Haniyya & Terentiy (No 2)
[2024] FedCFamC1A 1
•18 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Haniyya & Terentiy (No 2) [2024] FedCFamC1A 1
Appeal from: Terentiy & Haniyya [2023] FedCFamC2F 832 Appeal number: NAA 204 of 2023 File number: SYC 759 of 2020 Judgment of: CHRISTIE J Date of judgment: 18 January 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL –COSTS – Where the appeal was wholly unsuccessful – Application for costs by the respondent to the appeal – Where the appellant opposes the quantum of costs sought by the applicant for costs – Where there are justifying circumstances to make a costs order – Where the costs sought are not party/party. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.23 and r 13.53
Cases cited: Markosa & Markosa (2011) 46 Fam LR 598; [2011] FamCA 833
Nada & Nettle (2014) FLC 93-612; [2014] FamCAFC 207
Penfold v Penfold (1980) 144 CLR 311
Haniyya & Terentiy [2023] FedCFamC1A
Number of paragraphs: 27 Date of last submission: 21 December 2023 Date of hearing: Heard in chambers on the papers Place: Sydney Solicitor for the Applicant: Reid Family Lawyers Solicitor for the Respondent: Browns the Family Lawyers ORDERS
NAA 204 of 2023
SYC 759 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR TERENTIY
Applicant
AND: MS HANIYYA
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
18 JANUARY 2024
THE COURT ORDERS THAT:
1.The appellant mother pay the applicant father’s costs of and incidental to the appeal, fixed in the sum of $16,000, within 28 days.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Haniyya & Terentiy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J
On 21 November 2023 I heard an appeal brought from final parenting orders made on 7 July 2023. On 1 December 2023 I delivered judgment dismissing the appeal (Haniyya & Terentiy [2023] FedCFamC1A 210).
At the appeal hearing, the respondent sought that the appellant pay his costs in the event the appeal failed. The respondent foreshadowed that he sought to rely on collateral information in support of his application for costs. The appellant did not resist a costs order in the event of the appeal being unsuccessful but opposed the quantum sought by the respondent. It appeared that the respondent’s schedule of costs did not comply with r 13.53 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules) and included numerous items not pertaining to the appeal.
Accordingly, I made directions for the filing of evidence and written submissions upon receipt of which determination would be reserved.
On 8 December 2023 the respondent made an application for the appellant to pay his costs in the amount of $27,166.80. In support of that application, the applicant relied upon:
(a)The reasons and orders made on 1 December 2023;
(b)An updated schedule of costs;
(c)Notices of Assessment for the previous two financial years;
(d)A Child Support Assessment dated 12 October 2023; and
(e)A letter of offer and a response to same.
On 15 December 2023 the appellant filed submissions arguing that the sum of $12,000 (plus GST) would be a quantum that “would be more objectively reasonable for the work done, on a party/party basis”. In support of those submissions, the appellant relied upon an affidavit and financial statement each dated 15 December 2023 and the schedule of costs filed 10 November 2023.
The applicant for costs elected not to file any submissions in reply.
For reasons that follow, the appellant will be ordered to pay the respondent’s costs fixed in the sum of $16,000.
THE LAW
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs matters of costs. Ordinarily, parties will bear their own costs of the appeal (s 117(1)). If there are circumstances that “justify it doing so”, the court may, in its discretion, depart from the ordinary rule and make such award of costs to a party as it considers just (s 117(2); Penfold v Penfold (1980) 144 CLR 311).
Section 117(2A) of the Act sets out the relevant considerations when determining what costs order, if any, should be made.
It is not necessary for a court to be satisfied that all of the factors enumerated in s 117(2A) of the Act are engaged before an order for costs is made (Markosa & Markosa (2011) 46 Fam LR 598).
CONSIDERATION
Of those circumstances in s 117(2A) of the Act, the applicant for costs relies upon the financial circumstances of the parties, the appellant being wholly unsuccessful in the appeal proceedings, and an offer of settlement.
Neither party was in receipt of legal aid in the appeal proceedings.
The applicant for costs annexed to his submissions his Notices of Assessment from 2022 and 2023, indicating a taxable income of $79,361 and $54,991 respectively.
