FJH & SJH
[2006] FamCA 636
•11 April 2006
[2006] FamCA 636
JFFJHSJ
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT CAIRNS VIA TELEPHONE & VIDEO LINK
Appeal No. EA 108 of 2005
File No. SYM 3745 of 2001
IN THE MATTER OF:
FJH
Appellant/Wife
- and -
SJH
Respondent/Husband
REASONS FOR JUDGMENT
(EX TEMPORE)
BEFORE: JUSTICE I R COLEMAN
HEARD: 11th day of April 2006
JUDGMENT: 11th day of April 2006
APPEARANCES: Mr Byrnes, Solicitor, (instructed by Byrnes Solicitors, 128-132 William Street, Port Macquarie NSW 2444) appeared on behalf of the appellant wife.
Mr Duane of Counsel, (instructed by Stacks Solicitors, 1/49 Horton Street, Port Macquarie NSW 2444) appeared on behalf of the respondent husband.
Name of Appeal FJH & SJH
Appeal Number EA 108 of 2005
Date of Appeal Hearing 11th day of April 2006
Date of Judgment 11th day of April 2006
Bench Coleman J
Catchwords: Appeal against orders of Federal Magistrate dismissing an application pursuant to s 44(3) of the Family Law Act 1975 seeking leave to bring proceedings for spousal maintenance out of time.
Appellant contended that Federal Magistrate wrongly applied the law, in particular with respect to the issue of hardship caused if leave were not granted – Federal Magistrate addressed issue of hardship and did not find on the evidence that the appellant was unable to support herself adequately by reason of the matters set out in s 72 or for any other reason having regard to the matters in s 75(2) – Open to Federal Magistrate to conclude on the findings of fact that a prima facie case for maintenance had not been established.
Appeal dismissed.
By Notice of Appeal filed 11 September 2005 the appellant, sought to appeal against orders made by Coakes FM in proceedings between the appellant as applicant and the respondent.
The orders of the learned Federal Magistrate thus challenged by the appellant were made on 19 August 2005 and provided that the application of the appellant filed 16 November 2004, seeking leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) (hereinafter referred to as “the Act”), to bring proceedings for spousal maintenance out of time, be refused.
From that decision the appellant seeks to appeal and, to the extent that leave may be necessary in that regard, seeks that a grant of leave to appeal be made in her favour and, consequent upon such grant of leave, that her appeal be allowed. The respondent resists the appellant's appeal and/or application for leave to appeal.
As the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, and decisions of this Court substantially adopting that decision for the purpose of proceedings under s 44, make clear, the issue ultimately is whether, if leave to appeal were to be granted, the appellant would have reasonable prospects of success on appeal. Put another way, if the grounds of appeal advanced by the appellant before the Court today in writing and orally find favour, to the extent that leave to appeal is required, that leave would be granted, and the appeal would be allowed.
The relevant law in relation to the substance of the appeal and/or application for leave to appeal is not in doubt. It is succinctly and accurately summarised in the written submissions of learned counsel for the respondent at paragraphs 48 to 52 inclusive of his written outline of argument. The principles emerging from the authorities there cited clearly apply to the current appeal or application for leave to appeal.
To those authorities one further observation is appropriate to be made. As a reading of them makes clear, the grounds of appeal raised by the appellant do not involve any challenge to any finding of fact made by the learned Federal Magistrate. As the appellant's learned counsel clearly recognised in his preliminary observations to the Court earlier today, the reality that other facts may have been found but were not does not assume significance in this appeal.
This is not a case where any ground of appeal sought to be agitated on behalf of the appellant involves the Court concluding that a finding of fact made by the learned Federal Magistrate was not reasonably open to him. As will be seen, the appeal turns largely on the significance of facts as found rather than on any challenge to the basis of the findings of fact thus made.
In his oral submissions it did appear that one qualification to that proposition was raised, but objectively that was not a matter which finds expression in a ground of appeal nor in any of the written outline of argument in support of the grounds of appeal.
The law which governed the proceedings before the learned Federal Magistrate is also not in doubt and it is not, the Court perceives, suggested by the appellant that the learned Federal Magistrate misstated the law in a general sense, but rather the complaint is that he failed to apply it correctly and, in particular, in relation to the issue of hardship.
