King & King (No 2)
[2023] FedCFamC1A 100
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
King & King (No 2) [2023] FedCFamC1A 100
Appeal from: King & King (No 2) [2023] FedCFamC1F 45 Appeal number: NAA 45 of 2023 File number: MLC 9554 of 2011 Judgment of: AUSTIN, WILLIAMS & MCNAB JJ Date of judgment: 28 June 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY AND SPOUSAL MAINTENANCE – Appeal from orders made under Part VIII of the Family Law Act 1975 (Cth) – Where the primary judge ordered, inter alia, the appellant husband to pay to the respondent wife three years’ worth of arrears of spousal maintenance – Where there was no operative spousal maintenance order – Where interim orders were made in November 2011 for weekly payments of spousal maintenance – Where the financial cause between the parties was dismissed in March 2014 – Where the proceedings were re-commenced in July 2014 but the interim order for spousal maintenance was not revived – Where the primary judge was in error to assume the interim spousal maintenance order subsisted without interruption from November 2011 until the trial in February 2023 – Where the respondent conceded the erroneous calculation – Where the parties agreed the error could be rectified by variation of the appealed orders – Where the parties did not address the arithmetical error made by the primary judge in calculating the net value of the parties’ assets – Where the sum payable by the appellant to the respondent is corrected as permitted by s 36(1)(a) and s 36(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the respondent submitted the re-calculated sum should be increased by adding accrued interest – Where that submission is rejected – Where there are no circumstances to justify departure from the ordinary rule that the parties should bear their own costs of the appeal – No order as to costs – Appeal allowed. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 75, 117, 117B
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: King & King [2023] FedCFamC1A 36
Sadasivam & Seshan (2019) FLC 93-899; [2019] FamCAFC 76
Tudor & Tudor (1992) FLC 92-273; [1991] FamCA 89
Number of paragraphs: 60 Date of hearing: 7 June 2023 Place: Melbourne The Appellant: Litigant in person Solicitor for the Respondent: Ian Robertson Legal ORDERS
NAA 45 of 2023
MLC 9554 of 2011FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR M KING
Appellant
AND: MS KING
Respondent
order made by:
AUSTIN, WILLIAMS & MCNAB JJ
DATE OF ORDER:
28 june 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 2 and 8 made on 8 February 2023 are varied by substituting the figure of $469,105 for the figure of $436,000.
3.Orders 8(b), 9(b) and 10 made on 8 February 2023 are set aside.
4.The parties shall bear his and her own costs of the appeal and each party’s application for costs is dismissed.
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 King & King has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & MCNAB JJ:
By a Further Amended Notice of Appeal filed on 16 May 2023, the husband appeals from property settlement orders made under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 8 February 2023.
For the reasons that follow, the appeal is allowed due to a narrow error, but the parties agreed the error could be corrected by the re-calculation of the quantum of arrears under an interim spousal maintenance order on the evidence already available in the appeal. The re-calculation then changes the sum properly payable by the husband to the wife to implement the property settlement orders. In the process, another arithmetical error is corrected.
BACKGROUND
The parties married in 1994 when they were young and without any assets of significant value.
They separated in 1997 and divorced thereafter. They had one child at that time.
The parties reconciled and remarried in 2003, then had two more children. They separated again in 2011 and divorced for a second time in 2019.
The proceedings below were commenced in 2011, dismissed in March 2014, re-commenced in July 2014, and finally concluded by the appealed orders made in February 2023.
The primary judge found the parties’ property interests comprised one real property located in Victoria (“the Victorian property”), two real properties located in Country GG, and a superannuation interest, with total net value of $982,593 (at [30]). The parties did not identify or address the mathematical error of $100,000 made by the primary judge, but we are obliged do so. The net value of their assets was in fact $1,082,593.
The husband claimed two significant debts were owed to the parties’ eldest adult child (Ms C King) and to his sister (Ms DD King), which depreciated the net value of property available for division between the parties, but the primary judge rejected his claim (at [22b], [22c], [26b], [31e], [32] and [52]).
The primary judge found the parties’ contributions up to the time of hearing were equal (at [37]), but an adjustment of 10 per cent in the wife’s favour was appropriate pursuant to the factors prescribed by s 75(2) of the Act (at [48]). The overall result was the wife’s entitlement to 60 per cent of the parties’ net assets and superannuation.
