Kinch and Meuli

[2019] FamCAFC 7

FAMILY COURT OF AUSTRALIA

KINCH & MEULI [2019] FamCAFC 7

FAMILY LAW – APPLICATION IN AN APPEAL – Application by the mother for costs of a discontinued appeal – Where the father’s discontinued appeal sought to challenge costs orders – Conduct of the parties – Whether the discontinued appeal was wholly unsuccessful – Consideration of relevant matters under s 117 of the Family Law Act 1975 (Cth) – Father ordered to pay the mother’s costs of the discontinued appeal – Costs as assessed on a party/party basis.

Family Law Act 1975 (Cth) ss 94AAA(3), 117

Bant v Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Parke & the Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

APPLICANT: Ms Kinch

RESPONDENT: Mr Meuli

FILE NUMBER: MLC 3002 of 2009

APPEAL NUMBER: EA 129 of 2018

DATE DELIVERED: 18 January 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 21 November 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baume

SOLICITOR FOR THE APPLICANT: Joanne Klaric

THE RESPONDENT: In person

Orders

1. The father pay the mother’s costs in the amount of $1,500 within twenty-eight (28) days.

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 Kinch & Meuli 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 129 of 2018
File Number: MLC 3002 of 2009

Ms Kinch

Applicant

And

Mr Meuli

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Kinch (“the mother”) for costs of a discontinued appeal instituted by Mr Meuli (“the father”). The appeal was filed on 9 October 2018 and pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), it was determined that the jurisdiction would be exercised by a single judge.

2. The appeal was listed before me for a procedural hearing on 22 November 2018, at which the father and the mother, by counsel, appeared by telephone.  The appeal concerned an order for costs made against the father by consent.  The day after the procedural hearing the father filed a notice of discontinuance of the appeal.

3. On 26 November 2018 orders were made for written submissions as to costs.  The mother, as the applicant for costs, was ordered to file her written submissions on or before 17 December 2018 (Order 1) and the father was to file any submissions in reply on or before 11 January 2019 (Order 2). Written submissions were received from the mother on the due date.  The father did not provide submissions.

4. In short, it is the mother’s position that an order for costs should be made because the appeal lacked merit and its discontinuance meant that she incurred legal costs unnecessarily.

5. Section 117(1) of the Act is the governing provision concerning costs and provides the general rule that subject to s 117(2) each party to proceedings under the Act should bear his or her own costs. Section 117(2) requires a finding of justifying circumstances of an order for costs. If so found, the court may make such order for costs it considers just. In considering what order, if any, should be made, the court is required to have regard to the factors listed in s 117(2A).

6. The first relevant factor is the financial circumstances of each of the parties (s 117(2A)(a)).  Neither party provided evidence as to their current financial circumstances.  On behalf of the mother, the submission is made that the mother is in “no position to finance the process of having to repeatedly address and defend the [father]’s seemingly superficial and nebulous Applications” (mother’s submission filed 17 December 2018, paragraph 4).  As I have already indicated, the father did not respond to these submissions and it is appropriate to proceed on the basis that he does not take issue with the assertion that the mother cannot readily afford the costs of litigation.  In the absence of submissions or evidence from him as to his financial circumstances, the application of the subsection weighs in favour of the mother.

7. The next factor is s 117(2A)(c), the conduct of the parties. This is relevant to the father’s conduct subsequent to filing the notice of appeal and, relevantly, him commencing a process which culminated in the notice of discontinuance. Pursuant to s 117(2A)(c) and also s 117(2A)(g) it is unarguable that the mother incurred costs preparing for an appeal unnecessarily. This factor weighs heavily in favour of her application for costs.

8. The mother’s submission to the effect that the appeal has been wholly unsuccessful is inconsistent with authority (Bant v Clayton (Costs) (2016) 56 Fam LR 31; Parke & the Estate of the Late A Parke (2016) FLC 93-748). As the father’s appeal has not been determined on its merits the effect of these decisions is that the question of whether he has been wholly unsuccessful does not arise.

9. In my view, the fact that the mother has incurred costs unnecessarily amounts to justifying circumstances, and on balance, means that an order for costs in her favour should be made.

10. Turning then to the question of quantum, the application for costs appears to be presented on an indemnity basis.  The submissions do not address why an order for costs on an indemnity basis would be appropriate, other than the assertion that “[the father] seems is [sic] establishing a pattern of issuing vexatious nebulous Applications the effect of which are more like harassment and persecution of [the mother]” (mother’s submissions filed 17 December 2018, paragraph 1).  Nothing was said to justify this submission.  The case for indemnity costs has not been made out.

11. Turning then to the memorandum of fees itself, counsel fees are sought in the amount of $4,500.  Counsel’s memorandum of fees attached to the submissions reveals that it relates to work undertaken prior to the notice of appeal being filed and an attendance at the Federal Circuit Court in Albury, for reasons apparently unrelated to the appeal.  There is no basis upon which those costs could be properly awarded against the father in the appeal.

12. As to the solicitor’s costs, it was not necessary for the mother to file an application in an appeal seeking no more than the appeal be dismissed and the costs associated with that process are not costs appropriately awarded in the appeal.  Doing the best that I can with the memorandum of fees provided, it is proper that an order for costs in the amount of $1,500 be made.  The order will allow for payment within 28 days.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 18 January 2019.

Associate:     

Date:  18 January 2019