10. There are two statutory provisions which clearly were relevant to the proceedings before the learned Federal Magistrate. There is no doubt that his Honour was aware of what they were, they being the provisions of s 44 of the Act itself, which his Honour set forth in his reasons for judgment. His Honour there referred to the requirement of s 44(4) that for leave to be granted under s 44(3) or s 44(3A) of the Act the Court must be satisfied, relevantly for present purposes, “that hardship would be caused to a party to the relevant marriage or a child if leave were not granted”. The legislative intention is clear from the wording which the Parliament used in enacting s 44(4) of the Act. It is not discretionary in the sense that it provides that the Court may grant leave, but rather prescriptive in requiring that the Court not grant leave unless it is satisfied in relation to hardship.
11. The other statutory provision which is relevant for present purposes, given that the application of the appellant before the learned Federal Magistrate, as his Honour correctly recorded, was for leave to bring an application for spousal maintenance, is s 72 of the Act. The terms of s 72 provide that “a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself [in this case] adequately whether” by reason of the three categories of factors then set forth having regard to any relevant matter referred to in s 75(2) of the Act. The legislative intention is made clear by the insertion of the words in the statute, "if, and only if", and it makes clear that at least in an evidentiary sense the onus of making out a claim under s 72 is cast upon the person seeking relief pursuant to that section.
12. The reasons for judgment of the learned Federal Magistrate, particularly given the absence of challenge to any finding of fact, assume significance both to provide a context to the case which was determined by the learned Federal Magistrate and to provide background to a consideration of the various grounds of appeal which have been agitated before this Court.
REASONS FOR JUDGMENT OF FEDERAL MAGISTRATE
13. His Honour recorded accurately the nature of the relief sought by the wife before him. He referred to the opposition of the respondent to the granting of such relief. His Honour then set out, under the heading "Background", a series of matters, the factual accuracy of which has not been sought to be challenged in this appeal.
14. Under the heading "Evidence", the learned Federal Magistrate identified the evidence before him. There is no suggestion that his Honour failed to have regard to any of such evidence but, to a limited extent, in one respect to which reference will shortly be made, that he failed to have regard to one factor revealed by that evidence.
15. The learned Federal Magistrate set out the relevant law and directed his mind closely to the question of hardship, a topic to which he necessarily later had regard. His Honour then referred, under the heading "Discussion", to a number of matters, principally recording, in a way which the Court accepts is accurate, having regard to the affidavit material upon which the appellant moved the lower Court, and the ground upon which the appellant sought to make out her case.
16. In a series of paragraphs (commencing at paragraph 26 and concluding with paragraph 34) the learned Federal Magistrate made a series of findings, none of which has been sought to be challenged in this appeal. These findings of fact assume significance for present purposes, as they clearly did before his Honour.
17. His Honour found that the total income of the appellant from all sources was $1061 per week. The components of that sum were indicated. Quite apart from the absence of challenge to the findings thus made, the Court has discerned from the affidavit evidence of the appellant herself that the figures were those put forward by her.
18. As is the case with paragraphs 27 to 34 inclusive, all of the findings of fact that were made by the learned Federal Magistrate in those paragraphs were based upon the evidence of the appellant. His Honour was, in the circumstances, obliged to make findings and did so in ways which have not been shown to have been factually inaccurate. His Honour then proceeded to consider the assets and liabilities of the appellant. His recording is not suggested to have been other than accurate.
19. The learned Federal Magistrate referred to an affidavit sworn by the appellant on 26 April 2005, filed 27 April 2005, and, as paragraphs 29 and 30 make clear, added to the previous expense figure of $36,852 per annum an additional $11,605.30. He accepted that the omission of the latter sum was inadvertent. He thus included it. So doing produced $48,457.30 per annum of expenses asserted by the appellant herself, and $1061 weekly as her gross source of funds from which to meet that expenditure. Clearly there was a surplus.
20. The learned Federal Magistrate then turned to consider capital expenditure totalling $22,476, to which the appellant referred in her affidavit, filed 27 April 2005. He concluded in that regard that on the evidence the costs of capital improvements do not form part of ordinary recurring household expenditure.
21. It is appropriate to digress briefly to deal with a matter raised in relation to this topic by learned counsel for the appellant in his oral submissions in response to the written submissions of counsel for the respondent earlier today. Counsel's contention was that the learned Federal Magistrate had erred in neither raising with him in the course of discussion the question of capital expenditure or erring in not allowing that sum. For reasons which will become apparent, neither of those complaints, with all due respect to counsel, has merit. When one goes to the passage of the evidence of the appellant herself, there was simply nothing arising from that which obliged his Honour to take into account that expenditure as a recurring or otherwise relevant expense, nor, given the facts asserted by the appellant herself, was there anything arising from that topic which obliged the learned Federal Magistrate to raise the issue with the appellant.
