James & Snipper
[2024] FedCFamC1A 140
•21 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
James & Snipper [2024] FedCFamC1A 140
Appeal from: Snipper & James (No 2) [2023] FedCFamC1F 1043 Appeal number: NAA 5 of 2024 File number: SYC 431 of 2022 Judgment of: TREE, HOGAN & SMITH JJ Date of judgment: 21 August 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Appellant alleges that primary judge erred in finding that there had not been a significant change of circumstances to warrant re-litigation of prior final orders – Appellant further alleges that primary judge erred in awarding costs to the respondent against the backdrop of the appellant’s financial hardship – Primary judge’s decision involved the exercise of discretion – Where it was open to the primary judge to conclude that there had not been a significant change of circumstances – Where it was open to the primary judge to order costs – No error identified – Appeal dismissed – Costs ordered in a fixed sum Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 12, r 12.17 Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 79 Date of hearing: 2 May 2024 Place: Heard in Sydney, delivered in Cairns The Appellant: Litigant in Person Counsel for the Respondent: Mr Dura SC Solicitor for the Respondent: Harris Friedman Lawyers ORDERS
NAA 5 of 2024
SYC 431 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR JAMES
Appellant
AND: MS SNIPPER
Respondent
ORDER MADE BY:
TREE, HOGAN & SMITH JJ
DATE OF ORDER:
21 AUGUST 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant is to pay the Respondent’s costs of and incidental to the Appeal in the fixed sum of $15,000 within 60 days 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 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym James & Snipper has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, HOGAN & SMITH JJ:
By Notice of Appeal filed 3 January 2024 Mr James (“the father”) appeals from two orders made in parenting proceedings by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 6 December 2023 (“the orders”). Ms Snipper (“the mother”) opposes the appeal.
For the reasons which follow, the appeal is dismissed with costs.
BACKGROUND
The father is presently 52 years of age, and the mother is 54. They commenced cohabitation in 1990 and married in 1994. They separated on a final basis in late November 2011 and divorced in 2013. They had three children; the two older children are over 18. This appeal only concerns the youngest child, R (“the child”) who is now 14 years old.
Proceedings first commenced in April 2012. On 3 April 2013 final parenting orders were entered, primarily by consent. Litigation re-commenced in 2015, and there was a 5-day final hearing in July 2017. On 12 January 2018 Watts J of the then Family Court of Australia, delivered written reasons for judgment and entered final parenting orders (“the 2018 orders”).
The father’s appeal against the 2018 orders was dismissed.
The 2018 orders require the child to live with the mother, who was granted sole parental responsibility subject to an obligation to inform and consult. The orders relevantly state:
6. The children shall spend time with the husband and communicate with him as
follows:
6.1.Each alternate Sunday from 9am to Monday morning before school or 9am
…
6.7.In the event that the children are not available to spend time with the husband in accordance with Order 6.1, due to a prior engagement, then the wife shall notify the husband as soon as is practicable but not less than 14 days prior to the date and provide to the husband three dates when make-up time can occur and the husband shall thereafter notify the wife within seven (7) days of having received such notice which of the nominated alternative dates he accepts.
6.8.Upon each of the children attaining the age of fourteen (14) years that child may with the assistance of their counsellor, and thereafter in consultation with the therapist, inform the husband, should the child so wish, of what additional time they may wish to spend with the husband up to the following:
6.8.1.from completion of school Friday to 9am Monday morning in each alternate weekend.
6.8.2.for one afternoon/evening per week.
…
9.The wife shall ensure that the children attend upon a counsellor in accordance with the recommendations of that counsellor but not less that once in each six (6) month period.
In summary, the 2018 orders set out the time the child is to spend with the father (Order 6.1) and provide a mechanism to review that arrangement and increase time, up to a set limit, upon the child turning 14, namely for the child, “with the assistance of” and “in consultation with”, his counsellor to inform the father of his wishes (Order 6.8). There is a mechanism to ensure the child has a counsellor (Order 9). There was also provision, at orders 6.9–6.17, for time on special occasions including Father’s Day and religious holidays.
