant Wife seeks a Costs Certificate pursuant to Section 6 of the [Costs Act] …” and “[w]ith respect to grounds 1-7, 9 and 10 of the Appeal, that the parties bear their own costs of the appeal.”
Each of those submissions misapprehends the applicable principles.
The appellant wife is not entitled to a certificate pursuant to s 6 of the Costs Act – that section avails only respondents and only once a determination has first been made as to the costs of the appeal. Any application by the appellant for a costs certificate pursuant to, relevantly, s 7 or s 9 of the Costs Act is similarly dependant upon the determination of the question of the costs of the appeal. Further, it is not open for there to be a certificate for part of the costs of an appeal, and an order for costs for the balance of the appeal. To repeat, a certificate can only be provided once there has been a determination made as to the costs of the appeal. That applies equally to a respondent who makes an application for a certificate pursuant to s 6 of the Costs Act.
Turning then to the question of the costs of the appeal.
The costs of an appeal are, like all proceedings under the Act, governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”) and, thus, by the general rule that each party shall bear their own costs (s 117(1)). That general rule is subject to a broad discretion permitting an award of costs in circumstances considered to justify such an award (s 117(2)). In the exercise of that discretion the Court is required to have regard to a number of specified matters (s 117(2A)).
While regard must be had to those matters, the discretion ultimately remains at large (ss 117(2), (2A)(g)). It is not necessary for the Court to be satisfied that all of the factors enumerated within s 117(2A) are satisfied (see, for example, Fitzgerald(as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123). So too, an applicant for costs is not required to satisfy “…any additional or special onus…”; rather, what is required is “…a finding of justifying circumstances as an essential preliminary to the making of an order.” (Penfold v Penfold (1980) 144 CLR 311 at 315). Moreover, any one of the factors may be the sole foundation for an order for costs (Fitzgerald at 130) and, conversely, all of the relevant factors should be taken into account and balanced in arriving at an appropriate decision
(In the Marriage of I and I (No 2) (1995) FLC 92-625 at 82,277).
The appellant’s Notice of Appeal contained 11 grounds. The appeal succeeded, but in respect of two grounds only. No merit was found in the remaining nine grounds. We are not persuaded that it can be said that the respondent was “wholly unsuccessful” within the meaning of s 117(2A)(e). Nor, it might be added, can it be said that the appellant was wholly successful.
The respondent relies upon what is said to be an offer to settle. The asserted offer to settle is effectively conditioned upon the parties executing a child support agreement. That is an issue wholly unconnected with the issues the subject of the trial and the appeal, and about which little of the surrounding circumstances is known by this Court. Furthermore in that respect, it is by no means clear to us that there was at any time an offer by the respondent, the acceptance of which by the appellant would have brought an end to the appeal.
We are otherwise not persuaded that the circumstances of this case justify an order for costs being made. We would accordingly order that each party bear their own costs of and incidental to the appeal.
As to certificates, the Court has a wide discretion whether to grant a certificate or not. When regard is had to all of the circumstances of this appeal, including the financial circumstances of the parties, the fact that two out of eleven grounds of appeal succeeded and nine did not, and the subject matter of the grounds which did succeed in comparison with those that did not, we are not persuaded that certificates pursuant to the Costs Act should issue to either party. Thus we propose to dismiss the applications for those certificates.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for the Honourable Full Court (Bryant CJ, Strickland and Murphy JJ) delivered on 9 August 2012.
Associate:
Date: 9 August 2012
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