22. On the Court's reading of the appellant's own evidence, to the extent that that sum of $22,426 may have been taken into account, so doing would have been potentially to the detriment of the appellant's case rather than to its advantage. The learned Federal Magistrate revisited the topic in paragraph 34 and it is clear that, whilst he did not take that into account in the appellant's favour, he was alive to the reality that it did reveal some demonstrated capacity to make payments of a capital nature without apparent increase in liabilities or reduction in otherwise available income.
23. The evidence relevant to this issue is found at appeal book 212, and the relevant paragraphs are paragraphs 14 to 18 inclusive. From paragraphs 15 and 17 the figure of $21,778 is derived. From paragraph 18 $648 is derived, producing a sum of $22,426 when the two sums are added together.
24. It is significant to note that at the outset of paragraph 14 the appellant says “In the year ended 30 June 2004 I incurred a number of expenses”, which are there set out. It is clear that the major item was a renovation of the kitchen of $11,300. It is clear that the expenditure has passed and that to the extent that it involved in borrowing, such borrowing would be reflected in the current debts of the appellant and, in turn, reflected in her repayments with respect to such debts.
25. Whilst, by way of submission, the appellant asserted (paragraph 17) that those expenses should be added to her Financial Statement, with great respect to her that would not, on her own evidence, have been a permissible expense. Those paragraphs of his judgment make clear that the learned Federal Magistrate did not err in not having regard to such expenditure for the purpose of the case he was obliged to determine. In the circumstances his Honour was not obliged to call upon, or in any way raise with counsel for the appellant the status of such payments.
26. His Honour then, to resume the narrative from paragraph 32, referred to the gross surplus of income over expenditure. Clearly erring on the side of caution, for reasons he gave in paragraph 33, the learned Federal Magistrate quarantined $4368 of that sum on the basis that it may have been an impermissible sum for the purpose of s 72. So doing produced a surplus of $2346.70. His Honour then referred to the fact that the appellant had $7000 in a bank account, albeit legal expenses would erode that significantly, but then recorded, in a finding of fact which has not been successfully challenged in this appeal, that the appellant had demonstrated "a capacity to accumulate a little more than $6000 in seven months as well as outlay $22,000 on capital improvement". Even after having regard to off setting sums of $2000 for income tax and GST of $1316, the learned Federal Magistrate was thus able to find that even with at least an annual surplus of $2346.70 the appellant had been able to generate not less than $6000 in seven months.
27. It was submitted in oral submissions this morning by learned counsel for the appellant that the learned Federal Magistrate erred in deciding the case on the evidence before him and had erred in approaching the matter on the basis of whether or not the appellant would succeed because, amongst other things, “her case cannot be at its highest”.
28. With great respect to learned counsel for the appellant, the Court cannot accept, having regard to the statutory provisions which the learned Federal Magistrate was bound by, and the fact that the learned Federal Magistrate proceeded on the basis of the appellant's own evidence, that such submission can avail the appellant at this time. The appellant’s case was considered as it was presented. On what basis it may have been improved, or his Honour could have been expected to know that it could has not been suggested.
29. His Honour then proceeded to deal with an absence of a satisfactory reason for explaining the delay and set out a number of matters relevant to that topic which arose on the evidence. He was satisfied on the evidence that the wife received a copy of the decree nisi shortly after it became absolute. That finding of fact has not been challenged in the appeal. Nor has his Honour's finding that the decree would have contained the note which he set out immediately above that finding.
30. The learned Federal Magistrate then dealt with alleged representations by the respondent and concluded that any such representations were not relevant for the purpose of the proceedings before him. His Honour referred to the appellant's assertion that she was influenced to enter into the consent property orders for reasons set out in paragraph 38, which it is plain from paragraph 39, he rejected.
31. His Honour found that there was no doubt that the respondent was in a superior financial position compared with the appellant, his gross income being as there set out, his expenditure being as recorded, his net assets and liability position and remarriage being as referred to in paragraphs 44 and 45.
32. Turning to the question of hardship, which was the essential matter for determination in the proceedings, his Honour dealt with the various comprehensive submissions made by counsel for the appellant. One of those submissions was that the appellant found herself in a position of hardship as a direct consequence of the property settlement orders made in May 2001. Part of that was a complaint with respect to various promises about future financial assistance.