As the child recently turned 14, Orders 6.6 and 6.8 now apply to him. Taking the father’s evidence at its highest, the mother has not complied with Order 9, so the child does not have a counsellor. A major aspect of the father’s case is that the mother’s non-compliance with Order 9 renders the 2018 orders ineffective, requiring a further hearing.
Next, the mother commenced child support proceedings on 25 January 2022. The father foreshadowed adding parenting orders as early as 8 February 2022, and formally did so on 26 April 2023.
The issue of whether there had been a sufficient change in circumstances to warrant re-litigation of the 2018 orders was heard as a preliminary matter. In that hearing, the mother sought the father’s application for parenting orders be dismissed. The only evidence was from the father. He said that the child wished to take up the maximum time allowed under Order 6.8. The father was not cross-examined. The Court took the father’s evidence at its highest for the purpose of determining the mother’s application to dismiss the father’s application for parenting orders different to the final parenting orders made in 2018, proceeding, for example, to regard the father’s assertions of breaches of those orders as established.
Before the primary judge, the parties agreed the relevant principles were those articulated in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”). There is no submission that the primary judge misstated the relevant legal principles.
The primary judge’s conclusions were:
Disposition
110Accepting the father’s evidence at its highest (and conceded by his counsel), the parties remain in intractable dispute. It is hard to see how another round of litigation would be the panacea for that.
111Again, accepting the father’s material at its highest and on the face of Watts J’s Reasons (which the father read in his case), the level of animosity between the parties makes it a likely prediction that any future litigation will place [the child] front and centre of further contentious litigation.
112That is in circumstances where the father’s Minute seeks only one additional night a fortnight (if he is right on [the child’s] wishes and Order 6.8 applies) and a couple of extra nights in holidays (again if he is right on [the child’s] wishes and holiday time increases as would be the flow on to Order 6.1).
113In short, the gain for the father in litigating for time is minimal. That is cast against the detriment to [the child] of not being able to enjoy the rest of his teen years without again being the subject and object of his parents’ litigation.
114That is against a backdrop where the father has failed to persuade me that there has been a material change of circumstance that would warrant allowing the father’s application to proceed. Being older, having adult siblings, the father’s relationship being established now, are just parts of life. That [Dr Y’s] report is old is just a function of the litigation in which the parties have engaged. I have already rejected the male role model submissions because the father is precisely that. I accept detriment is not determinative but part of the balance I must undertake.
115[The child’s] best interests will be better served by the therapeutic process that Watts J set out in Order 6.8. That will flow onto holidays in Order 6.1 and communication will be at large per Order 6.6.
The appeal challenges Orders 1 and 6 made by the primary judge. Order 1 dismissed the father’s application to vary the 2018 orders in relation to the child. Order 6 requires the father to pay the mother’s costs in the fixed sum of $7,822.53 within 60 days. Those were costs thrown away by reason of an adjournment obtained by the father on 9 November 2023.
THE APPEAL
The primary judge’s decision involved the exercise of discretion. The principles governing appeals from discretionary judgments are settled. In House v The King (1936) 55 CLR 499 (“House v The King”) at 504–505 Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The father bears the onus of establishing relevant error.
Ground 2
It is convenient to deal with Grounds 2 and 3 before Ground 1.
Ground 2 reads as follows:
Her Honour erred in not taking due consideration of the significant breaches by the mother, without any countering correspondence, in evaluating the change of circumstances as per paragraph 33 of the Reasons for Decision dated 6 December 2023 “Reasons”.
The father submitted in his Summary of Argument (Father’s Summary of Argument at [11]–[13] and [19]–[25]), that the primary judge erred in relation to the treatment of the mother’s breaches. This was formulated in various ways, including that the primary judge did not give “due consideration” to the breaches, or in not finding that the breaches “alone represented a significant change.” The father also submitted that the primary judge erred in taking the availability of contravention proceedings into account. He submitted the primary judge treated “contraventions as the only means of addressing” the breaches, which resulted in the primary judge effectively placing “no consideration” on the breaches.
