D & D (Costs)

[2006] FamCA 846

[2006] FamCA 846

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT SYDNEY  Appeal No. EA52 of 2005

File No. SYM979 of 2004

IN THE MATTER OF:  D

Appellant Husband

AND:  D

Respondent Wife

CORAM:  WARNICK, MAY AND BOLAND JJ

DATE OF SUBMISSIONS:  7 and 11 APRIL 2006

DATE OF JUDGMENT:  31 AUGUST 2006

JUDGMENT OF THE FULL COURT
(COSTS)

Appearances:              Mr G Watkins of Counsel, instructed by Johnson Horsley Lawyers, 63A Market Street, Wollongong, NSW, 2500 appeared for the Appellant Husband

Mr C Simpson of Counsel, instructed by Kells The Lawyers, 83-85 Market Street, Wollongong, NSW, 2500 appeared for the Respondent Wife

Name of Appeal	D & D (Costs)
Appeal Number	EA52 OF 2005
Date of Submissions	7 APRIL 2006 (Respondent Wife) AND 11 APRIL 2006 (Appellant Husband)
Date of Judgment	31 AUGUST 2006
Coram	WARNICK, MAY & BOLAND JJ

Catchwords:      COSTS – Respondent wife’s application for costs based on the failure of the appeal – The appeal only challenged the trial Judge’s exercise of discretion, rather than asserted mistake of fact or error in legal principle and no merit was found in any of the grounds – Wife’s financial position was either inferior to or at least not superior to that of the husband – The husband’s lack of available assets from which the husband might pay costs may go more strongly to the time within the husband might pay any order – Husband ordered to pay the wife’s costs

Husband to pay the wife’s costs of and incidental to the appeal.

1. The husband had appealed orders of Sexton FM by way of alteration of property interests between him and the wife.  On 17 March 2006, for reasons we then published, save for an order extending time for payment by the wife of a small sum of money to the husband to enable her to retain the former matrimonial home, we dismissed the appeal.  At the same time we made directions in relation to any applications for costs to be by written submissions.  Submissions were filed on 7 and 11 April 2006 but they have only just been brought to our attention.  The wife seeks an order that the husband pay her costs of and incidental to the appeal.

2. The wife’s counsel submits and we accept that the appeal only challenged the trial Judge’s exercise of discretion, rather than asserted mistake of fact or error in legal principle and that no merit was found in any of the grounds.  Counsel further submitted that the wife’s financial position was either inferior to or at least not superior to that of the husband.

3. Counsel for the husband argued that the husband had no currently available assets from which he could pay the wife and that though there was:

   “…some disparity in earning capacity…one takes into account the effects of taxation and the benefit of child support received by the wife, the disparity is not as significant as it may appear from a comparison of the discrepancies between gross income.”

4. Counsel for the husband further argued that “the law was changed between the trial and appeal by the introduction of Part VIIIB of the Family Law Act 1975. The consideration of what orders are just and equitable including the mix of orders has changed as a result of that legislation. It would visit hardship on a party if costs orders were made against them in appellate matters where there are substantial changes to the law.”

5. This submission is wrong.  Part VIIIB commenced on 28 December 2002.  The trial before Sexton FM took place on 7 and 8 April 2005.  The Federal Magistrate delivered judgment on 15 April 2005.

6. Possibly, counsel meant that several decisions of the Full Court (notably Coghlan and Coghlan (2005) FLC 93-220), dealing with different aspects of the “superannuation” amendments, were handed down in June 2005, between the judgment appealed and the hearing of the appeal. But even if he does mean that, the appeal did not fail because of the application of anything said in Coghlan.

7. In our view, the result of the appeal and the lack of merit found in any of the grounds are significant factors.  Though also relevant, having regard to his income, the lack of available assets from which the husband might pay costs may go more strongly to the time within which the husband might pay any order.  However, in the absence of any submission about that by either party, we do not think that we ought make any provision for time to pay at this time.  We consider the husband ought pay the wife’s costs.

ORDERS

1. That the appellant husband pay the respondent wife’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.