Kamano and Kamano (Costs) - [2011] FamCAFC 224

FAMILY COURT OF AUSTRALIA

KAMANO & KAMANO (COSTS)

[2011] FamCAFC 224

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the wife’s appeal was wholly unsuccessful ─ Where the wife failed to file submissions in time ─ Where there was no evidence before the Court of any offer of compromise ─ Wife ordered to pay the husband’s costs of and incidental to her Notice of Appeal as agreed or assessed on a party/party basis

Family Law Act 1975 (Cth) ss 117, 117(2A)

Penfold & Penfold (1980) 144 CLR 311
Rand & Rand (Costs) [2010] FamCAFC 231

APPELLANT:

Ms Kamano

RESPONDENT:

Mr Kamano

FILE NUMBER:

NCC

2413

2008

APPEAL NUMBER:

EAA

2011

DATE DELIVERED:

1 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

31 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

31 March 2011

LOWER COURT MNC:

[2011] FMCAfam 221

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Byrnes

SOLICITOR FOR THE APPELLANT:

Byrnes & Cox Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hannaway

SOLICITOR FOR THE RESPONDENT:

Hannaway Lawyers

Orders

That the wife pay the husband’s costs of and incidental to the Notice of Appeal filed 10 August 2011 as agreed or assessed on a party/party basis.

IT IS NOTED that publication of this judgment under the pseudonym Kamano & Kamano (Costs) is approved 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: EAA 47 of 2011
File Number: NCC 2413 of 2008

