Jaynes & Rundle
[2021] FamCAFC 7
•5 February 2021
FAMILY COURT OF AUSTRALIA
Jaynes & Rundle [2021] FamCAFC 7
Appeal from: Rundle & Jaynes [2020] FCCA 1629 Appeal number(s): EAA 97 of 2020 File number(s): SYC 7123 of 2019 Judgment of: ALDRIDGE J Date of judgment: 5 February 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed – Where the father seeks costs at scale in a fixed sum – Father’s financial circumstances stronger than the mother’s – Wholly unsuccessful – Conduct of the parties to the proceedings considered – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Sch 3, r 22.22
Division: Appeal Division Number of paragraphs: 12 Place: Heard in Chambers by way of written submissions, delivered in Sydney Counsel for the Appellant: Self-represented litigant Solicitor for the Respondent: Williams & Co Solicitors ORDERS
EAA 97 of 2020
SYC 7123 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS JAYNES
Appellant
AND: MR RUNDLE
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
5 FEBRUARY 2021
THE COURT ORDERS THAT:
1.There be no order as to costs.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jaynes & Rundle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
On 23 November 2020, I dismissed an appeal filed by Ms Jaynes (“the mother”) against orders made by a judge of the Federal Circuit Court of Australia. The primary judge’s determination was that an Amended Initiating Application filed by Mr Rundle (“the father”) on 24 February 2020 should not be dismissed and should proceed to a hearing as to the reconsideration of final parenting orders made by consent on 8 February 2017.
On that day, I also made orders for the filing of written submissions as to costs. Both parties have now filed their written submissions. The mother’s submissions were late, but regard has been had to them. No submissions in reply were filed by the father.
The father seeks that the mother pay his costs of the appeal in the sum of $5,000, which is slightly less than the sum calculated in accordance with Sch 3 of the Family Law Rules 2004 (Cth) (“the Rules”). In the alternative, the father seeks that the mother pay his costs on a party and party basis as agreed or assessed or in an amount fixed by the Court.
In proceedings under the Family Law Act 1975 (Cth) (“the Act”), each party is to bear his or her own costs of the proceedings (s 117(1)), unless in all the circumstances, the Court considers that a different order is just (s 117(2)). In considering whether such other order should be made, the Court is to have regard to the matters set out in s 117(2A) of the Act.
The father relies on three matters set out in s 117(2A) of the Act.
Firstly, the father relies on the financial circumstances of the parties (s 117(2A)(a) of the Act) and submits that “there ought be no financial reason for not making a costs order if it is otherwise justified” (the father’s written submissions filed on 7 December 2020, paragraph 3.1.1.3). The father is employed on a permanent full-time basis and pays child support for the parties’ child. A letter from the Child Support Registrar which is annexed to the mother’s affidavit filed on 24 December 2020 indicates that the father’s income for the year 2019/2020 was $237,506. The father resides with his partner and their child, who are both financially dependent on him.
For her part, the mother also relies on her financial circumstances. The mother is unemployed and does not earn an income. She submits that she is “primarily financially responsible” for the parties’ child (the mother’s written submissions filed on 24 December 2020, paragraph 14(n)), including the payment of his private school fees. The mother resides with her partner and their three young children, as well as the parties’ child.
The available evidence indicates that the father is in a stronger financial position than the mother.
The father’s second submission relates to the mother’s conduct in relation to the proceedings (s 117(2A)(c) of the Act). The father submits that the mother’s Summary of Argument did not comply with the Rules because it “was replete with argument made other than in compliance with r 22.22(2)(a)” (the father’s written submissions filed on 7 December 2020, paragraph 3.1.2.1).
In response, the mother raised the father’s failure to file a schedule of costs prior to the hearing of the appeal in accordance with the procedural orders made on 27 August 2020, and failure to be in a position to address the issue of costs at the hearing of the appeal, which is the usual practice of this Court. This led to orders being made for the issue of costs to be dealt with by way of further written submissions. Whilst this has resulted in the mother having to spend unnecessary time dealing with the father’s costs application, it has not resulted in her incurring any legal fees.
Finally, the father highlights that the mother was wholly unsuccessful (s 117(2A)(e) of the Act) on the appeal.
Taking each of the above matters into account, I consider that the mother’s financial position and the mother having the primary care of the parties’ child outweigh the other considerations. Therefore it is appropriate that there be no order as to costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 5 February 2021
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