At the appeal hearing the father submitted the primary judge “refers to complaints regarding the breaches. However, these are not mere complaints”, suggesting that the primary judge had not proceeded on the basis that the breaches were established (Appeal transcript 2 May 2024, p.6 line 1).
At [110] the primary judge took the father’s evidence at its highest. She considered the father’s assertions about the mother’s “substantial and ongoing breaches of parenting orders” as set out by the father, at [33].
The primary judge took the availability of contravention proceedings into account when assessing the weight to give to these asserted breaches. That was not the same as giving the asserted breaches no consideration. The father’s counsel conceded before the primary judge that the availability of contravention proceedings was a relevant consideration (Transcript 4 December 2023, p.10 line 17–31). The father is bound by that, appropriate, concession (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
There was no failure by the primary judge to consider the asserted breaches and no error in taking the availability of contravention proceedings into account. To the extent the ground is a challenge as to the weight given to relevant consideration, it is forlorn (CDJ v VAJ (1998) 197 CLR 172 at 230–231 per Kirby J).
Ground 2 fails.
Ground 3
Ground 3 reads as follows:
Her Honour erred in stating that at paragraph 57 of the Reasons (and following), that the mechanism in the Orders dated 12 January 2018 adequately provided for [the child’s] views when in fact no compliance with the provision for counsellors has been met by the Mother since 2017. Her Honour repeated this assertion at paragraph 72 but does not take into account proper consideration of the persistent breaches by the Mother.
Before the primary judge, the father contended that the 2018 orders did not provide an adequate mechanism to determine the child’s wishes or views because the mother has not complied with Order 9.
The primary judge dealt with this submission at [57] and [72]:
57More so, Order 6.8 provides a mechanism for the child’s wishes to be ascertained and conveyed to the father in a therapeutic process. That is precisely one of the things a Family Report would do if the parties were permitted to engage in yet another round of litigation.
…
72The submission in reply about no evidence from the mother in support of Order 6.8 of the 2018 Order is not something that assists me with a material change in circumstance. Order 6.8 is in place, which is to be read with Order 9 of 2018. If the mother breaches that, the father has other options available to him, of which he is well alert when deposing to “Contravention action will be taken”.
The father’s summary of argument repeated his submission before the primary judge and submitted that the primary judge, at [72], gave “no consideration” to the mother’s non-compliance with Order 9.
At the appeal hearing the father referred to the trial transcript where the primary judge asked “[w]hat if I vary order 6.8 to require the mother to do it?” (Transcript 4 December 2023, p.20 line 1). The father submitted the primary judge erred in assuming that that mechanism would take place. However, the transcript shows that the primary judge then further considered the issue and went on to say Order 9 “applies with equal force, if I can word it that way, to 6.8” (Transcript 4 December 2023, p.20 lines 8–9).
The primary judge considered the mother’s asserted breach of Order 9, its effect upon the mechanism in Order 6.8, and the availability of contravention proceedings to enforce Order 9 to give effect to the 2018 orders. This approach was open to the primary judge.
There was no failure to consider any relevant matter, no consideration of any irrelevant matter, and no inconsistency between the primary judge’s statements at trial and her finding at [72].
Ground 3 also fails.
Ground 1
Ground 1 reads as follows:
Her Honour erred in not setting down the matter for full consideration before the Family Court with respect to change of Parenting Orders.
The father submitted the primary judge failed to give adequate weight to the matters he relied upon as establishing changed circumstances.
He further submitted the primary judge’s finding (at [83]) that he was not an unacceptable risk to the child was a substantial change, because the mother argued otherwise before Watts J. However, there is no change as the 2018 orders assume no unacceptable risk.
At the appeal the father took the Court to the various factors the primary judge identified (at [114] and elsewhere), and to various aspects of the evidence before the primary judge which he considered should be given greater weight. The father submitted that “the fact alone that these have changed so considerably gives reason to demonstrate that a serious step change has occurred and that those tests in [Rice & Asplund] have been met” (Appeal transcript 2 May 2024, p.5 lines 43–45).
