D & v

[2006] FamCA 918

FAMILY COURT OF AUSTRALIA

D & V [2006] FamCA 918

FAMILY LAW – COSTS OF APPEAL – held there was not sufficient disparity between the financial circumstances of the parties to warrant the Court not making a costs order in favour of the husband given the wife was ‘wholly unsuccessful’ in the appeal and cross appeal - Wife ordered to pay husband’s costs of and incidental to the application for leave to appeal, the appeal, the cross appeal and the application to reopen – As the appeal succeeded on a question of law, wife granted a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 both in respect of her costs in relation to appeal and the costs of the husband which the wife was ordered to pay.

Family Law Act 1975
Federal Proceedings (Costs) Act 1981

APPLICANT/ APPELLANT:  D       

CROSS APPELLANT:  V

FILE NUMBER:  SYF 2522 of 2003    

APPEAL NUMBER:  EA 8L of 2004

EA 133 of 2004

DATE DELIVERED:  21 September 2006

PLACE DELIVERED:  Canberra

JUDGMENT OF:  Finn, May and Boland JJ      

HEARING DATE:  By way of written submissions

LOWER COURT JURISDICTION:  Family Court of Australia     

SOLICITOR FOR THE APPLICANT/ APPELLANT: Slade Manwaring

COUNSEL FOR THE CROSS APPELLANT:              Mr Broun QC
SOLICITOR FOR THE CROSS APPELLANT:           Broun Abrahams Burreket

Orders

1.(a)That the wife pay the husband’s costs of and incidental to the application for leave to appeal, the appeal, the cross appeal and the application to reopen;

(b)That the costs referred to in paragraph (a) be as agreed or as assessed under Chapter 19 of the Family Law Rules 2004; and

(c)That the payment by the wife to the husband of the costs referred to in paragraph (a) shall become due for payment one month from the making of final orders pursuant to s79 of the Family Law Act 1975 for settlement of property between the husband and the wife.

1. That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal and any costs incurred by the appellant husband in relation to the appeal that have been, or are required to be, paid by the respondent wife to the appellant husband in pursuance of Order1 of these orders.

FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER:            EA 8L of 2004; EA 133 of 2004

FILE NUMBER:                 SYF 2522 of 2003           

D

Applicant/ Appellant Husband

And

V

Cross-Appellant Wife

REASONS FOR JUDGMENT

introduction

1. On 10 June 2005 this Full Court delivered reasons for judgment and made orders whereby:

   ·the husband was granted leave to appeal and his appeal was allowed against an order (Order 4) made by Cohen J on 10 December 2004 dismissing an application by the husband to restrain the wife from prosecuting applications in a Dutch court seeking spousal maintenance for herself and child support for the children of the marriage of the husband and the wife;

   ·the order which was the subject of the appeal was set aside, and in its place an order was made restraining the wife from further prosecuting in the Dutch court, the applications for spousal maintenance and child support; and

   ·a cross appeal by the wife against another of the orders (Order 3) made by Cohen J on 10 December 2004, being an order restraining the wife from prosecuting in a Dutch Court applications for property settlement, was dismissed.

2. Our orders of 10 June 2005 also provided for the parties to file written submissions in relation to the husband’s application for leave to appeal (and the appeal), the wife’s cross appeal, and applications made by the wife subsequent to the hearing of the appeal and the cross appeal for the Full Court to receive further material, or for the hearing of the appeal to be reopened.

the wife’s applications subsequent to the hearing of the appeal

1. The nature and outcome of the further applications made by the wife subsequent to the hearing of the appeal and the cross appeal (which occurred on 10 February 2005) are explained in the following paragraphs from our judgment delivered on 10 June 2005:

   ‘82.Subsequent to the hearing on 10 February 2005 of the application for leave to appeal/appeal, and of the cross-appeal, the wife has on three occasions sought to put further material before us.

   83.The first occasion was on 14 February 2005 when Counsel for the wife wrote to the Appeals Registrar requesting that the Court’s attention be drawn to the decision of Rose J in JJT and CTT (2004) FLC 93-198 which had just come to Counsel’s attention.

   84.The legal representatives of the husband were given the opportunity to make submissions in relation to that decision.  They advised the Registrar that the submission made on behalf of the husband was that the decision would be of no assistance to the Court in the determination of the appeal.

   85.It will be observed that we have not found it necessary to refer to the decision in question in these reasons.

   86.Secondly, and perhaps of greater significance, the wife filed an application on 29 April 2005 in which, relevantly for present purposes, the orders which she sought were that she be granted leave to re-open the hearing of the appeal and on such re-opening to adduce fresh evidence.

