Bletch and Douglas (Costs) - [2008] FamCAFC 220

FAMILY COURT OF AUSTRALIA

BLETCH & DOUGLAS (COSTS)

[2008] FamCAFC 220

FAMILY LAW – APPEAL - PARENTING PROCEEDINGS – COSTS – Father withdrew Notice of Appeal - Court of the opinion circumstances justify the making of an order for costs in favour of the mother and the Independent Children’s Lawyer, as agreed or assessed on a party and party basis.

Penfold v Penfold (1979) 144 CLR 311

Family Law Act 1975 (Cth)

APPELLANT:

Mr Bletch

RESPONDENT:

Ms Douglas

INDEPENDENT CHILDREN’S LAWYER:

Kylie Beckhouse

FILE NUMBER:

SYC

2318

2003

APPEAL NUMBER:

2008

DATE DELIVERED:

2 April 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman, Boland and Dawe JJ

HEARING DATE:

2 April 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 March 2008

LOWER COURT MNC:

[2008] FamCA 165

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

SOLICITOR FOR THE APPLICANT:

York Family Law

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Beazley Singleton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kylie Beckhouse
Legal Aid Commission of NSW

Orders

That the appeal be dismissed.
That the stay orders of Le Poer Trench J of 12 March 2008 be and are hereby discharged.
That the appellant father pay the respondent mother's costs of and incidental to the appeal as agreed or assessed on a party and party basis.
That the appellant father pay the Independent Children's Lawyer's costs assessed in the sum of $3,564.00.
That the appearance of counsel for each of the parties before the Court this day be certified.

IT IS NOTED that publication of this judgment under the pseudonym Bletch & Douglas (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