It was the husband’s desire to retain the Victorian property and, to do so, he would need to pay a cash sum of $335,561 to the wife (at [49]). However, the primary judge adjusted the cash sum to take account of two other factors. First, it was calculated he still owed the wife $74,100 under an interim spousal maintenance order made in November 2011 (at [36d] and [50a]). Secondly, he still owed the wife $26,397.47 under prior costs orders (at [50b]). Accordingly, for the husband to retain the Victorian property, he had to pay the wife the rounded amount of $436,000 (at [51]). His Honour rejected the husband’s proposal for him to pay the wife only $120,000 (at [54]–[55]).
The appealed orders gave the husband 90 days within which to pay the cash sum to the wife. In default, the Victorian property was to be sold and the sale proceeds used to discharge the registered mortgage and the net balance then distributed in 60/40 shares in the wife’s favour. Otherwise, the parties retained their own assets and bore responsibility for their own debts.
Significantly, the primary judge declared that the cash sum of $436,000 payable to the wife comprised $74,100 for arrears of spousal maintenance (Orders 8(b) and 9(b)) and the interim spousal maintenance order was then expressly discharged (Order 10).
THE APPEAL
The husband’s appeal from the orders, in its original iteration, was earlier listed before the Court for consideration of its summary dismissal, when all but one ground of appeal were found to be incompetent (King & King [2023] FedCFamC1A 36). The husband later amended the grounds of appeal, but in doing so effectively resurrected some of the grounds formerly struck out. What was previously said about the incompetent grounds will be repeated as necessary.
To complicate matters, the grounds of appeal are misnumbered in the husband’s Summary of Argument. The grounds will be addressed as they are numbered in the Further Amended Notice of Appeal filed on 16 May 2023.
Ground 8
This ground complains the primary judge erred by not adjourning the trial, but the ground is incompetent for two reasons.
First, the primary judge correctly recorded that no applications for an adjournment of the trial were made (at [3]). It could not be an error to not decide an application never made.
Secondly, even if an adjournment application had been made and was refused, an appeal on that basis is not competent (ss 26(2)(b)(ii) and 26(2)(b)(iii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).
In support of this ground, the husband submitted this in his Summary of Argument:
1a.It was submitted to the [primary judge] that the matter should be adjourned as there are other interested parties who wish to present evidence before the Court. …
…
1c.… [B]ased on the submission of [counsel for Ms C King] it would be clear that in fact, at least one interested party sought an adjournment to be joined into the proceedings. This was denied.
The submissions are misconceived. No such “submission” about, or application for, an adjournment was made to the primary judge. Ms C King was indeed present at Court at the commencement of the trial, represented by counsel, but apparently only to inform the primary judge that she did not agree with the orders proposed by the wife.
These exchanges occurred between the primary judge and Ms C King’s counsel:
[COUNSEL FOR Ms C King]: [I appear] for an interested party, being the daughter.
HIS HONOUR: Interested party?
[COUNSEL FOR Ms C King]: Well, we’ve been - - -
HIS HONOUR: Are they a party?
[COUNSEL FOR Ms C King]: We’re not a party – sorry.
HIS HONOUR: Good. Well, what are you here?
[COUNSEL FOR Ms C King]: We’ve been – I suppose I’m amicus curiae to inform the - - -
HIS HONOUR: For who?
[COUNSEL FOR Ms C King]: On behalf of the daughter of the applicant and respondent, to inform the court - - -
HIS HONOUR: Did – the adult daughter?
[COUNSEL FOR Ms C King]: The eldest - - -
HIS HONOUR: The older child.
[COUNSEL FOR Ms C King]: - - - child.
HIS HONOUR: Yes, I know about her, yes.
[COUNSEL FOR Ms C King]: Yes. To inform the court that we received – my client received a letter last week advising that the applicant [wife] will be seeking orders against my client, that her caveat be discharged without payment - - -
HIS HONOUR: Well, ..... about ..... the end. I mean, the bottom line is there’s a proper way in which these cases are dealt with and, having looked at the history since 2011, one can only say this has not been dealt with in the proper way.
[COUNSEL FOR Ms C King]: Yes. And if - - -
HIS HONOUR: And – no, just stop. Stop. Unlike maybe the other 35 judicial events between different people over the last 11 to 12 years, I have read the history. Disgraceful.
[COUNSEL FOR Ms C King]: I haven’t, sir.
