Fattore & Blair

[2024] FedCFamC1A 11

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Fattore & Blair [2024] FedCFamC1A 11

Appeal from:

Fattore & Blair [2023] FedCFamC2F 1130

Appeal number:

NAA 281 of 2023

File number:

SYC 5999 of 2022

Judgment of:

CAMPTON J

Date of judgment:

14 February 2024

Catchwords:

FAMILY LAW –– APPEAL – COSTS Where the appeal was dismissed during its hearing on the appellant’s application –Where the respondent sought costs – Where the appeal was incompetent – Where the appellant had not filed a schedule of costs in accordance with Court orders and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant opposed the costs application – Order for the appellant to pay the respondents costs.

Legislation:

Family Law Act1975 (Cth) Pt VII, ss 69F and 117

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 26, 28 and 43

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 1.04, 12.17 and 13.53

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) 4.02

Cases cited:

Darley (No 2) [2023] FedCFamC1A 112

Rilak (No 2) [2022] FedCFamC1A 100

Sfakianakis & Sfakianakis (2019) Fam LR 419; [2019] FamCAFC 54

Trewitt & Brock [2021] FedCFamC1A 9

Number of paragraphs:

26

Date of hearing:

14 February 2024

Place:

Sydney

Counsel for the Appellant:

Mr Sansom SC

Solicitor for the Appellant:

ATW Family Law

Counsel for the Respondent:

Dr Barnett SC

Solicitor for the Respondent:

Mills Oakley Lawyers

ORDERS

NAA 281 of 2023
SYC 5999 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FATTORE

Appellant

AND:

MS BLAIR

Respondent

ORDER MADE BY:	CAMPTON J
DATE OF ORDER:	14 FEBRUARY 2024

THE COURT ORDERS THAT:

1.Within 28 days, the appellant pay the respondent’s cots of the appeal, fixed in the sum of $20,000.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonyms Fattore & Blair has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CAMPTON J:

1. By way of a Notice of Appeal filed 10 October 2023, Mr Fattore (“the father”), sought to appeal a single discretionary procedural order dismissing his attempt to make use of s 69F of the Family Law Act1975 (Cth) (“the Act”) as a vehicle to shut out Ms Blair (“the mother”), from Pt VII proceedings as to the parenting of their five-year-old child.

2. The parties separated on 24 June 2022. The mother, without the father’s knowledge or consent, removed the child from Australia to Country B in mid-August 2022. Proceedings were commenced by the father in the Federal Circuit and Family Court of Australia (Division 2) on 26 August 2022.

3. On 22 October 2022, upon becoming aware that the mother and child had departed Australia to Country B, the father obtained ex parte orders from a Senior Judicial Registrar for the child to live with him pending further order, and for the mother to return the child to Australia.

4. On 1 December 2022, upon becoming aware of the proceedings and the order, the mother filed a Response to the Initiating Application of the father seeking a discharge of all prior orders, an order for sole parental responsibility for the child, and for the child to live with her.

5. Other satellite proceedings were commenced by the mother in the Country B. I am told that alimony and child support orders have been made for the benefit of the mother in those proceedings.

6. The order subject to appeal was made by the primary judge on 15 September 2023.

7. During the hearing of the appeal today, the parties were alerted as to whether the father’s appeal was competent subsequent to the reasoning identified in a number of prior Full Court determinations, including Darley (No 2) [2023] FedCFamC1A 112, Rilak (No 2) [2022] FedCFamC1A 100, and Trewitt & Brock [2021] FedCFamC1A 9.

8. In short compass, pursuant to s 26 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”) the order made by the primary judge dismissing the father’s oral application pursuant to s 69F of the Act may, prima facie, not be a “judgment” from which any appeal may lie, in that it did not impinge any legal right enjoyed by either party and it was not decisive in any way of those legal rights. On one view, the ruling of the primary judge, albeit styled as an order, did not determine any right enjoyed by either party such that it was no more than a procedural ruling about the way the litigation would be conducted.

9. That issue was not identified in the father’s Summary of Argument, nor expressly identified in the mother’s Summary of Argument.