33. The learned Federal Magistrate referred to the submission that the Court would make a finding that the property orders were unfavourable to the wife and that that was a matter that the Court must take into account in determining the issue of hardship, or at least one of the matters which the Court must take into account in that context. His Honour found that there was no "compelling evidence" of the extent to which, if at all, the appellant was unable to provide for herself or the children living with her, to the extent that she suggested that it either caused financial hardship or that the children were actually disadvantaged by reason of her inability to spend more time with them.
34. Reference was made to the appellant's claims in relation to reduced standard of living. His Honour then turned specifically to the question of hardship and did not find on the evidence that the appellant was "unable to support herself adequately by reason of the matters set out specifically in s 72 or for any other reason having regard to the matters in s 75(2)".
35. His Honour then dealt with a number of specific submissions about the capacity of the appellant to continue to work at the level at which she alleged that she was, and turned specifically to deal with the claims as to the manifestly unfair nature of the property settlement determination. He also dealt with the children's living arrangements, and to a particular issue which is discussed at paragraph 60 which was, on the evidence before him, contrary to the submission made by the appellant's learned counsel, open to him that the decision made by the child to live with his father was not financially motivated but occurred for other reasons.
36. The respondent husband had been cross-examined in relation to the issue. As noted earlier, this complaint did not find expression in any of the grounds of appeal nor in the context of any ground of appeal in the course of submissions in support of those grounds of appeal when they were made in writing. Objectively, as will be seen, whether or not that finding was open to the learned Federal Magistrate is not a matter which assumes significance in this appeal.
37. The learned Federal Magistrate made findings of fact in relation to the appellant's current work regime. None of those findings of fact has been challenged in this appeal and the evidence which the Court has reviewed suggests that that was sensibly so.
38. In paragraph 62 his Honour referred to what, on a reading of the totality of the transcript, seems to have really been the nub of the case, although, as is clear from a reading of paragraph 62, in terms of the applications before him that was not part of the proceedings.
39. His Honour went on to deal with that topic in some detail. He concluded (paragraph 64) that:
... the property settlement which took place in 2001 was not now a matter which can be the subject of an overall consideration of the hardship the wife asked him to take into account in considering whether she can bring a claim for spousal maintenance. There is no nexus between the two.
40. Learned counsel for the appellant contends the contrary in his written outline of submissions. That contention will be dealt with in due course.
41. Similar observations apply to the alleged representations or promises. His Honour referred to the obligation to have regard to the earning capacity of the wife. He found that there was not a reasonable claim to be heard. With respect to counsel for the appellant that, and adopting his terminology, is setting the bar at as low a level as one realistically could, given the authorities.
42. His Honour found on the appellant's own evidence that she would fail if her application were determined. His reasons for so doing could not have been more clearly expressed, finding as he did, on the appellant's own evidence, that after disregarding income, which may have been properly quarantined but by no means necessarily was, and disregarding capital which had been accumulated, there remained on the appellant's own claims with respect to expenditure a surplus of not less than $2346.70 per annum. It is to be remembered that none of the expenses claimed by the appellant had been tested before the learned Federal Magistrate. He accepted, as was open to him to do and which clearly was potentially favourable to the appellant, the reasonableness of her expenses for the purpose of determining the proceedings. Having concluded, as the learned Federal Magistrate recorded, it became unnecessary to then consider whether leave should be granted, or to direct his attention to any discretionary power, such as the explanation of delay.
THE GROUNDS OF APPEAL
43. In his written comprehensive and carefully reasoned outline of submissions, learned counsel for the appellant under the heading "The appellant's argument", addresses what are the real matters of complaint in the appeal. It is correct, as learned counsel for the respondent says in his written submissions, that the outline does not strictly speaking follow the grounds of appeal as they appear in the Notice of Appeal. It is, however, convenient to approach the matter via the outline of argument made on behalf of the appellant.
44. It was submitted (paragraph 4.8 and following) that the appropriate test should have been whether the appellant had a prima facie case for maintenance. It was submitted that this required his Honour to view the evidence of the appellant at its highest and see whether she was able to establish a claim for spousal maintenance. Accepting, for the purpose of this appeal, but expressing no concluded view on the extent to which hardship means and can only mean “prima facie case”, what his Honour did in this case, as the figures make clear, is accept what the appellant herself claimed her expenses to be.