The father submitted the primary judge erred “in that there is a more than reasonable argument” (Father’s Summary of Argument at [6]) of a significant change. At the appeal he further stated, “that the evidence supported a changed circumstance which would have justified a serious step, and that [the primary judge] erred in not adjudging correctly that the tests in [Rice & Asplund] have been satisfied” (Appeal transcript 2 May 2024, p. 4 lines 15–17).
The father did not establish that the primary judge failed to consider any relevant consideration, took any irrelevant consideration into account or made any error of fact or of law. His submissions all went to matters of weight and discretion.
The existence of a “more than reasonable argument”, assuming that fact for present purposes, does not establish error by reason of the primary judge’s failure to accept that argument in the exercise of her discretion.
To the extent the father intended to submit that the primary judge’s decision was so contrary to the weight of the evidence as to be unreasonable or plainly unjust, that argument is rejected. The decision was open to the primary judge on the evidence.
Ground 1 is an invitation to this Court to substitute its own decision in the absence of error, contrary to the principles in House v The King, and therefore fails.
Ground 4
Ground 4 reads as follows:
Her Honour erred at paragraph 62 of Reasons and following that the additional time requested was minimal and therefore not supporting additional litigation however the overall time increase is in fact significant when taking into account holiday time. Paragraph 75 refers to a “modest change”. And again at paragraph 113 indicating the change as “minimal”.
The primary judge said, at [62]:
62However, if [the child] spends more time with the father per Order 6.8 of the 2018 Order, then that would flow to holidays at Order 6.1 too. That means the child would be spending more time with the father in holidays – possibly up to two blocks of three nights in the short school holidays. Whether it is the current overnight alternate Sundays, or the increase per Order 6.8, either outcome again raises the question whether I ought allow the parties to re-litigate over parenting issues when provision is made for the child to spend holiday time with the father, just not as much as the father would now like.
It was not submitted that [62] represented an inaccurate summary on its face, only that it was incorrect to categorise the additional time sought as “minimal” or “modest”.
At the appeal hearing the father submitted that the primary judge found the “additional time was only minimal or modest” and that this was “a core tenet” of the decision and demonstrated error (Appeal transcript 2 May 2024, p.7 lines 18–21).
The primary judge did not describe either “the additional time requested” nor “the change” sought by the father as “minimal”. The primary judge said, at [113], “the gain for the father in litigating for time is minimal” (emphasis added) when cast against the detriment to the child.
At [75], the primary judge referenced the mother’s submissions, that the father’s proposal was “not too far from what is in place”, and then referred to “…the modest change sought by the father in his Minute and contrasting this with the prospect of detriment to the child of re-litigation…”.
The specifics of the number of nights and evenings per year the child would spend with the father from age 14 under the 2018 orders, compared with the father’s proposal, were not put to the primary judge.
On the face of the judgment there is no error of understanding demonstrated. Nor is there error in the use of the description of “minimal” to describe the primary judge’s assessment of the relative gain to the father nor of “modest” to describe his proposal.
Before us the father submitted that the difference between 78 nights per year and an additional 45 nights per year was “an increase of almost 60%” and could not be considered “modest” or “minimal” (Father’s Summary of Argument at [41]–[42]).
At the appeal hearing the father handed up an aide-memoire calculating the nights per year under the 2018 orders the child will spend with the father now he is 14, and the additional nights per year sought by the father’s application, to demonstrate the difference was “not modest or minimal” (Appeal Transcript 2 May 2024, p. 8 lines 16–18). The mother did not have an opportunity to check these figures. It appears the figures are accurate.