HIS HONOUR: Well, I have and I - - -
[COUNSEL FOR Ms C King]: I have no - - -
HIS HONOUR: - - - can tell you this. This is how it works. I don’t – no, I’m talking. I don’t know – is this usually what happens when I talk – when a - - -
[COUNSEL FOR Ms C King]: No - - -
HIS HONOUR: When a judge talks to you - - -
[COUNSEL FOR Ms C King]: Your Honour, I’m not sure if you’re aware. I have no knowledge whatsoever of this case.
HIS HONOUR: I’m sure you don’t. Just listen to what I’ve got to say. You’ve told me why you’re here. Bottom line is, if a person wants to get some relief against another party, they need to file proper applications.
[COUNSEL FOR Ms C King]: Yes.
HIS HONOUR: They need to serve them properly. They never give them a chance to be heard. If they haven’t done that, your work here today is done.
[COUNSEL FOR Ms C King]: Thank you, your Honour.
…
HIS HONOUR: As far as I’m concerned, unless there’s some other good reason that you want to seek to intervene in this case - - -
[COUNSEL FOR Ms C King]: No.
…
HIS HONOUR: … If people want to be here and to be heard, they need to either intervene or be a party. Other than that, people get to choose who they call as witnesses. …
(Transcript 30 January 2023, p.3 line 20 to p.4 line 42; p.5 lines 8–11; p.7 lines 36–37)
(As per the original) (Emphasis added)
Ms C King was not a party to the proceedings. She was not joined as a respondent by either spouse, nor did she separately seek to intervene. She did not apply for an adjournment of the trial, but could not have done so anyway unless she was a party with standing to do so.
Ground 9
This ground complains the primary judge erred by not permitting the “interveners” to give evidence at trial, which bears substantial similarity to a ground formerly struck out. The answer to the complaint requires some further contextual information.
Three other parties were formerly joined to the proceedings – Ms DD King, another relative, and a family-controlled corporation. They each applied for their removal as parties, which application was granted by another judge in July 2021, well over a year before the trial began (at [19]). The only parties to the proceedings at the time of trial were the spouses.
At trial, the husband was allowed to rely upon Ms DD King as a witness and her affidavit was read as part of the evidence adduced by him (at [10]). Ms C King, who is aligned with the husband and estranged from the wife, was not relied upon as a witness by the husband, even though the primary judge allowed him to rely upon whatever evidence his counsel nominated (at [7]–[10]). It has already been explained how Ms C King did not seek to intervene as a party in the proceedings.
Since the husband was permitted to rely upon all of the evidence he wished to adduce, this ground is prosecuted on a false premise. There were no interveners and the husband was not prevented from calling and tendering whatever evidence he wanted.
Ground 1
This ground asserts:
The Trial Judge erred by not allowing more time for evidence to be entered.
The ground appears to be an extension of Grounds 8 and 9 and is easily answered. The husband was permitted to rely upon the evidence he nominated. He did not identify in the transcript where he asked the primary judge for more time to adduce further evidence and, even if he had, the consequential decision not to vacate or adjourn the hearing is not a decision which is amenable to appeal.
Ground 7
This ground asserts the primary judge made a factual error in “determining the length of the marriage” but, when pressed to do so, the husband could not identify any finding made by the primary judge about the “length of the marriage”.
In fact, the parties were married and divorced twice and the primary judge made no mistake about that (at [14], [16]), save that the second divorce order was made in February 2019 rather than in November 2018 (at [17]). The primary judge was correct to observe that a period of 29 years elapsed between the commencement of their relationship in 1994 until the trial in January 2023, allowing for a period of six years separation between 1997 and 2003 (at [18]). There was no mistake.
Ground 2
This ground is pleaded as follows:
The Trial Judge erred by not being familiar with the history of the case.
The submissions made in support of this ground within the husband’s Summary of Argument asserted this:
6a.There is a common belief that when a case is before a Trial Judge, he is familiar with the case history. [The primary judge] has indicated on at least 5 occasions in these proceedings that has not read the entire case and is not sure of exactly how many applications have been made in the proceedings.
6b.It is submitted that had the Trial Judge in fact read the whole case and and [sic] was familiar with the litigation history, he would of taken a different approach and allowed the interested third parties to present their evidence.
The complaint stems from a fundamental misunderstanding on the husband’s part. The litigation began in 2011 and the trial was heard in 2023. At the start of the trial, the primary judge told the parties he was familiar with the procedural history of the litigation, saying:
HIS HONOUR: … [H]aving looked at the history since 2011, one can only say this has not been dealt with in the proper way.