10. The mother’s Summary of Argument implicitly contended that the primary judge’s order under challenge was not a child welfare order, as prescribed by s 28 of the FCFCOA Act and reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”). Hence, leave to appeal the primary judge’s determination was required. That contention was not necessarily accepted by the father at the commencement of the appeal.

11. As recorded earlier in these reasons, an order was made during the appeal hearing that the father’s Notice of Appeal filed on 10 October 2023 be dismissed. After that order was made the mother made an application that the father pay her costs of the appeal fixed in the sum of $20,000.

12. The father’s application for an adjournment of the costs application to enable submissions to be made was refused in circumstances where he had not complied with Order 9 made by the Appeal Judicial Registrar on 22 November 2023 to file a schedule of costs seven days prior to the appeal, being on or before 7 February 2024, and subsequent to his failure to comply with r 13.53 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”) as to filing a costs notice.

13. The mother’s costs notice filed on 7 February 2024, in compliance with the Rules and the Appeal Judicial Registrar’s orders, itemises the wife’s costs on a scale basis at $14,493.85 and on an indemnity basis, they are $33,969.

14. The father opposes an order for costs of the appeal in the mother’s favour with some bravado. That said, he skilfully has submitted that a justifying circumstance to order costs may be established by the wife in the circumstances identified earlier in these reasons.

15. The relevant principles as to costs are well settled. While the starting position established by s 117(1) of the Act is that each party pays their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.

16. The wife bears the onus to establish circumstances which justify departing from the position that each party pay their own costs, for the making of a costs order in her favour. If the wife establishes there are circumstances justifying a costs order, the next consideration is on what basis should costs be paid.

17. The Full Court has made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters. I shall refer to such s 117(2A) matters as are relevant and engaged here.

18. The financial circumstances of each party are somewhat unknown. The evidence in the appeal records that each are engaged in full time employment. I am told that the father has a liability to pay monies by way of the orders for alimony and child support as made in Country B. There is little other evidence as to the financial circumstances of the parties.

19. The father submits there is no property of the parties in Australia because the mother has retained the proceeds of sale of an Australian property in the sum of about $100,000. It is trite to observe that each party has litigated this appeal with the benefit of senior counsel. The father properly concedes that the quantification of costs as incurred by the mother on an indemnity basis are likely to be less than he has incurred in circumstances where he was the appellant. The financial circumstances of the parties as established by the evidence and the concessions that have been made are a factor to be given some weight.

20. The father has been wholly unsuccessful in the appeal. The appeal is from a procedural order. It was never competent, being pursued absent merit.

21. The mother has established justifying circumstances for the making of a costs order. It cannot be in dispute that the father has caused the mother to incur significant legal expense in the appeal in circumstances where he implicitly, with the benefit of advice, took on the referee’s decision. That is not to say that a costs order is by way of penalty, but more to illustrate that he engaged in the appellant litigation on an informed basis, knowing that the absence of success would likely lead to a costs order against him looming on the horizon. That ought to reflect in the quantum of any costs order that achieved.

22. Rule 12.17(a) permits the court to adopt a course to fix costs, although it is accepted that the fixing of costs is entirely a matter for discretion. I am mindful of the fact that these parties have been engaged in intensive hard-fought litigation, and both here and in Country B, and they are mindful of the requirements of r 1.04 to facilitate the resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The Rules also incorporate, as does the s 43 of FCFCOA Act, for the court to determine all outstanding issues between parties as quickly as is possible.

23. The costs notice of the wife establishes a logical, fair, and reasonable foundation to fix costs. It is in these parties’ interests to avoid the expense delay and aggravation involved in any protracted assessment of costs.

24. I am further mindful of what was identified in Sfakianakis & Sfakianakis (2019) Fam LR 419, that the making of such order as to costs as the court considers just permits the court to fashion an order that is apt in the circumstances of the case, such that a fixed costs quantum, other than party and party costs or indemnity costs, may be appropriate in the circumstances of this case. Such approach is appropriate and occasions a just costs determination.

25. In all of the circumstances, I am satisfied that it is just to fix the costs of the wife of the appeal in the sum of $20,000 as sought. This is in the vicinity of 60 per cent of her costs incurred on an indemnity basis.

26. Orders are made as set out at the forefront of these reasons.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton.

Associate:

Dated:       14 February 2024