Garapiperis and Kasiopoulos (Costs)
[2013] FamCAFC 55
FAMILY COURT OF AUSTRALIA
| GARAPIPERIS & KASIOPOULOS (COSTS) | [2013] FamCAFC 55 |
| FAMILY LAW ─ APPEAL ─ COSTS ─ Where the wife’s appeal was “wholly unsuccessful” ─ Where the wife’s resistance to the husband’s application for costs was focussed primarily on the husband’s earning capacity being significantly greater than that of the wife ─ Where it was submitted on the husband’s behalf that his stronger financial position ought not disincline the Court to form the opinion that the circumstances justified a costs order being made in his favour ─ Where the Court was of the opinion that the circumstances justified making an order for costs in favour of the husband ─ Appellant wife ordered to pay the respondent husband’s costs of and incidental to the appeal as agreed or assessed on a party and party basis. |
| Family Law Act 1975 (Cth) s 117(2A)(f) |
| APPELLANT: | Ms Garapiperis |
| RESPONDENT: | Mr Kasiopoulos |
| FILE NUMBER: | SYC | 6432 | of | 2008 |
| APPEAL NUMBER: | EA | 96 | of | 2011 |
| DATE DELIVERED: | 15 April 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Thackray & Stevenson JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 July 2011 |
| LOWER COURT MNC: | [2011] FamCA 634 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Givney |
| SOLICITOR FOR THE APPELLANT: | Vizzone Ruggero & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Hodgson |
| SOLICITOR FOR THE RESPONDENT: | Hancock Alldis & Roskov Lawyers & Notaries Public |
Orders
The appellant wife pay the respondent husband’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garapiperis & Kasiopoulos (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 96 of 2011
File Number: SYC 6432 of 2008
| Ms Garapiperis |
Appellant
And
| Mr Kasiopoulos |
Respondent
REASONS FOR JUDGMENT
COSTS
Consequent upon the Court delivering judgment on 8 October 2012 dismissing the wife’s appeal against Loughnan J’s refusal to make an order for costs in the wife’s favour with respect to the substantive proceedings determined by his Honour, the husband, the successful respondent to the appeal, sought an order for the costs of the appeal.
The basis of that application was articulated in written submissions filed by the husband’s attorneys on 29 October 2012. By written submissions filed on her behalf on 19 November 2012, the unsuccessful appellant wife resisted the husband’s application. Regrettably, the necessity for one member of the Court to take extended long leave has delayed the delivery of judgment in relation to the costs dispute.
As is clear from the written submissions on his behalf, the husband’s costs application is based essentially on the wife having been “wholly unsuccessful” in her challenge to Loughnan J’s refusal to make an order for costs of the substantive proceedings in her favour.
It was submitted on the husband’s behalf that his stronger financial position ought not disincline the Court to form the opinion that the circumstances justified a costs order being made in his favour. In that context, reliance was placed upon the substantial property settlement award received by the wife.
Sensibly in the circumstances, the wife’s resistance to the husband’s application for costs was focussed primarily on the undoubted reality that the husband’s earning capacity is significantly greater than that of the wife, and likely to be so in the future, and that the wife continues to care for the two younger children of the marriage.
It was further submitted on behalf of the wife that:
4.Although the Appellant was unsuccessful in respect of the costs argument it is clear that the offers of settlement made by the Appellant if had been accepted by the Respondent would have saved both parties the significant costs of legal fees and placed the Respondent in a similar position to that which was ordered by Judicial Registrar Johnston [as he then was].
We presume the offers of settlement referred to in this submission were offers made in the proceedings at first instance. However, we have not seen any offers to settle the appeal proceedings, and in our view it would only be such offers which would be relevant for the purposes of s 117(2A)(f) of the Family Law Act 1975 (Cth).
As the authorities make clear, the wife’s prospects of successfully challenging the trial Judge’s decision in relation to the costs of the substantive proceedings were problematic, and should have been known to be so. Whilst the wife was entitled to pursue her appeal, the risk of being ordered to pay costs if, as transpired, the appeal was unsuccessful, was significant. The husband ought not be disentitled to a costs order on that basis.
The Court is of the opinion that the circumstances justify making an order for costs in favour of the husband. The wife’s appeal was “wholly unsuccessful”. As it was submitted on the husband’s behalf, the wife received a substantial property settlement pursuant to the trial Judge’s orders.
We are satisfied that an order for costs on a party and party basis is appropriate and will so order.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray & Stevenson JJ) delivered on 15 April 2013.
Associate:
Date: 15.04.2013
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