[COUNSEL FOR Ms C King]: Yes. And if - - -
HIS HONOUR: And – no, just stop. Stop. Unlike maybe the other 35 judicial events between different people over the last 11 to 12 years, I have read the history. Disgraceful.
(Transcript 30 January 2023, p.4 lines 8–15)
Self-evidently, the primary judge was acquainted with the procedural history of the litigation. However, his Honour was not permitted, let alone obliged, to read every document filed over the duration of the proceedings to determine the financial cause. His Honour was only permitted to take into account the evidence adduced by the parties at the trial – as occurred.
Ground 4
This ground provides as follows:
The Trial Judge made orders that failed to take into consideration the facts surrounding the purchase of the various properties.
The complaint is not addressed at all in the husband’s Summary of Argument. He did not formally abandon the ground, but it is not made out in the absence of any submission to elaborate it.
Ground 3
This ground provides as follows:
The Trial Judge erred by making orders that could not be complied with.
As explicated in the husband’s Summary of Argument, this is a complaint about the orders which require the sale of the Victorian property if the husband fails to pay the designated cash sum to the wife.
It may be accepted that the husband is displeased with the orders, but he failed to make good on the assertion that the orders are incapable of compliance. His submissions were instead directed to asserted factual errors made by the primary judge and the injustice of the decision. Those submissions are rejected because they do not support the ground of appeal.
When the husband’s former appeal grounds were considered, he complained the orders were not capable of compliance because of caveats registered over the Victorian property, but that complaint was rejected in this way in the earlier interlocutory reasons (King & King [2023] FedCFamC1A 36):
16.Ground 2 asserts the orders are incapable of compliance due to the registration of caveats over “the property”, which is a parcel of real property in Victoria.
17. Several caveats are registered over the property.
18.One caveat is registered by a law firm formerly retained by the wife, presumably to secure legal fees owed by her to them, but it does not stultify the operation of the orders, as the reasons for judgment make clear (at [52]). The primary judge ordered the default sale of the property (Order 3) if the husband fails to pay the wife $436,000 within 90 days (Order 2). The orders provide for the caveat to be discharged upon sale of the property, but only from the share of the sale proceeds which are payable to the wife (Order 3(c)). If the property needs to be sold, she is to have sole conduct of the sale (Order 5(c)) and the husband must vacate the property in advance of the sale (Order 5(d)).
19.Two other caveats are registered over the property by [Ms C King] and [Ms DD King] supposedly to secure very substantial debts said to be owed to them (at [22]). The husband conceded he had adduced no evidence to verify the loan allegedly owed to [Ms C King] (at [26b]), in which case the liability was not taken into account (at [30]). The loan allegedly owed to [Ms DD King] was also excluded from consideration (at [30] and [32]), as the primary judge found the husband adduced no evidence to substantiate it (at [31e]). The primary judge said this in relation to these two caveats:
52.… The husband, as the continuing owner of the property, will need to take steps to have the caveats lodged by [Ms C King] and [Ms DD King] to be removed where, based on my findings, no caveatable interest by those parties exist.
20.The husband told the primary judge he would pay out the wife so he can retain sole ownership of the Victorian property (at [46]). If he does as he says, the caveats registered by [Ms C King] and [Ms DD King] over the property are immaterial because it will not need to be sold. However, if the husband refuses or fails to pay the sum of $436,000 to the wife, the default sale of the Victorian property will ensue. The two caveats will surely impede, but not preclude, its orderly sale. The wife will then have to proceed under the Transfer of Land Act 1958 (Vic) to remove the caveats from title, which may entail separate proceedings between her and the caveators. However, any such additional action does not prevent compliance with the appealed orders.
Ground 6
This ground provides as follows:
The Trial Judge erred in failing to make a quantum of costs in relation to the Costs reserved by Justice Hartnett.
In support of this ground, the husband submitted this in his Summary of Argument:
5a.When His Honour made an award of costs, he failed to give an opportunity to the [sic] [Ms DD King] and [Mr B King] to be heard in relation to their cost application.
The primary judge neither made any costs order nor dismissed any costs application in the judgment delivered on 8 February 2023.
Any costs order made, or costs application refused, by the primary judge or another judge on a different date is not the subject of this appeal.
Ground 5
This ground provides as follows:
The Trial Judge erred in making orders for Spousal Maintenance where there were no orders on foot for spousal maintenance.