The appellant asserts in her financial statement that she receives a total average weekly income of $1,173, has weekly expenditure of $1,161 and holds $14,056 in bank accounts ($10,068 being in a bank account in the name of the parties’ child). The appellant’s draft tax return for 2023 indicated a total taxable income of $24,283 and a 2022 tax return indicated a total taxable income of $23,890.
The applicant for costs submits that it is relevant to the appellant’s financial circumstances and capacity to meet a costs order that she has taken two trips to Country G in the last 14 months for various periods of time and has met her costs of the appeal. In any event, any apparent inability to meet a costs order is not a bar to a costs order being made (Nada & Nettle (2014) FLC 93-612).
I accept that the applicant for costs appears to be in a better financial position than the appellant. The appellant does not oppose the making of a costs order notwithstanding the disparity.
It is uncontroversial that the appellant was wholly unsuccessful in the appeal.
The applicant for costs annexes to his submissions a letter of offer from his solicitors dated 27 October 2023:
(a)Proposing that Order 6(d) of the final orders (which provided that the child spend time with the mother “[e]ach year for [Lunar] New Year, at times to be agreed”) be replaced with an order that specified the time the child would spend with the mother on Lunar New Year; and
(b)Offering to consent to Order 6 sought by the appellant, which provided that each parent would be entitled to attend extra-curricular school sporting and cultural activities for the child irrespective of in whose care the child is on that day. The applicant for costs asserted this (if accepted) would have caused Ground 2 of the appeal to fall away.
The appellant on 30 October 2023 declined the offer and her legal representative advised the applicant for cost’s legal representative:
I do not agree that ground 2 “falls away”. Rather, the parties would consent to the appeal being allowed as to ground 2 and to having orders 5 and 6 of the Amended Notice of Appeal made.
The applicant for costs submits that the appellant “made no genuine attempt to resolve any aspect of the Appeal, notwithstanding being put on notice by the Respondent that the Appeal had no merit”. I am unable to find that the appellant made no genuine attempt to resolve any aspect of the appeal. However, I accept that an offer of compromise was made by the father which, if accepted by the mother, would have seen her obtain at least one order that she sought. As it eventuated, the appellant obtained no order that she sought and was wholly unsuccessful.
I note that nothing should prevent that parties from reaching agreements about specific time with the child on Lunar New Year or attendance at extra-curricular activities regardless of the outcome of this appeal.
In circumstances where the appellant does not resist the making of a costs order, does not appear unable to meet a costs order and was wholly unsuccessful, I am satisfied that there are justifying circumstances to depart from the ordinary rule and make a costs order in favour of the respondent to the appeal.
At the hearing of the appeal, I raised that the schedule relied upon by the applicant for costs did not appear to comply with r 13.53 of the Rules and appeared to be solicitor/client costs rather than party/party costs. That itemised schedule included total (estimated) costs to be incurred of $28,762.20. The amended schedule of costs annexed to submissions indicates total costs of $27,166.80. The amended schedule does remove some items not relevant to the appeal included in the previous schedule but otherwise contains items that do not appear to properly be party/party costs, such as correspondence with the applicant.
Quite unusually, and where neither party briefed counsel, the costs of the respondent to the appeal are approximately $8,700 greater than that of the appellant, who had the greater task in the proceedings.
The applicant for costs itemises the reading of the transcript as $7,303.31 or to be determined pursuant to the discretion provided for in r 12.23 of the Rules. The transcript ran for 216 pages and where the same solicitors appeared at first instance the lesser scanning rate is, as the appellant submitted, a more reasonable sum.
Finally, the applicant for costs asks that I take into consideration under s 117(2A)(g) the fact that the respondent incurred legal fees and disbursements at first instance for which he did not seek a costs order in his favour and that he was not in receipt of legal aid; whereas the appellant was, at a time, in receipt of a grant of legal aid and, at another time, was self-represented. The decision of the respondent not to seek costs of the trial is not a matter which further persuades me in respect of the making of an order or its quantum.
It is within my discretion to order costs in a fixed sum. Taking all the above matters into account, I will order that the appellant pay the respondent’s costs of and incidental to the appeal in the fixed sum of $16,000. I will order that the sum be paid in 28 days.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 18 January 2024
0
2
2