APPEAL NUMBER: EAA 28 of 2008
FILE NUMBER: SYC 2318 of 2003

Mr Bletch

Appellant

And

Ms Douglas

Respondent

EX TEMPORE REASONS FOR JUDGMENT

COLEMAN J

Consequent upon counsel for the appellant, with the consent of counsel for the respondent and counsel for the ICL, obtaining the leave of the Court to withdraw the Notice of Appeal in this matter, counsel for the respondent and counsel for the ICL have sought orders for costs against the unsuccessful appellant. Those applications have been resisted and, with respect, everything that could reasonably have been advanced on behalf of the unsuccessful appellant has been advanced by his learned counsel.
The relevant background to the costs applications can be stated very briefly. The learned trial Judge made orders on 3 March 2008 and published his Reasons for Judgment on 7 March 2008. The appellant filed a Notice of Appeal shortly thereafter and by 11 March had filed an amended Notice of Appeal. Implicit in so doing is the reality that those advising the appellant had by that date a reasonable opportunity to form some assessment of the likely merit or otherwise of the appellant's challenge to the learned trial Judge's decision.
On 12 March 2008 the trial Judge stayed his orders to abide the outcome of the appeal to this Court. The matter appears on all sides to have been prepared for hearing today and, relevantly, a summary of argument and list of authorities was prepared and filed on behalf of the respondent mother on or about 27 March and on behalf of the ICL on or about 28 March. It is apparent that counsel had been retained or, perhaps more accurately in the case of the ICL, briefed, to appear before the Court today to resist the appellant's appeal by those times, that is to say, by 27 and 28 March respectively.
The next relevant event appears to have occurred yesterday, 1 April, at about 3 pm, at which time the respondent mother and the ICL were advised that the appeal was to be discontinued and/or withdrawn. It has fairly and accurately been conceded by learned counsel for the appellant that that was the first time when those resisting the appeal could have ceased to prepare for the appeal to be heard today.
A number of submissions have been made in opposition to the costs applications. It is hopefully more constructive to deal with those within the legislative framework which governs the applications made on behalf of the respondent mother and the ICL.
The statutory provisions governing the applications are not in doubt, nor is the law in relation to their application. In Penfold v Penfold (1979) 144 CLR at 315 the High Court per Stevens, Mason, Aitken and Wilson JJ, said that section 117(2), subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order, but that beyond this there was nothing in the subject matter or in the inter-relationship of the provisions of section 117(1) and 117(2). That is to say, section 117(1) and 117(2) do not impose any additional or special onus on an applicant for an order for costs. The High Court did not agree with the suggestion made in the judgment under appeal that an order can only be made under section 117(2) in "a clear case."
Pursuant to section 117(2A), the financial circumstances or asserted disparity in financial circumstances of each of the parties were sought to be relied upon to resist the applications for costs on behalf of the respondent mother and the ICL. Nothing to which the Court has been referred establishes that the claims for costs should be elevated by reference to financial circumstances. The more relevant potential significance of financial circumstances, as learned counsel for the appellant made clear, was a possible shield for the appellant against any order for costs likely to be made against him.
Without descending into detail, and it is not necessary to do so, it is quite clear that one of the factors which motivated the mother to seek, as she did before the trial Judge, to relocate the child of the parties' residence to the United States was actual or perceived financial benefits for her as a consequence of doing so. So far as the appellant father is concerned, the only evidence of financial circumstances to which we have been referred or have discovered for ourselves is that to which learned counsel for the appellant father referred us, which is to be found at Appeal Book Volume One, page 375, paragraphs 209 and 210.
As learned counsel for the appellant father frankly conceded, the information there revealed is somewhat cryptic, particularly having regard to the item, "Mortgage payments," and the assertions in paragraph 210 which follow. Be that as it may, it is tolerably clear from the appellant father's own evidence before the trial Judge that, from his own efforts, he has the capacity to derive income of about $130,000 per annum. Accepting that he may have no net asset worth but has a not insignificant income available to him, I would not regard the provisions of 117(2A)(a) as assisting the appellant's resistance of the costs applications made against him.
Sub-paragraph (b) does not appear to be relevant and learned counsel for the appellant father has sensibly not sought to make it relevant. Sub-paragraph (c) probably is the statutory provision pursuant to which a number of submissions made on behalf of the appellant father can be referred. In no particular order of significance, the matters asserted on behalf of the appellant which are capable of having relevance under this provision appear to be those set out below.
At 3 pm yesterday the appellant's intention to withdraw the appeal this morning was signified to the other parties to the appeal. There are two aspects of that factor which are of significance. The first, which does not avail the appellant, is that by that time, on any view of the record, all of the costs likely to be incurred by those resisting the appeal had been incurred, or the liability for those costs had been incurred.
Objectively, whilst having decided to withdraw the appeal it was preferable to have done so sooner rather than later, the lateness of that indication in a practical sense had little effect. On the positive side, as it were, for the appellant father, if the Court makes an order for costs as agreed or assessed, the reality that the proceedings will have occupied the Court this morning and necessitated the attendance of solicitors for a period of but a couple hours instead of what would almost certainly have been a very full day could be expected to be reflected in any assessment of costs or agreement in that regard.
To the extent that implicit in the submissions of learned counsel for the appellant father was the suggestion that the timeframe within which this appeal had to be prepared and be made ready to proceed should operate in some way to the appellant's advantage in the exercise of discretion, I respectfully disagree with any such suggestion. Undoubtedly the case had to be prepared quickly. There was an expedition application which was, the record suggests, consented to, and with respect, sensibly so. The practical position is that all parties were in the same boat, as it were, in relation to preparation of the appeal for hearing. As noted earlier, long prior to the date for hearing of the appeal those advising the appellant father had sufficient grasp of the trial Judge's judgment to be in a position to file an Amended Notice of Appeal.
So far as a stay is concerned, as the record would show this Court has rejected the suggestion on behalf of the respondent mother that the father should pay his costs of successfully seeking a stay of the trial Judge's orders. The stay, with respect, assumes no significance in the exercise of discretion with respect to costs. The conduct of the appellant father does not, save to the extent that that term is understood within section 117(2A)(c), warrant criticism. The Court accepts that he appealed the learned trial Judge's decision bona fide, just as it accepts that his withdrawal of the appeal through his counsel today could not have been an easy step for him to take.
One of the reasons why the Court is disinclined to accept that, if awarded, costs should be on an indemnity basis, is precisely that factor. Whatever the merits of this appeal may have been found to be, the appellant father has at all times acted bona fide in his prosecution and ultimate withdrawal of the appeal. Whilst he may not see it as such, were costs to be awarded, his conduct can be seen as having been influential in his avoidance of the indemnity costs sought on behalf of the respondent mother.
Subsection (d) of 117(2A) is not relevant. As learned counsel for the appellant father sensibly recognised, subsection (e) is relevant, and is influential. By withdrawing the appeal the appellant father comes squarely within the provisions of subsection (e), that is to say, he is a party who has been wholly unsuccessful in the proceedings. Nothing more can constructively be said about that.
To the extent that learned counsel for the appellant father may have been seeking, pursuant to section 117(2A)(f) to advance his client's resistance of the costs applications against him by reference to an offer of settlement made at noon yesterday, I do not perceive that such an attempt can be successful. Whatever the offer conveyed, and it seems implicit in what has been submitted that it was rejected, the withdrawal or indication that the appeal would be withdrawn some three hours later would seem to vindicate those who rejected the offer in doing so.
For my part I do not consider any other matter to be relevant within subsection (g). Having regard to what the High Court said and the terms of the statute, I form the requisite opinion that in the circumstances, as I have briefly and inelegantly articulated them, costs orders are justified. The order appropriate to be made in favour of the ICL is not contentious. That is to say, whilst liability has been vigorously resisted, sensibly, in my view, quantum has not, and it is agreed that an appropriate order in favour of the ICL would be for the sum of $3,564.00.
For the record, for my part I do not regard any aspect of this appeal as exceptional in a way which would enliven the discretion to award indemnity costs. Indeed, to the extent that it is necessary, the conduct of the appellant father in withdrawing the appeal and saving the respondent mother the uncertainty in terms of retaining the fruits of success at first instance, and the saving of costs in other areas today, militates against doing so.
In my view the appropriate order with respect to the respondent mother would be that the costs of and incidental to the appeal, as agreed or assessed on a party and party basis, should be awarded. For those brief reasons I would make costs orders in the form indicated with respect to each of the respondent mother and the ICL.

BOLAND J

I agree with the reasons of the learned presiding judge and I have nothing further to add.

DAWE J

I also concur and have nothing further to add.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Full Court delivered on 2 April 2008.

Associate:

Date: 1 September 2010