HODSON & HODSON - [2015] FamCAFC 87

FAMILY COURT OF AUSTRALIA

HODSON & HODSON

[2015] FamCAFC 87

FAMILY LAW – APPEAL – CHILDREN – Where the father does not pursue the appeal – Costs ordered in favour of the mother and Independent Children’s Lawyer.

Family Law Act 1975 (Cth)

Lenova & Lenova (2011) FLC 93-467

APPELLANT:

Mr Hodson

RESPONDENT:

Ms Hodson

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

SYC

1196

2010

APPEAL NUMBER:

100

2013

DATE DELIVERED:

30 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Murphy & Kent JJ

HEARING DATE:

30 April 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 June 2013

LOWER COURT MNC:

[2013] FamCA 1162

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr R Harper

SOLICITOR FOR THE RESPONDENT:

Delaney Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms K Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Brian Samuel & Associates

Orders

The appeal be dismissed.
The appellant pay the Independent Children’s Lawyer’s costs of and incidental to the appeal in the fixed sum of $2,618.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
The appellant pay both costs orders within six months of the agreement or assessment of the respondent’s costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hodson & Hodson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 100 of 2013
File Number: SYC 1196 of 2010

Mr Hodson

Appellant

And

Ms Hodson

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

KENT J:

By notice of appeal filed on 17 July 2013, Mr Hodson, the father of three children, appealed final parenting orders made by Loughnan J on 21 June 2013 with respect to those children.
At the outset of the hearing of his appeal, Mr Hodson, whom I will refer to as the father, sought to file a further affidavit in the appeal. That affidavit made it apparent, in the discussion that followed about that affidavit (if it were not apparent earlier) that there seemed to have been a misapprehension by the father as to the nature of the appeal process.
It became clear, if it were not already apparent from his grounds of appeal and summary of argument filed in support of those grounds, that the father’s complaint was more to do with whether the orders made by his Honour on 21 June 2013 had proven to have worked well, from the father’s point of view, rather than the father understanding that the appeal process involves an assessment of whether or not any error attended those orders as made by the trial judge.
We afforded the father an opportunity to consider his position, in light of the discussion that took place between the Bench and the father. Sensibly, with respect to him, the father made the decision not to pursue his appeal. In that circumstance, the relevant order should be that the appeal is dismissed.
The respondent to the appeal, Ms Hodson, the mother of the children, whom I will refer to as the mother, and the Independent Children’s Lawyer (“the ICL”), appointed to independently represent the interests of the children in the proceedings, each sought orders for their costs respectively, of and incidental to the appeal.
Counsel for the ICL sought, on behalf of the ICL, a fixed sum in the amount of $2,618.00, which appeared reasonable.
In the case of the respondent mother, an estimate was given of indemnity costs, but no estimate of party and party costs was provided to allow a fixed sum to be ordered.
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
Subject to subsection (2)…each party to proceedings under this Act shall bear his or her own costs.
Subsection (2) relevantly provides that:
If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A)…make such order as to costs…as the court considers just.
Subsection (2A) sets out the relevant discretionary considerations, the first of which refers to the financial circumstances of each of the parties to the proceedings.
We have taken submissions from the bar table from the parties respectively as to their financial circumstances. In the case of the father, he is employed in a position where his average gross annual income is in the order of $52,000.00 and he submits that after paying child support, he is left with a sum in the order of $1,200.00 per fortnight. He resides with his current partner and her three children in their rental accommodation. It is fair to say that his financial circumstances are relatively constrained.
In the case of the mother, she is employed as an administrator now earning $35,000.00 per annum. We received an affidavit filed on 16 October 2013, obviously now some time ago, in support of the mother’s then application for security for costs. We were informed that other than the alteration in her earnings to $35,000.00 per annum that the expenses set out in that affidavit are largely unchanged. Relevantly, Loughnan J had referred, in his reasons for judgment, to the mother’s financial circumstances being significantly superior to those of the father, in terms of meeting the then three children’s needs, so far as schooling and extracurricular activities were concerned. However, it would seem that this was because of the benevolence of the mother’s father in providing her with financial assistance.
Neither of the father or the mother are in receipt of Legal Aid but obviously the ICL is so funded.
The two principal matters relevant in this case under s 117(2A) are, first, whether any party to the proceedings has been wholly unsuccessful in the proceedings (as can be said of the father); and, second, whether any party has made an offer in writing to the other party to settle the proceedings.
On 13 January 2015, the solicitors for the mother wrote to the father, who is self-represented, setting out the mother’s position on the question of costs, and matters relevant to the appeal. The attempt was made in that correspondence to point out to the father the absence of prospects, so far as the father’s appeal was concerned, and invited the father to withdraw his notice of appeal filed 17 July 2013, in which event the mother would not seek an order for costs.
The father responded by email rejecting that offer.
I interpolate here that, earlier, on 4 April 2014, the summary of argument of the mother was filed in the appeal and on 6 May 2014, the ICL’s summary of argument was filed. Plainly, the father had the benefit of those documents well before the subject offer was made in order to consider it and his position.
The summaries of argument respectively address, as it seems to me, the fundamental difficulties in relation to the father’s notice of appeal and his summary of argument, in terms of addressing the point to which I have earlier referred regarding the proper function of the appeal process; and pointed out to the father that many of his grounds of appeal were not in fact grounds of appeal and were unlikely to succeed.
The father’s position today recognises that there was no merit in his appeal.
As has been pointed out in a number of authorities, including that of Lenova & Lenova (2011) FLC 93-467, given the limits in the armoury of litigants in saving themselves from substantial expense, faced with an unmeritorious application or appeal, the usual rule, as it is sometimes called, of parties being responsible for their own costs may readily give way when an offer of compromise is made. In this case, the mother sought to address that by the correspondence referred to dated 13 January 2015.
It may also be observed in relation to the father’s circumstances that impecuniosity, of itself, is not a bar to an order for costs if otherwise the circumstances sufficiently dictate the conclusion that there are justifying circumstances, within the meaning of s 117(2) of the Act, for an order for costs to be made.
In my judgment, there are, for the reasons stated, justifying circumstances here, within the meaning of s 117(2) of the Act, for orders for costs to be made in favour of each of the ICL and the mother.
I would therefore order:
(1)That the appeal is dismissed.
(2)That the father pay the ICL’s costs, fixed in the sum of $2,618.00.
(3)That the father pay the mother’s costs of and incidental to the appeal, to be agreed or failing agreement, to be assessed on a party and party basis.
I would only add that in relation to the father’s constrained financial circumstances, there ought be some time given to the father to meet the orders for costs and without the imposition of interest upon any sum and, for myself, I would be satisfied, in circumstances where the child R is turning 18 in November; and it would seem only the child W will then continue to be the subject of any child support assessment; that the father should have six months to meet the costs orders that are made. To that end, I would add to the orders that I have just expressed an order to the effect that the father have six months from the date of agreement or the date of assessment of the mother’s costs to meet payment of both costs orders.

MURPHY J:

I agree with each of the orders proposed by his Honour. I agree with his Honour’s reasons and have nothing to add.

AINSLIE-WALLACE J:

I too agree with his Honour’s reasons and, therefore, the orders of the Court will be as follows:
(1)The appeal be dismissed.
(2)The appellant pay the Independent Children’s Lawyer’s costs of and incidental to the appeal in the fixed sum of $2,618.
(3)The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
(4)The appellant pay both costs orders within six months of the agreement or assessment of the respondent’s costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy & Kent JJ) delivered on 30 April 2015.

Associate:

Date: 25 May 2015