The increase under the 2018 orders is from 26 to 75 nights per year. However, the aide-memoire omitted to include the additional “one afternoon/evening per week” (at Order 6.8.2). Whilst not overnight time, this 52 additional afternoons/evenings per year the child is to spend with the father under the 2018 orders is relevant to the assessment of the difference between the 2018 orders and the father’s proposal. The father did not mention this additional time in his written submissions nor at the appeal hearing. The 2018 orders move from 26 nights before age 14, to a possible 75 nights and 52 afternoon/evenings, or 127 combined overnights or afternoon/evenings per year, plus the special occasions, from age 14 if the child wishes to spend such additional time with the father. The father’s proposal seeks a further 56 nights per year on top of that, although it was put at approximately 45 additional nights in written submissions (Father’s Summary of Argument at [41]).
If, as the father submitted, the only relevant comparison was between the 75 overnights and the additional 56 overnights per year, and if the primary judge had concluded that additional time was “minimal”, it might well have called into question whether the primary judge had properly comprehended the extent of the father’s proposal.
However, given the full extent of the 2018 orders, and that the primary judge’s assessment of the increase was “modest”, and that she used the word “modest” in the context of contrasting the change with the detriment to the child, the use of the word “modest” is not sufficient to lead to an inference that the primary judge misunderstood the extent of the father’s application.
In any event, the primary judge’s findings concerning the extent of the additional proposed time was made “against the backdrop” of her finding, at [114], of no material change. Accordingly, even if there had been error, it would not have resulted in a different order.
Grounds 4 fails.
Ground 5
Ground 5 reads as follows:
Her Honour erred at Paragraph 63 and 64 of Reasons by not referencing and correctly interpreting the need for change of Order 6.7 and in particular, the Mother’s lack of reply and consideration under such circumstances as evidenced in the Affidavit of the father.
Order 6.7 of the 2018 orders provide a mechanism for the mother to give the husband notice of the child not being available to spend ordered time with him due to a prior engagement, and for the provision of make-up time.
The father’s Minute of Order dated 24 November 2023 proposed Order 6.7 be re-worded to read:
In the event that the children are not available to spend time with either parent during their Ordered periods of time, due to a prior engagement, then the relevant party shall notify the other party as soon as practicable but not less than 14 days prior to the date and provide to the other party three dates when time can occur and a notification of a response is then required within seven (7) days of having received such notice which of the nominated alternative dates they accept.
(Emphasis added)
The primary judge said at [63]–[64]:
63As for the variation proposed to Order 6.7, the order currently requires the mother to let the father know if the child cannot attend time with the father due to a prior commitment and for the mother to propose make up time for the child and father. That is of benefit to the father.
64The father now proposes that be mutual as between the parents, but the mother does not embrace what may have been a benefit to her. That is a matter for her. I will not further consider something which might have been of benefit to her, which she does not want.
The father submitted that the amendment was required due to the mother’s “persistent lack of response and requirement for follow up…on reasonable communication for change” (Father’s Summary of Argument at [44]–[49]). At the appeal the father referred to the mother’s refusal to allow extra, or different time, to the orders when requested by him. The father’s submission was that his proposed Order 6.7 was for his benefit, not the mothers, as the primary judge had understood it (Appeal Transcript 2 May 2024, p.12 line 15 to p.13 line 2).
Order 6.7 of the 2018 orders allows the mother to ensure the child does not miss out on prior engagements due to ordered time with the father.
The father’s proposal apparently seeks to effectively circumvent the existing live with Order, which was not challenged, by redefining the orders to “ordered periods of time” with each parent. Further, it apparently seeks to effectively circumvent the current sole parental responsibility Order, which was not challenged, by allowing each parent to unilaterally arrange prior engagements, so long as they offer make up time. This proposal is misconceived.
Even if the primary judge failed to understand the father’s proposal as it was explained before us, that was likely because its intended effect was never made clear to the primary judge. The father’s proposed change to Order 6.7 was not relevant to the issue of changed circumstances, on which the primary judge made her decision, and in any event was misconceived.
Ground 5 necessarily fails.
Ground 6
Ground 6 reads as follows:
Her Honour erred in awarding costs to the Mother against the backdrop of the father’s financial hardship. In particular, at paragraph 133 Her Honour assessed that within 60 days “the father could cashflow the payment” against a backdrop of financial disclosure by the Father of gross income of $296 per week of which her Honour was aware.
