Colburn & Cleese

[2021] FamCAFC 12

FAMILY COURT OF AUSTRALIA

Colburn & Cleese [2021] FamCAFC 12

Appeal from:

Cleese & Colburn [2020] FamCA 516

Appeal number(s):

EAA 112 of 2020

File number(s):

SYC 2480 of 2016

Judgment of:

AINSLIE-WALLACE, RYAN & ALDRIDGE JJ

Date of judgment:

12 February 2021

Catchwords:

FAMILY LAW – APPEAL – COSTS – Appeal succeeded on a ground not raised by the appellant – Hypothetical or advisory opinion – Where the respondent seeks that the appellant pay her costs of the appeal – Financial circumstances – Conduct of both parties to the proceedings weighs in favour of no order as to costs – No costs certificates granted – Appellant’s application for his costs of meeting the respondent’s costs application dismissed.

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Proceedings (Costs) Act 1981 (Cth)

Property (Relationships) Act1984 (NSW) s 41

Family Law Rules 2004 (Cth) Sch 3

Cases cited:

C & M (Costs) [2006] FamCA 213

Colburn & Cleese (2020) FLC 93-995; [2020] FamCAFC 278

Whitehouse & Whitehouse (Costs) [2010] FamCAFC 93

Division:

Appeal Division

Number of paragraphs:

15

Place:

Heard in Chambers by way of written submissions, delivered in Sydney

Counsel for the Appellant:

Mr Coleman SC with Mr O’Brien

Solicitor for the Appellant:

Bryant McKinnon Lawyers

Counsel for the Respondent:

Mr Stewart

Solicitor for the Respondent:

Dorter Family Lawyers and Mediators

ORDERS

EAA 112 of 2020
SYC 2480 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR COLBURN

Appellant

AND:

MS CLEESE

Respondent

ORDER MADE BY:	AINSLIE-WALLACE, RYAN & ALDRIDGE JJ
DATE OF ORDER:	12 FEBRUARY 2021

THE COURT ORDERS THAT:

1.There be no order as to costs.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Colburn & Cleese has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AINSLIE-WALLACE, RYAN & ALDRIDGE JJ:

1. On 16 November 2020, this Court allowed the application for leave to appeal and the appeal in this matter and set aside the primary judge’s declaration that the Family Court of Australia had jurisdiction to determine the application of Ms Cleese (“the respondent”) to set aside property adjustment consent orders made by the Supreme Court of New South Wales pursuant to the Property (Relationships) Act1984 (NSW). We also remitted the matter for further hearing and made orders for the filing of written submissions as to costs.

2. The appeal was unusual in that we did not determine the grounds of appeal contained in the Notice of Appeal filed by Mr Colburn (“the appellant”) on 14 August 2020. Rather, as explained in our substantive reasons for judgment, we found that the declaration made by the primary judge did not determine the rights of the parties and was instead an advisory opinion as to the jurisdiction of the Court if particular facts were found (Colburn & Cleese (2020) FLC 93-995 (“Colburn”) at [45]). We were satisfied that the question that was posed by the parties to the primary judge should not have been asked at that stage of the proceedings (Colburn at [49] and [51]).

3. As directed, written submissions as to costs were filed by the respondent on 4 December 2020. The appellant filed written submissions in reply on 9 December 2020 and written submissions in response were filed by the respondent on 17 December 2020.

4. The respondent primarily seeks that the appellant pay her costs of and incidental to the appeal in the sum of $23,462.99 (assessed in accordance with Sch 3 of the Family Law Rules 2004 (Cth)). In the alternative, she seeks a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

5. The respondent also seeks her “costs of and incidental to the hearing of the preliminary questions in the Court below” (the respondent’s written submissions filed on 4 December 2020, paragraph 1.1(a)). However, it is an issue for determination at first instance (C & M (Costs) [2006] FamCA 213 at [2]; Whitehouse & Whitehouse (Costs) [2010] FamCAFC 93 at [9]) and not by us.

6. The appellant submits that each party should bear his or her own costs of the appeal.

7. In proceedings under the Family Law Act 1975 (Cth) (“the Act”), each party is to bear his or her own costs of the proceedings (s 117(1)), unless in all the circumstances, the Court considers that a different order is just (s 117(2)). In considering whether such other order should be made, the Court is to have regard to the matters set out in s 117(2A) of the Act.

8. The respondent relies on three matters set out in s 117(2A) of the Act.

9. First, the respondent submits that there is a material difference in the financial positions of the parties and that her financial circumstances are modest (s 117(2A)(a) of the Act). The respondent is retired, in receipt of an age pension, solely services a joint mortgage in both parties’ names and has increasing legal and medical expenses. There is no evidence of the appellant’s financial circumstances before the Court.

10. The respondent’s second submission is that the preliminary hearing before the primary judge was initiated and pressed by the appellant and not the respondent (s 117(2A)(c) of the Act).

11. The appellant contends that both parties contributed to the “misconceived hearing” (the appellant’s written submissions filed on 9 December 2020, paragraph 2) which led to the primary judge’s decision and thus “the circumstances of this appeal… should not have excited either party to do other than bear his or her costs” (the appellant’s written submissions filed on 9 December 2020, paragraph 7). We agree that although the separate question which led to the declaration that was the subject of the appeal was advanced by the appellant, it was, in fact, part of a joint endeavour by the parties to have the contentious issue of the Court’s jurisdiction to exercise power under s 41 of the Property (Relationships) Act1984 (NSW) resolved before the determination of any other issue in the proceedings. This consideration favours there being no order as to costs.

12. Finally, the respondent asserts that the appellant was wholly unsuccessful (s 117(2A)(e) of the Act) in that none of the grounds of appeal succeeded. That is so, however, because of the finding that the question posed to the primary judge was misconceived, the grounds of appeal, which did not raise the issue of an advisory opinion, were not considered. Neither party can therefore be described as being successful, or not, in respect of the substance of the appeal.

13. We accept that the respondent has limited financial means but she was a part of the joint approach to the primary judge. Taking all of the above matters into account, it is appropriate that there be no order as to costs.

14. It follows that, for the same reasons, the respondent’s application for a costs certificate should also be dismissed.

15. The appellant made an application seeking that the respondent pay his costs of meeting the respondent’s costs application in the sum of $2,000. Having regard to the same matters, we consider that the respondent’s financial position outweighs the other considerations and this application does not succeed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Ryan & Aldridge.

Associate:

Dated:       12 February 2021