   87.     The fresh evidence consisted of:

   •an affidavit from the wife sworn on 20 April 2005 in which she stated that the husband had filed proceedings for dissolution of marriage in the Federal Magistrates Court on 16 February 2005 and that she had been served with those proceedings and had filed a response seeking dismissal or a stay of them;

   •an affidavit from the wife’s solicitor sworn 29 April 2005 also stating that the husband had filed an application for divorce on 16 February 2005 and outlining the progress of that application to a point where it had effectively been stayed by an order made by Le Poer Trench J on 28 April 2005 until the hearing of the wife’s application for a stay or dismissal; and

   •an affidavit by a Dutch lawyer sworn on 13 April 2005 concerning the progress of the wife’s proceedings in the Netherlands and the effect on those proceedings of an Australian divorce. 

   88.On 3 May 2005, the Full Court was able to hear the wife’s application to re-open.

   89.The wife’s application to re-open was opposed by the husband.  However, the husband’s solicitor was prepared to give an undertaking that his client would not prosecute his application for divorce pending the delivery of our judgment in relation to the matters heard on 10 February 2005.

   90.In the event we were only prepared to re-open the hearing of the appeal and cross-appeal for the limited purpose enabling us to be informed that it was an agreed fact that the husband had commenced divorce proceedings in the Federal Magistrates Court on 16 February 2005 and that on 2 May 2005 those proceedings had been transferred to the Family Court. We were also prepared to note the husband’s undertaking given through his solicitors that he would not prosecute his divorce proceedings pending delivery of our judgment reserved on 10 February 2005.

   91.Our reasons for refusing to receive any evidence beyond the agreed fact of the institution by the husband of divorce proceedings and the transfer of those proceedings to the Family Court, was essentially that for us to receive, and take into account in our judgment, evidence of the effect of an Australian divorce on the wife’s proceedings in the Netherlands, would be to pre-empt any decision which will have to be made at first instance in relation to any application by the wife to stay the husband’s application for a divorce.

   92.However, we consider it important to emphasise that at the hearing on 3 May 2005, neither party sought that we should defer delivery of our judgment pending the delivery of any judgment in relation to the husband’s application for divorce and any appeal in relation to any such judgment.

   93.The fact that the husband has now instituted proceedings for divorce in Australia does not affect anything which we have said earlier in this judgment.

   94.Finally, on 31 May 2005 Counsel for the wife wrote to the Appeals Registrar advising that at the hearing of the appeal a reference should have been given to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of parenting responsibility to which both Australia and the Netherlands are parties.  Counsel enclosed with his letter a copy of the status report and the relevant clauses, namely articles 5 to 14.

   95.The only explanation given by Counsel for this additional reference was that it may assist the Court in its considerations.  Again, the husband’s legal representatives have been given the opportunity to respond to this further material, but have declined.

   96.In the absence of a further explanation from Counsel for the wife, we do not understand what relevance the Convention, to which we have been referred, would have to the issues which are the subject of this judgment.’

submissions in relation to costs

1. Pursuant to our orders of 10 June 2005, written submissions were subsequently filed on behalf of both parties.

The husband’s submissions

1. In written submissions filed on his behalf on 11 July 2005, the husband sought an order that the wife pay his costs of and incidental to the application for leave to appeal, the appeal, the cross appeal and the application to re-open, with such costs to be ‘as agreed or taxed’ and to ‘fall due for payment one month from the making of final orders for settlement of property…’.

2. In support of his application for costs, the husband relied on paragraphs (a) and (e) of ss117(2A) of the Family Law Act 1975 (“the Act”).

3. It will be convenient at this point to set out the relevant provisions of s117 of the Act:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

4. In relation to s117(2A)(a) and the financial circumstances of the parties, it was submitted on behalf of the husband that having regard to the contents of the parties’ financial statements contained in the Appeal Book, there is a pool of property in the order of at least $2,000,000 to be divided between them, and thus each party would be well able to satisfy a costs order (particularly in circumstances where such an order would have to be satisfied contemporaneously with the division of property).

5. In relation to s117(2A)(e), it was submitted on behalf of the husband that the wife had been ‘wholly unsuccessful’, both in relation to her cross appeal and to the husband’s application for leave to appeal and his appeal.

6. It was further submitted on behalf of the husband that the wife had been unsuccessful in her application to re-open the hearing of the appeal in the sense that nothing of consequence or significance was achieved in the three attempts which the wife made subsequent to the appeal hearing to bring further matters to the attention of the Court.

7. In relation to the last-mentioned matter, the husband placed reliance on paragraphs 82 to 96 of this Court’s judgment of 10 June 2005 which we have earlier set out.  In particular the husband can be seen as relying on paragraphs 85, 93 and 96.  It was submitted on behalf of the husband that the costs incurred by him in relation to these further applications by the wife should be included in any costs order made in his favour.

8. We understood it to also be the submission of the husband that having regard to the observations of the Full Court in Tyson (1993) FLC 92-401 at 80,111, the grant of costs certificates under the Federal Proceedings (Costs) Act 1981, would not be warranted in this case, having regard to the assets of the parties.