Ms Kamano

Appellant

And

Mr Kamano

Respondent

REASONS FOR JUDGMENT

COSTS

Introduction

On 16 September 2011, for reasons which the Court then published, the appeal by Ms Kamano (“the wife”) against orders made by Federal Magistrate Coakes in proceedings brought against her by Mr Kamano (“the husband”) was dismissed. The Court then reserved the costs of the appeal and made directions for the filing of submissions.
On 10 October 2011, in accordance with the Court’s directions, submissions were filed on behalf of the husband for an order that the wife pay his costs of her unsuccessful appeal.
The time for filing submissions on behalf of the wife expired on 17 November 2011. On 24 November 2011 submissions were received on behalf of the wife. Appropriately, the wife’s attorney apologised to the Court for his failure to file the submissions within time. Somewhat refreshingly, no attempt was made to rationalise the failure to comply with the Court’s orders. The Court has considered the submissions on behalf of the wife.
Albeit brief, the submissions filed on behalf of the husband make clear the grounds upon which costs were sought. The first was that the appeal was wholly unsuccessful, as it undoubtedly was.
The financial circumstances of the parties were referred to, it being asserted that the husband was in paid employment earning approximately $1,300 per week whilst the wife was not in paid employment.
The two children of the former marriage live with the wife. What arrangements exist for the provision of Child Support, whether by agreement or Child Support determinations or orders, are unclear. The Court proceeds on the basis that the husband is probably in a superior financial position to the wife.
Given that the order, if costs are ordered, will be that the wife pay the husband’s costs as agreed or assessed on a party/party basis, it is unnecessary to respond to the submissions on behalf of the husband with respect to the quantum of any costs which he might be awarded.
On behalf of the wife it was submitted that, although ultimately unsuccessful, it could not be successfully asserted that the wife’s appeal was “entirely without merit” or “hopeless”.
The second basis upon which the wife sought to avoid an order for costs, which was sensibly submitted to be more “compelling”, was in reliance upon the wife’s financial circumstances. In support of that submission, a financial statement of the wife was provided. It is apparent from that document that, apart from Child Support, the wife’s sole sources of income are from Government benefits totalling $556 per week. In addition, the wife receives dividends of approximately $20 per week. The wife pays rent of $270 per week. The wife disclosed modest assets, comprised principally by a motor vehicle ($20,000), and savings of approximately $18,000. The wife has a substantial liability for unpaid legal fees of $3,000, and a debt to the Australian Taxation Office of $700.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, unless the Court is of the opinion that the circumstances justify an order for costs being made, each party to the proceedings bears his or her own costs of the proceedings. In order to determine whether the circumstances justify the making of a costs order, it is necessary to refer to the provisions of section 117(2A) of the Act.
In Penfold & Penfold (1980) 144 CLR 311 at page 315 the High Court said at that:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117(2) in “a clear case”.
Although the husband appears to be in a financially superior position to that of the wife, the Court would not decline to make an order for costs, if it were otherwise of the opinion that doing so was justified in all the circumstances by reason of that apparent disparity in the financial positions of the parties. Obviously, the financial circumstances of the parties could not advance the husband’s claim for costs.
There is no evidence before the Court that either party has been in receipt of Legal Aid.
The conduct of the parties in relation to the proceedings is a matter of some relevance. As is not in doubt, the wife’s appeal was against a series of findings by the learned Federal Magistrate that the wife had contravened orders of the Court without having established a reasonable excuse for such contraventions.
Although the learned Federal Magistrate did not find that the wife had established a reasonable excuse, and the Court did not interfere with his Honour’s conclusions in that regard, the evidence relied upon by the wife with respect to reasonable excuse was evidence upon which the wife could also have relied when the learned Federal Magistrate came to consider what, if any, sanctions were appropriate with respect to the contraventions which he found proved.
Whilst the wife was entitled to challenge the learned Federal Magistrate’s contravention findings, it would have been preferable to have filed a Notice of Appeal against the findings, but waited until the learned Federal Magistrate finalised the contravention proceedings to have that appeal heard if she considered it necessary or appropriate to do so. (See Rand & Rand (Costs) [2010] FamCAFC 231).
This Court cannot speculate as to what sanctions the learned Federal Magistrate may impose, nor does it need to. It is sufficient to record that, if the wife wished to challenge the sanctions imposed by the learned Federal Magistrate when his Honour had determined those issues, she could also have challenged the contravention findings themselves. Regrettably, the wife has created a situation whereby she will potentially attempt to have “two bites of the cherry”.
There may be cases where it is appropriate to challenge contravention findings prior to the imposition of sanctions with respect to them, but the Court does not believe this to be such a case. It is to be remembered that sanctions imposed as a result of contravention of orders being proved does not give rise to anything in the nature of a criminal conviction. No offence has been committed when Court orders have been contravened, notwithstanding that the sanctions which may be imposed include incarceration and other sanctions commonly found in statutes which regulate criminal offences. The wife could have lost nothing by waiting until she knew her ultimate fate before deciding whether or not to pursue that appeal.
The proceedings with which this Court has been concerned were not “necessitated by the failure of the parties to the proceedings to comply with previous orders of the Court”, although obviously, the proceedings which gave rise to the appeal were. It would be unfair, and inappropriate, to rely upon this factor in support of the husband’s application for costs. In fairness, the husband’s solicitor did not seek them.
The matter of most obvious significance, as the submissions on behalf of the husband recognise, is the reality that the wife’s appeal was wholly unsuccessful. Given that an appeal either succeeds or fails, there being no intermediate outcome, a complete absence of success may assume less significance in a costs application in this Court than at first instance where there are often degrees of success and failure. The fact remains however that the proceedings in this Court, only arose because the wife challenged the decision of the Federal Magistrates Court and failed with each of the challenges she raised to each of the contraventions which had been found proven by that Court.
There is no evidence before this Court of any offer of compromise.
The Court accepts that, whatever the figure ultimately agreed or assessed, the making of an order for costs is likely to materially impact upon the wife financially. That is regrettable, but, where a costs order is otherwise as clearly indicated as the Court finds it to be, in this case, that cannot divert the Court from making the order which it concludes the circumstances require.
The wife’s financial circumstances would not disincline the Court to make a costs order although, if, as proposed, an order is made. The wife’s financial circumstances would be of considerable relevance to any application she made for time to pay such costs, or to pay them by instalments.
There will accordingly be an order for costs on a party/party basis as agreed or assessed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 1 December 2011.

Associate:

Date: 1.12.2011