45. His Honour did not seek to reduce those in any respect. To the extent that he disregarded what the appellant asserted to have been a recurring expense, he was, on the evidence, justified in doing so. Indeed, it could be argued by the respondent to this appeal that on the appellant's own evidence, for the learned Federal Magistrate to have had regard to $22,000 approximately of capital expenditure incurred prior to 30 June 2004 would have been to err.
46. The learned Federal Magistrate addressed two issues of a prima facie case basis. They were firstly, what were the reasonable needs of the appellant. The second point was what was her reasonable capacity to meet those needs. His Honour made a finding that the appellant had a surplus, after adjustments which he made and which have been referred to, of between $40 and $50 a week on her own expenses. To the extent that the appellant asserted that she was working unreasonable hours to bring about that level of income, his Honour found those claims not to have been made out.
47. No challenge to those findings of fact has been successfully agitated in this appeal. To the extent that his Honour was urged to accept that the appellant's capacity was other than that which he had been demonstrating, those findings of fact have not been successfully challenged. With great respect to counsel for the wife, it is quite clear that one looks at relevant s 75(2) factors in the course of determining whether there is made out a prima facie case for spousal maintenance. No relevant s 75(2) factor was overlooked by his Honour.
48. In this case, on the evidence before him, it was clearly open to the learned Federal Magistrate to conclude on the findings of fact he made that there was not established a prima facie case for maintenance. With great respect, to grant leave in circumstances where, on the applicant's own case, the matter would stop at the prima facie level, would be to countenance an abuse of Court processes, and this his Honour would not do.
49. With respect to learned counsel for the appellant, the very thing complained of in paragraph 4.10 as being the obligation of the learned Federal Magistrate, is what his Honour did. That is, he viewed the evidence of the appellant at its highest in order to determine whether she was able to establish a claim for spousal maintenance. With great respect to learned counsel for the appellant, if the purpose of going through, as his Honour did so carefully and accurately, the figures put forward by the appellant herself were not to determine whether she had a prima facie case, one must wonder what other possible relevance they would have had.
50. His Honour, with respect, did not proceed on the basis that the appellant had to demonstrate that she would probably succeed or that she was likely to succeed. It never got to that because, on the figures, to use the colloquial, she could not get to first base. Given that the wife could not prove a prima facie case, her case was, as his Honour correctly found, bound to fail if leave were granted.
51. At paragraph 4.13 a series of matters are set out with references to the evidence of the appellant. The argument, which is not without sophistication but, with respect, does not have corresponding merit, is that the learned Federal Magistrate erred in not having regard to all of those factors. The nexus is said to be via s 72 to invoke s 75(2). Literally, it is clear, as s 72(1) makes clear, that spousal maintenance claims are determined having regard to any relevant matter referred to in s 75(2).
52. It is abundantly clear that spousal maintenance claims are not an avenue of redressing an unfair settlement of property, nor is a spousal maintenance claim an avenue for circumventing the provisions of the child support legislation. With the greatest respect to the ingenuity of learned counsel for the appellant, why the wife ceased to work during the course of the marriage, what illnesses she suffered during each of her pregnancies and the various matters therein referred to, could have no bearing in the circumstances of this case on whether or not leave to apply for spousal maintenance out of time could or should have been granted.
53. At the risk of appearing to adopt a simplistic approach, the appellant presented a case the factual basis of which his Honour accepted. That case itself demonstrated that the appellant was not able to satisfy the threshold requirement of s 72. She could not demonstrate that she was unable to support herself adequately without an award of spousal maintenance by reason of any of the factors referred to in s 72.
54. Turning then to the supplementary argument, the matters there agitated have largely been dealt with, but some observations in relation to the particular matters raised are appropriate and warranted given the research and diligence of learned counsel for the appellant who, it must be said, has both at trial and in this appeal, put forward everything that could conceivably have been urged on behalf of his client. To the extent, as appears, at least to some extent, to be the case, the appellant, in seeking spousal maintenance, was endeavouring to redress or even rely upon an unfair settlement of property that, with respect, was not a matter to which his Honour, in proceedings under s 44, was obliged to have regard.
55. His Honour’s observation at paragraph 64, was, on the evidence before him, well open to him to make. To the extent that, although not so stated, the appellant's claim was influenced by some perceived inadequacy of periodic funding to meet children's expenses, that too was not a matter which could necessarily be relied upon in the proceedings before his Honour.
