GRESHAM & GRESHAM
[2020] FamCAFC 135
•4 June 2020
FAMILY COURT OF AUSTRALIA
| GRESHAM & GRESHAM | [2020] FamCAFC 135 |
| FAMILY LAW – APPEAL – PROPERTY – COSTS – Appeal against spousal maintenance orders – Where the respondent husband conceded the appeal – Error established – Appeal allowed – Orders set aside – Matter remitted – Written offers made prior to the appeal – Where the husband has been wholly unsuccessful – Where the husband is in a strong financial position – Husband to pay the appellant wife’s costs of and incidental to the appeal in a fixed sum. |
| Family Law Act 1975 (Cth) s 117(2A) |
| Bevan and Bevan (1995) FLC 92-600; [1993] FamCA 95 |
| APPELLANT: | Ms Gresham |
| RESPONDENT: | Mr Gresham |
| FILE NUMBER: | SYC | 7914 | of | 2016 |
| APPEAL NUMBER: | EAA | 119 | of | 2019 |
| DATE DELIVERED: | 4 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Watts JJ |
| HEARING DATE: | 21 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 October 2019 |
| LOWER COURT MNC: | [2019] FamCA 707 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPELLANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | Watson & Watson Solicitors |
Orders
The respondent husband pay the appellant wife’s costs of and incidental to the appeal fixed in the sum of $37,178.41 within 42 days of the date of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gresham & Gresham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 119 of 2019
File Number: SYC 7914 of 2016
| Ms Gresham |
Appellant
And
| Mr Gresham |
Respondent
REASONS FOR JUDGMENT
On 11 October 2019, a judge of the Family Court of Australia made final property settlement orders in proceedings between Ms Gresham (“the wife”) and Mr Gresham (“the husband”). During the appeal hearing, the husband agreed that the appeal should succeed, the primary judge’s orders be set aside and the property settlement proceedings between the parties be remitted to a judge other than the primary judge. On 21 May 2020, those orders were made.
The wife sought an order for costs against the husband and, if the Court was of the view that no order as to costs should be made inter partes, then each party sought a costs certificate in relation to the appeal and any rehearing. The question of costs was reserved.
It is useful to give some context to the question of costs and to the appeal generally to illustrate the orders which we have made and our decision as to costs.
As well as the property settlement proceedings between the parties, before her Honour was the wife’s application for spousal maintenance. Her Honour at [164(d)] said in considering the justice and equity of the property settlement orders that she proposed to make:
The wife will receive an additional 10% of the net value of the liquid assets having regard to her needs under section 75(2) of the Family Law Act 1975 as spouse [sic] who at this time is unable to support herself adequately and is undergoing re-training. From the Australian property this is potentially $498,000, and as best I am able for the English properties potentially some $30,000 a total potentially of $528,000. This is equivalent to 12 months of spousal maintenance at $1,000 a week paid in a lump sum…
Her Honour’s treatment of the wife’s spousal maintenance entitlement gave rise to the wife’s principal challenge to the orders and the husband’s concession of that error led to the orders allowing the appeal.
Her Honour was obliged first to conclude the adjustment of property as between the parties before turning to the question of whether the wife could, as she asserted, not support herself adequately. As long ago as 1993, the Full Court in Bevan and Bevan (1995) FLC 92-600 at 81,979 said:
The liability of a party to a marriage to pay spousal maintenance to the other stems from s 72 of the Act. The prerequisites are, that the party called upon to pay is reasonably able to do so and that the other party is unable to support himself or herself adequately. This may be, by reason of having the care or control of a child under the age of 18 years, by reason of age or physical or mental incapacity for appropriate gainful employment or, for any other adequate reason.
Section 74 enables the Court to make such order as it considers proper and it is further required to take into account the matters referred to in s 75(2).
The relevant sub paragraph of s 75(2) for present purposes, is s 75(2)(n), which provides that the Court shall have regard to the terms of any order made or proposed to be made under s 79 in relation to the property of the parties.
In the present case it is clear that his Honour did not pay regard to the terms of the order which he proposed to make under s 79 and thus fell into error…
(Citations omitted)
Her Honour was bound to consider not only the wife’s needs having regard to the property settlement orders to be made but also the husband’s capacity to pay any ordered spousal maintenance. Her Honour did not. The error too was compounded by the frank mathematical error in her Honour’s calculation of the conversion of a lump sum to weekly spousal maintenance.
Thus the appeal was allowed.
Turning then to the question of costs. The wife sought an order that the husband pay her costs of and incidental to the appeal on the basis that the husband’s opposition to the appeal was unreasonable and the appeal has, in the result, been wholly successful. While it could not be said that the other contended grounds of appeal were unassailable, the error to which we have referred was fatal to the orders made by the primary judge and, in our view, lays the ground for an application for costs by the wife.
On 7 May 2020, the husband offered to settle the appeal on the terms of the orders made by the Full Court on 21 May 2020, that is, that the appeal be allowed, the orders of the primary judge be set aside, and the proceedings be remitted for rehearing. The written offer proposed that each party pay his or her own costs of the appeal. On 14 May 2020, the wife responded agreeing that the appeal be allowed, the orders be set aside and the matter be remitted but added three further conditions, one being that the husband pay the wife’s costs in relation to the appeal in the sum of $33,000, that there be costs certificates sought for the appeal and rehearing and further seeking payment of spousal maintenance.
There the matter rested as between the parties.
Having regard to the offers of the husband and the wife (s 117(2A)(f) of the Family Law Act 1975 (Cth)), the sensible and reasonable resolution of the appeal was that it be agreed and that the orders be set aside with the husband to pay the costs of the appeal up to that date. That course would have avoided the costs of counsel in preparing for and appearing at the appeal hearing. Whilst both offers correctly identified the correct outcome of the appeal, the offers as to costs were not realistic. The husband’s offer did not reflect the reality of his position and the wife’s response was neither immediate nor unconditional. Noting that the husband is in a strong financial position (s 117(2A)(a)) and that he was wholly unsuccessful in this appeal (s 117(2A)(e)), we consider that it is appropriate that the husband pay the wife’s costs up to the time of the husband’s offer (7 May 2020). The wife’s costs up to 7 May 2020, outlined in her Amended Schedule of Costs filed with leave on 21 May 2020, are $37,178.41 and there will be an order that the husband pay that sum.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Watts JJ) delivered on 4 June 2020.
Associate:
Date: 4 June 2020
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