The wife’s submissions

1. Two sets of submissions were filed on behalf of the wife.  The first (which were dated 8 July 2005 and apparently filed and served on that date ,although the copy before us also bears a filing date of 25 July 2005) addressed the costs of the application for leave to appeal/ appeal, the cross appeal and the application to re-open.  The second set of submissions dated and filed on 5 August 2005 is stated to be in reply to the husband’s submissions filed 11 July 2005.

2. In the wife’s first set of submissions it is asserted that she is financially dependant on the husband for the support of herself and the four children of the marriage, and that she has no capacity to meet an order for costs ‘other than in reduction of what will be… a relatively small property settlement… with an asset pool little over $2,000,000 if superannuation is included’.

3. Specifically, in relation to the costs of the application for leave to appeal and the appeal, it was submitted on behalf of the wife that:

   ‘…since the Appeal succeeded a Certificate under the Federal Proceedings (Costs) Act may be appropriate and [sic] view of the financial disparity of the parties it is asked that be a special order:  That the costs of the wife be met from the available fund in priority to the costs of the husband.’

4. In relation to the cross appeal, the submissions on behalf of the wife make reference to the fact that she had filed an application for special leave to appeal to the High Court in relation to our decision to dismiss the cross appeal.  However it is then submitted:

   ‘Because the issues raised by the Cross-Appeal were matters of substance related to the same issues that were raised by the Appeal it is submitted that the costs of the Cross-Appeal should be dealt with on the same basis as the costs of the Appeal itself.’

5. We note at this point that on 15 December 2005 the High Court dismissed with costs the wife’s application for special leave.

6. In relation to the costs of the application to re-open the hearing of the appeal, it was submitted on behalf of the wife that the Full Court had accepted that it was appropriate that it should be informed that the husband had commenced divorce proceedings in Australia.  It was further submitted that the costs of the application to inform the Court of the ‘material development’ should be part of the costs of the appeal.  However, it was also submitted that the costs of the husband ‘were in any event minimal since there was no need for the husband to file any material or to incur any significant costs of preparation any the proceedings took approximately one hour’.

7. The wife’s submissions filed 5 August 2005 in reply to the husband’s submissions, also make a number of assertions regarding the respective financial positions of the parties, and can be read as endeavouring to establish that the wife is in a far less favourable financial position than is the husband.

8. It was further submitted in the wife’s second set of submissions that in bringing to the attention of the Full Court the decision in JJT and CTT [2004] FamCA 1104 and later the Convention on Jurisdiction (etc), the wife did not re-open the argument or re-agitate the appeal. There was thus, it was submitted, only one application to re-open the evidence and argument, being the endeavour to place before the Court the fact that the husband had commenced divorce proceedings in Australia, and that evidence was received by the Full Court.

9. The ultimate submission made on behalf of the wife was that a costs certificate should be granted (presumably to both parties).

discussion and conclusion

1. It has to be accepted that the wife was “wholly unsuccessful” in relation both to the husband’s appeal and her own cross appeal.  It must also be accepted that lack of success is a matter to which this Court gives considerable weight when considering applications in respect of the costs of an appeal or of a cross appeal.  In our opinion, the wife’s lack of success in the appeal and in the cross appeal are circumstances which would justify the making of a costs order in the husband’s favour.

2. Although it appears that at the present time the husband has a far superior income to that of the wife, it also appears that he is making a substantial contribution to her support and to the support of their children.  Whatever the exact value of the parties’ property, that value will be shared between them when their property proceedings are finalised.  Accordingly, we are not satisfied that there is sufficient disparity between the parties in relation to their financial circumstances, such as would require that a costs order should not be made in favour of the husband, given his success in both the appeal and the cross appeal.

3. Accordingly, we propose to order that the wife should pay the costs of the husband in relation both to the appeal and the cross appeal, with such costs to be assessed under the Family Law Rules 2004 in default of agreement.

4. Given the terms of the husband’s application, our order will provide that such costs should not fall due for payment until one month from the making of final orders under s79 of the Act for settlement of property between the parties.

5. In light of the submission made on the wife’s behalf which we have recorded in paragraph 15 above, and given that the appeal can be said to have succeeded on a question of law, we propose to grant the respondent wife a certificate under s6 of the Federal Proceedings (Costs) Act 1981 both in respect of the costs incurred by her in relation to the appeal and in respect of the costs which she will be required to pay to the husband pursuant to the costs order which we propose to make in his favour. The relevant sub-sections of s 6 are as follows:

   (1)Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

   …

   (3)The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of:

   (a)the costs incurred by the respondent in relation to the appeal; and

   (b)any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.

1. We would assume that any costs incurred by either party in relation to the further material which was sought on two occasions to be brought to our attention on behalf of the wife, and also indeed in relation to the re-opening on 3 May 2005 would not be great.  Nevertheless, we consider that it is appropriate that they be considered as costs in the appeal, and thus the subject of the order which we propose to make in the husband’s favour and the certificate to be granted in the wife’s favour.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate: JT

Date:  21/9/06