56. If the appellant has a case for relief in relation to the settlement of property s 79A of the Act is the context within which any such claim would need to be agitated. To the extent that she has a grievance in relation to child support matters, the child support legislation provides the context within which those matters might be raised. None of this, it should be said, is recorded to in any way suggest or encourage any such actions, but simply to record that the learned Federal Magistrate was correct in approaching the matter in the way in which he did.
57. At paragraph 5.8 the supplementary submissions seek to raise some six particular matters, none of which, with respect to counsel for the appellant, could impact upon the determination of spousal maintenance proceedings. The law is quite clear and the authorities over the past 30 years leave no doubt, that the process of determining a spousal maintenance claim is, firstly, to determine the reasonable expenses of the claimant. Next, having regard particularly to the prescriptive terms of s 72, the reasonable capacity of the claimant to meet such expenses having regard to the three categories of fact referred to in s 72 then, in the event of a prima facie case being made out, to turn to examine the capacity of the respondent to the claim to meet such claim, and finally, to determine what, in all the circumstances, is a reasonable order to be made.
58. No part of that exercise involves revisiting the fairness or otherwise of a settlement of property or going behind the provisions of a child support assessment save to the extent that s 75(2)(na) would permit the Court to do so. It is correct that as was submitted by learned counsel for the appellant the entitlement to seek spousal maintenance may arise years later. The legislation clearly envisages that but all a Court can do, as the learned Federal Magistrate did in this case, is deal with a claim as and when it is raised on the evidence as presented. It is thus, with respect to learned counsel for the appellant, not open in this Court for the appellant to claim that the learned Federal Magistrate erred in finding that the appellant had not established that her case was sufficiently strong to suggest that she would suffer hardship if leave were not granted.
59. Apart from the matters specifically referred to, the learned Federal Magistrate's reasons for judgment have the very considerable attraction of according with common sense. Section 72 of the Act has been passed into legislation in the terms recorded earlier because so doing reflected the legislative intention that spousal maintenance be awarded if, and only if, a claimant could demonstrate a relevant incapacity.
60. The plain fact of this matter is that, notwithstanding capital expenditures over a period, and quarantining a sum of money which whatever its legal status was still money available to the appellant for her use, she still had, on her own figures, a surplus of between $40 and $50 per week. Common sense suggests that to allow proceedings to go forward against that background, under the provisions of a statute drafted in the terms in which s 72 appears, would be, with great respect to all concerned, an exercise in futility and a quite expensive one for both parties.
61. The question of delay does not arise in this appeal given the Court's conclusions that none of the challenges to the earlier reasons for judgment of the learned Federal Magistrate has merit. The Court simply records that, which did not become the case, if the issue had turned upon the exercise of discretion, nothing to which this Court has been directed suggests that it was not reasonably open to the learned Federal Magistrate to exercise the discretion in the way in which he did.
62. Regrettably for the appellant, the effect of these conclusions, notwithstanding the thorough and comprehensive energies of her learned counsel, is that the application for leave to appeal and/or the appeal must be dismissed and will be.
COSTS
63. The questions of costs arises. Learned counsel for the respondent, the Court suspects even from as far away from Cairns as Newcastle, sensed which way the wind might be blowing and submitted that, whilst his client sought an order for costs of the appeal against the appellant if it were dismissed, he made no submissions in support of that application. With respect to counsel that was, in the circumstances of this case, an entirely proper stance for counsel to take and the Court commends counsel for doing so.
64. Whilst the appeal has failed and can thus be said to have been wholly unsuccessful, that concept in the Appeal Court loses some of the significance it has at first instance because, objectively, appellants are either wholly successful or wholly unsuccessful in an appeal such as this. There were only ever two outcomes.
65. The Court is not satisfied, despite the lack of merit in the appeal, that this was a hopeless appeal which should never have been prosecuted. The Court understands, to use the colloquial, where the appellant is coming from and, whilst not finding merit in the submissions in support of her claim, is by no means persuaded that she was not justified in testing the decision of the learned Federal Magistrate in the Full Court. What is decisive of the issue of costs is the very substantial disparity in the financial positions of each of the parties as the learned Federal Magistrate found and recorded in his reasons for judgment.
66. The relevant paragraphs, as noted earlier, are 43, 44, 45, with respect to the respondent. In the case of the appellant, 27 and perhaps, most relevantly, 33, where the net surplus is recorded. The Court, in the circumstances, is not of the opinion that a costs order should be made.
67. The orders of the Court are thus that the appeal and/or application for leave to appeal be dismissed, and that there be no order for costs.
I certify that the preceding
67 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 19/07/06
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Costs
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Appeal
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