Grace & Grace
[2021] FamCAFC 5
•3 February 2021
FAMILY COURT OF AUSTRALIA
Grace & Grace [2021] FamCAFC 5
Appeal from: Grace & Grace [2020] FCCA 977 Appeal number(s):
SOA 42 of 2020
File number(s):
MLC 11376 of 2009
Judgment of:
AINSLIE-WALLACE J
Date of judgment:
3 February 2021
Catchwords:
FAMILY LAW – APPEAL – COSTS – Wholly unsuccessful – Offer in writing – Financial circumstances – – Conduct of the respondent mother – Mother to pay the appellant father’s costs of the appeal.
Legislation:
Family Law Act 1975 (Cth) s 117
Cases cited:
Grace & Grace (2020) FLC 93-996; (2020) FLC 93-996
Lenova & Lenova (Costs) [2011] FamCAFC 141
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Division:
Appeal Division
Number of paragraphs:
22
Place:
Heard in Chambers by way of written submissions, delivered in Sydney
Counsel for the Appellant:
Ms Renwick
Solicitor for the Appellant:
Coote Family Lawyers
Counsel for the Respondent:
Dr Smith
Solicitor for the Respondent:
Clancy and Triado
ORDERS
SOA 42 of 2020
MLC 11376 of 2009APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR GRACE
Appellant
AND: MS GRACE
Respondent
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
3 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The mother pay the father’s costs of and incidental to the appeal fixed in the sum of $14,207.23 within twenty-eight (28) days of the date of these orders.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grace & Grace has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
On 28 April 2020 a judge of the Family Court made interim parenting orders in proceedings between Mr Grace (“the father”) and Ms Grace (“the mother”).
On 19 November 2020 this Court allowed the appeal brought by the father, set aside the orders made by the primary judge and remitted the matter to the Federal Circuit Court to be heard by a judge other than the primary judge.
At the conclusion of the appeal hearing the parties were invited to make submissions as to the question of costs to avoid the trouble and expense of a further hearing. However, the parties sought, and orders were made, that each would provide written submissions on the question of costs. The father seeks that the mother pay his costs of and incidental to the appeal in the sum of $14,207.23. The mother opposes the making of such an order.
SHOULD A COSTS ORDER BE MADE?
An order for costs in Family Court matters is governed by s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) which sets out the general principle that each party should be responsible for his or her own costs. However, where the Court is of the view that circumstances justify the making of a costs order, then such an order may be made taking into account the relevant matters contained within s 117(2A) of the Act.
It is plain that s 117(2A) does not prescribe that more than one factor must be present or that any one factor has more or less weight than any other. They are each and all matters which inform the overall discretion inherent within the section. Rather, it is a matter of weight that is accorded to each of the relevant factors in the Court’s discretion (see Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24]).
The father relies on a number of subsections of s 117(2A) in support of his application.
Wholly unsuccessful – s 117(2A)(e) of the Act
The father was wholly successful in the appeal. It was not disputed that the mother’s opposition to the appeal had been wholly unsuccessful. Rather instead, it was argued that this was not determinative of the decision as to whether an order for costs should be made. The mother argued that the error on which the appeal succeeded was one made by the primary judge and it could not be said (nor was it contended by the father) that any conduct of the mother’s counsel at trial led her Honour into error.
That there was an error led to the success of the appeal. It is not necessary for there to be conduct on behalf of the unsuccessful party which has led the primary judge to error, for there to be an order for costs.
It was further argued for the mother that she was entitled to rely on the judgment of the primary judge and make arguments on the merits of the appeal. That is indisputable, however, that right, and that election, requires an assessment of whether the appeal is meritorious and leaves open the prospect of the resistance of the appeal being “wholly unsuccessful” and being a factor to be taken into account in considering costs.
Offer in writing – s 117(2A)(f) of the Act
It was not in contention that in May 2020, the father’s solicitors wrote to those acting for the mother, offering to resolve the appeal by the mother conceding the appeal and consenting to the primary judge’s orders being set aside, the parties to have time to file further material in support of their contended positions and there be no order as to costs.
A copy of the transcript of the proceedings concerned with the appeal was included with the offer.
The mother made no response to the letter of offer.
For the mother it was argued that the letter was not an “offer” but rather a “request for total capitulation” and it was said that the offer was merely to seek the orders set out in the Notice of Appeal filed on 26 May 2020 (mother’s written submissions as to costs filed on 10 December 2020 at paragraphs 12 and 14).
It is incorrect to cast the offer as a request for total capitulation because it was not. It offered the prospect of the appeal being allowed by consent without the spectre of a costs order if that was the ultimate finding on the appeal. The position facing the mother and those advising her in relation to the appeal was clear and binary. Either the appeal succeeded and the interim orders were set aside or it failed and the interim orders remained on foot.
As is clear from the reasons on the appeal (Grace & Grace (2020) FLC 93-996), the transcript of the proceedings before the primary judge showed the error and how it came about. Those advising the mother being in possession of the transcript were able to make an assessment of whether there was merit in the appeal.
The mother chose not to respond to the offer. In the circumstances, that was imprudent.
It was submitted for the mother that she did nonetheless “engage” with the Notice of Appeal by offering some change to the time arrangements between the father and the child. That she and the father attempted to settle interim parenting orders does not, in my opinion, alter the consequences of failing to accept the father’s offer in relation to the appeal.
The parties’ financial circumstances – s 117(2A)(a) of the Act
The father submitted that his income is of the order of $595 per week; that his child support obligations exceed his income and his present wife provides the difference between his income and living expenses. On the other hand, the mother was said to have an income of which the father was unaware. In response, it was said that the mother was working as a tradesman and earning about $34,417 per annum together with commission of between $4,000 and $5,000 per year.
For the mother it was argued that the parties’ financial circumstances do not justify a costs order of themselves. That is true (see Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]). However, it was not argued that the mother could not pay an order for costs should it be ordered.
Conduct of the mother in the proceedings – s 117(2A)(g) of the Act
The father asserted that the mother failed to file documents in response to those of the father in a timely fashion but rather filed them out of time, five business days before the hearing. It was said that as a result the father had insufficient time to consider them and perhaps file further documents in response.
In her affidavit filed on 3 April 2020 which was before the primary judge, the mother said that she wished to file a fuller answer to the father’s evidence, equally, the father indicated a wish to file further documents in the proceedings. Whatever the state of the evidence, none of that impacted the error which vitiated her Honour’s orders. I do not regard this as being a factor relevant to the question of costs of the appeal.
CONCLUSION
In all of the circumstances, I am of the view that the mother should pay the father’s costs of and incidental to the appeal in the sum of $14,207.23.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace.
Associate:
Dated: 3 February 2021
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