Harrell & Nesland (Costs)
[2016] FamCAFC 228
•9 November 2016
FAMILY COURT OF AUSTRALIA
| HARRELL & NESLAND (COSTS) | [2016] FamCAFC 228 |
| FAMILY LAW – APPEAL – COSTS – where the appeal was successful – where the appellant sought an order for costs, or in the alternative, a certificate – where the respondent sought costs with respect to the successful Application in an Appeal and a certificate for the costs of the appeal – where the appeal succeeded on the basis of errors on behalf of the trial judge – where there are no circumstances to warrant a departure from the principle that each party bear their own costs – applications dismissed. |
| Family Law Act 1975 (Cth) s 90SF(3), s 117(1) and s 117(2A)(e) Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Ms Harrell |
| RESPONDENT: | Mr Nesland |
| FILE NUMBER: | BRC | 6489 | of | 2012 |
| APPEAL NUMBER: | NA | 30 | of | 2015 |
| DATE DELIVERED: | 9 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy, Aldridge & Cronin JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 April 2015 |
| LOWER COURT MNC: | [2015] FCCA 732 |
SUBMISSIONS RECEIVED FROM:
| COUNSEL FOR THE APPELLANT: | Mr Pendergast |
| SOLICITOR FOR THE APPELLANT: | Matthew Love Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Hirst, Hirst & Co |
Orders
The application of the appellant (by way of written submission filed 11 August 2016 and 16 September 2016) and the application of the respondent (by way of written submission filed 11 August 2016) are each dismissed.
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 Harrell & Nesland 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 BRISBANE |
Appeal Number: NA 30 of 2015
File Number: BRC 6489 of 2012
| Ms Harrell |
Appellant
And
| Mr Nesland |
Respondent
REASONS FOR COSTS JUDGMENT
Arising out of the Court’s orders on 13 July 2016, both parties seek orders for costs or alternatively, certificates under the Federal Proceedings (Costs)Act1981 (Cth).
The successful appellant seeks an order for costs against the respondent of and incidental to the appeal or in the alternative, costs certificates in respect of the appeal and the consequential rehearing that this Court has ordered.
The respondent seeks costs for his successful Application in an Appeal filed
16 September 2015 wherein he sought that the appellant file a proper summary of argument for the impending appeal. In addition, he seeks the same relief as the appellant in relation to a costs certificate concerning the appeal itself.
In our view, no order as sought by either party should be made.
The appellant’s submissions
The appellant submitted centrally that “the appeal was successful” and secondly, the respondent’s financial circumstances were “far superior” to hers. In addition, it was submitted that the appeal was successful on the basis of errors on the part of the trial judge.
The respondent’s submissions
The respondent submitted that the appeal succeeded solely because of “insufficiency” of reasons by the trial judge. The issue of the disparity of financial circumstances was not addressed.
Discussion
As identified in the Court’s reasons, the appellant conducted the appeal on the basis that the trial judge gave inadequate reasons in respect of:
·Add-backs;
·Non-disclosure of assets by the respondent;
·Contributions;
·Section 90SF(3) consideration; and
·Spousal maintenance.
As the reasons of the Court identified:
· The trial judge’s task in dealing with the “add-backs” was made extremely difficult by the uncertain way in which they were claimed by the appellant;
· It was impossible to determine from the reasons of the trial judge what finding (if any) was made about the respondent’s non-disclosure because no reference was made to that issue by his Honour;
· The main challenge in the area of contribution by the appellant was that the trial judge had failed to take into account her role as a homemaker but on the appeal, the trial judge was shown to have made such a reference and that accordingly, that challenge failed;
·
The inadequacy of the reasons of the trial judge made it difficult to determine what (if any) findings were made about the relevant
s 90SF(3) considerations and accordingly, that assertion as to inadequacy of reasons, was established; and
· In respect of spousal maintenance, the reasons of the trial judge did not adequately explain how he resolved the competing contentions of the parties and as such, it was difficult to discern whether all of the relevant considerations had been taken into account.
The appellant had also filed an amended Notice of Appeal identifying what were said to be mistakes of fact but the submissions did not identify how or why the findings were erroneous nor did they identify which findings of fact or exercises of discretion were in error. There were clearly errors by the trial judge. Equally clearly, neither party assisted his Honour and indeed, contributed to the trial Judge’s difficulties. It could not be said in all of those circumstances that the respondent was wholly unsuccessful (s 117(2A)(e)) nor that the appellant was entirely successful.
In any event, having regard to what we have said, we are not persuaded that there were justifying circumstances to depart from the principle in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) that each party bear their own costs in respect of the appeal.
Certificates
For the same reasons, we are not persuaded that certificates should issue.
The application in an appeal
The respondent also sought costs for the Application in an Appeal filed
16 September 2015.
The respondent submitted that the appellant should pay his costs. The Appeals Registrar made an order for the appellant to file and serve her summary of argument and list of authorities by 21 August 2015. Upon receipt of those documents, the respondent argued they had not satisfied the requirements of the rules or the Registrar’s order. The summary of argument did not set out the arguments relating to the points of law or fact and the relevant authorities relied upon in relation to the grounds of appeal. On 1 October 2015 the Registrar accepted the respondent’s position. However, it was submitted by the appellant that having been alerted to the inadequacy, she had offered to rectify her obligations but the respondent proceeded with the application in any event.
There are no written reasons for the determination by the Registrar. We are unable to determine how much inconvenience or what difficulties in the conduct of the appeal (if any) were caused. The respondent does not seem to dispute that the appellant did offer to rectify the problem. We are not persuaded that there are circumstances justifying an order for costs.
Conclusion
The application of the appellant (by way of written submission filed 11 August 2016 and 16 September 2016) and the application of the respondent (by way of written submission filed 11 August 2016) are each dismissed.
I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Aldridge & Cronin JJ) delivered on 9 November 2016.
Associate:
Date: 9 November 2016
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