Gelbvieh and Senepol (Costs)

[2007] FamCA 1298

FAMILY COURT OF AUSTRALIA

GELBVIEH & SENEPOL (COSTS) [2007] FamCA 1298

FAMILY LAW – APPEAL - COSTS

Family Law Act of 1975 (Cth) s 117(2); s 117(2A)(e); s 75(2)
Federal Proceedings (Costs) Act 1981 (Cth)

Penfold v Penfold (1980) 144 CLR 311

APPELLANT: MS GELBVIEH

RESPONDENT: MR SENEPOL

FILE NUMBER: DNF 144 of 2005

APPEAL NUMBER: NA 52 of 2006

DATE DELIVERED: 1 November 2007

PLACE DELIVERED: PARRAMATTA

JUDGMENT OF: KAY, COLEMAN & WARNICK JJ  

HEARING DATE:  27 November 2006

LOWER COURT JURISDICTION: FAMILY COURT OF AUSTRALIA

LOWER COURT JUDGMENT DATE: 09/06/06

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT: R. Davies

SOLICITOR FOR THE APPELLANT: Janet Terry

COUNSEL FOR THE RESPONDENT: Peter Murphy S.C.

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Cecil Black

Katarzyna Rutkowska

Orders

1. That there be no order for costs of the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Gelbvieh & Senepol.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number:  NA 52/2006
File Number: DNF 144/2005

MS GELBVIEH

Appellant

And

MR SENEPOL 

Respondent

REASONS FOR JUDGMENT (COSTS)

1. On 24 May 2007 the Court dismissed the appellant’s appeal against parenting orders made by Dawe J on 9 June 2006. The Court then ordered that written submissions in support of any application for costs of the appeal be filed and served within 28 days and that written submissions in response to any submissions in support of an application for costs be filed and served within 56 days.

2. On 21 June 2007 written submissions on behalf of the successful respondent to the appeal were filed in the Registry in support of the respondent’s application for an order that the unsuccessful appellant pay his costs of and incidental to the appeal. To date, more than three months since the time for filing such submissions has expired, the Court has not received any submissions from or on behalf of the appellant.

3. The orders sought by the respondent are that the appellant pay his costs of and incidental to the appeal as agreed or, in default of agreement, as taxed. In the alternative, the respondent sought a certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). As the legislation makes clear, a prerequisite to this Court issuing a certificate pursuant to the Federal Proceedings (Costs)Act is that the Court has allowed the appeal. The appeal having been dismissed, no question of the issue of a certificate pursuant to the legislation can arise.

4. It remains to consider the submissions in support of the application for an order that the appellant pay the respondent’s costs of the appeal.

5. The submissions on behalf of the respondent confirm that the respondent continues to be employed as an electrician earning $1150 after tax per week.

6. Counsel for the respondent conceded that the respondent was unaware of the appellant’s financial circumstances, the respondent believing “her income would be about $800 per week before tax”. [Submission for costs on behalf of the Respondent/Father, page 2, par 3(c)].

7. Pursuant to the orders of the trial Judge, which were undisturbed on appeal to this Court, the child of the parties primarily resides with the respondent and spends time with the appellant. The financial arrangements, if any, between the parties for the support of the child were not referred to in the submissions on behalf of the respondent.

8. On behalf of the respondent, reliance was placed upon the fact that the appellant was wholly unsuccessful in the appeal by “a majority of three to none”. [Submission for costs on behalf of the Respondent/Father, page 2, par 5]. The record confirms that the unanimous decision of this Court was that the appeal be dismissed. The appellant was undoubtedly “wholly unsuccessful” within the terms of s 117(2A)(e) Family Law Act 1975 (Cth) (“the Act”).

9. The matters within s 117(2) of the Act which support the making of a costs order are the complete absence of success of the appellant. As against that, on such evidence as there is before this Court, the respondent is in a significantly better financial position than is the appellant, even if, as may be the case, the appellant makes no contribution to the day to day living expenses of the parties’ child.

10. In Penfold v Penfold (1980) 144 CLR 311 the High Court said (at 315):

    Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117(2) in "a clear case".

11. This Court must be of the “opinion” that, by reference to the factors made relevant by s 117(2), circumstances justify the making of a costs order. We do not have the requisite opinion. Objectively, in an appeal such as this, there were only two possible outcomes, they being that the appellant was wholly successful or wholly unsuccessful. That was so because the appeal related to the trial Judge’s decision with respect to the primary residence of the parties’ child.

12. It ought not to be forgotten that, to her credit, subsequent to the commencement of the appeal, but prior to its determination, the appellant agreed to orders to spend time with the child which were acceptable to the respondent and became orders made by consent by this Court.

13. Whilst the appellant was wholly unsuccessful in relation to the issue of the primary residential arrangements for the parties’ child, as our Reasons for Judgment in the substantive appeal would hopefully confirm, the submissions on behalf of the appellant and senior Counsel for the respondent’s responses to them required the Court’s careful consideration.

14. It ought not to be forgotten that Counsel for the separate representative supported the appellant’s challenge to the trial Judge’s conclusions with respect to the primary residence of the parties’ child.

15. Whilst the appeal was unsuccessful, it cannot in our view be fairly suggested that it lacked substance. No other fact or circumstance within s 117(2A) is, or is suggested to be relevant to the exercise of our discretion. For the foregoing reasons, we are not of the opinion that an order for costs should be made against the appellant.

16. The application for such order will accordingly be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  1 November 2007