This ground relates to Order 6 of the orders, which provides that:
Within 60 days of the date of these orders the father is to pay the mother’s costs fixed in the sum of $7,822.53 for her costs thrown away arising out the 9 November 2023 hearing.
Order 6 relates to costs thrown away by the mother in the child support proceedings due to an adjournment.
The matter was first before the primary judge on 9 November 2023. Both parties were represented by counsel on that date. Aspects of the father’s proposed orders filed 23 May 2023 were struck out. The father sought and obtained an adjournment to reframe his orders. The adjournment was conceded on the basis the mother would circulate a schedule of costs for submissions on that issue (see [117]–[119]). The Schedule of Costs on behalf of the mother, filed 1 December 2023, was before the Court on 4 December 2023.
The primary judge found:
121In the circumstances, counsel for the father (again appropriately) did not cavil with the idea that in asking for the indulgence to redraft his orders and to come back another day, that came with a cost.
122In other words, the mother’s entitlement to costs is predicated upon the father’s conduct of the proceedings. He failed to seek orders that could actually be made (s 117(2A)(g)) and, when confronted with that reality, he asked for another go (s 117(2A)(c) and/or (g)). I appreciate the father says he is in straightened financial circumstances (s 117(2A)(a)), but impecuniosity is no bar to a costs order (D & D (Costs) No 2 (2010) FLC 93-435). In any event, the father deposes in his Financial Statement at Part N that he spends $101 a week on clothes and shoes, $204 a week on entertainment/hobbies, $80 a week on holidays, and $162 a week on cleaning, books and hairdressing.
123I will not go through the balance of s 117(2A) factors, because I am satisfied the matters just mentioned with respect to s 117(2A)(c) and s 117(2A)(g) are circumstances that justify making a costs order for the mother’s benefit.
The father accepted on appeal his counsel did not oppose a costs order.
The mother’s costs schedule contained 11 items. At trial the father’s counsel did not cavil with item 1, being the solicitors’ costs of the attendance on 9 November 2023. At scale that was $648.05. Nor did he cavil with item 2, in principle, being some allowance for counsel’s fees for that day, although he did not concede fees for a whole day. Senior counsel for the mother submitted the matter was listed for the day. The primary judge found the matter was listed for the whole day. Item 2 at scale was $7,122.64 for the day (see [126]–[131]). The remaining $51.84 of the sum ordered was for items 9 and 10. They were the case outline and amended case outline which were required because of the adjournment and amendment. They were allowed at scale. There is no error in the quantum allowed.
In relation to time to pay, the father asserted general error given his financial position. He submitted at paragraph 55 of his Summary of Argument:
Given the available funds of [the father], the trial judge ought to have allocated the timing over a substantially longer period of time, say 100 weeks, especially when placed in terms of the relative financial position of the parties.
The primary judge considered the father’s financial statement and assertion of impecuniosity when ordering costs. The time allowed to pay was a discretionary decision. No submission was put to the primary judge on time to pay, despite the concession there should be a costs order. The time allowed was not unreasonable or plainly unjust.
There is no error in the costs order, and Ground 6 also fails.
DISPOSITION
No ground of appeal enjoys merit and hence the appeal will be dismissed.
COSTS
The mother sought her costs of and incidental to the appeal. The appeal was wholly unsuccessful, lacked any objective merit and should not have been brought. That is to be weighed against the father’s impecuniosity, which is no bar to a costs order (Northern Territory v Sangare (2019) 265 CLR 164). The unmeritorious nature of the appeal means the mother should have her costs of the appeal, at scale.
The mother’s schedule of solicitor’s costs at scale totalled $5,888.57. The mid-range scale costs for senior counsel at appeal is approximately $10,000. The mother sought $15,800 payable in 60 days.
The father opposed a costs order. In the alternative he sought two years to pay.
Pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the mother’s costs are fixed at $15,000. Two years is an unreasonable period. The father will have 60 days to pay.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Hogan & Smith. Associate:
Dated: 21 August 2024
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