Although the ground is not self-explanatory, the complaint it embodies is correct.
These observations were made in the earlier interlocutory reasons (King & King [2023] FedCFamC1A 36):
25.Litigation was commenced between the parties in 2011 (at [1]) and the husband was ordered to pay spousal maintenance by Cronin J in November 2011 (at [36d]).
26. On 28 March 2013, Cronin J made an order in these terms:
5.That all financial applications are otherwise struck out and the wife shall have a right to reinstate those applications upon certifying to the Registrar that they are ready to proceed but such right of reinstatement shall be exercised by no later than 4.00pm on 27 March 2014 and if not so exercised, the applications stand dismissed.
27.The financial cause was not dismissed by that order, as the husband wrongly contended. An order striking out an application is not the dismissal of that application – merely the removal of the cause from the list of cases awaiting trial before the Court (Tudor & Tudor (1992) FLC 92-273 at 79,026).
28.However, the wife failed to exercise her right to re-instate the proceedings by 27 March 2014 and so, according to the self-executing terms of the orders, the financial cause was then formally dismissed. Upon dismissal of the proceedings, the interim spousal maintenance order was ipso facto discharged because interlocutory orders cannot subsist beyond the currency of the cause (Sadasivam & Seshan (2019) FLC 93-899 at [26]).
29.The wife belatedly applied for re-instatement of the proceedings on 10 July 2014 and, the following day (11 July 2014), orders were made by a registrar in these terms:
1.All financial applications that were struck out pursuant to paragraph 5 of the orders made by the honourable Justice Cronin on the 28 March 2013 are reinstated and are otherwise adjourned for a hearing before a Judge on a date to be advised.
2.The Applicant Wife file and serve an Amended Initiating Application setting out with precision the final orders sought no later than the 5 September 2014.
30. The wife duly filed an Amended Initiating Application on 26 August 2014.
31.Upon re-instatement, the proceedings continued up until the finalisation of the cause by the primary judge in February 2023. No fresh interim spousal maintenance order was made, but the primary judge assumed the interim spousal maintenance order made in November 2011 continued in operation until the trial in January 2023, at which time his Honour purported to discharge it (Order 10).
(Emphasis in original)
The interim spousal maintenance order made against the husband in November 2011 was discharged when the financial cause between the parties was dismissed in March 2014 pursuant to the self-executing order. The interim order was not revived when proceedings were re-commenced several months later in July 2014, pursuant to orders made by the registrar. The wife ultimately conceded the interim spousal maintenance order was not revived and recanted the contrary submission within her Summary of Argument, for which she had cited no authority. Consequently, the wife conceded the appeal had to succeed on this ground.
The primary judge was in error to assume the interim spousal maintenance order subsisted without interruption from the time it was made in November 2011 until the time of trial in February 2023. As a consequence of the error, his Honour wrongly found the husband was indebted to the wife for $74,100 for three years of arrears accrued under the order. The error infected the calculation of the cash sum of $436,000 payable by the husband to the wife for the privilege of retaining sole ownership of the Victorian property. To do so, he needed to pay her less (subject to mathematical correction of the error as to the net value of assets).
DISPOSITION
Ground 5 is meritorious and the appeal is allowed.
The husband’s Further Amended Notice of Appeal stipulated his desire for the whole of the property settlement proceedings to be remitted for re-hearing, but he was drawn to concede that would not be a just remedial order to make if the appeal only succeeds for the error identified by Ground 5.
The appeal only succeeds for the solitary error about the arrears of spousal maintenance, which affected the quantum of the sum payable by the husband to the wife to satisfy the otherwise just and equitable orders adjusting the parties’ property interests. The parties agreed the error could be rectified by variation of the appealed orders, by substituting the correct calculation of spousal maintenance arrears for the erroneous calculation. In correcting that error, we are also able to correct the mathematical error made by the primary judge about the net value of the parties’ assets, which could otherwise have been corrected under the slip rule.
The interim spousal maintenance order applied from 9 December 2011 until its discharge on 27 March 2014 – a period of 120 (rounded) weeks at $475 per week, totalling $57,000. At trial, the wife gave evidence that the husband paid her $9,854 under the interim order. The husband did not dispute that evidence at trial and conceded the figure in the appeal. Allowing for the deduction of $9,854, the spousal maintenance arrears total $47,146.
The parties’ net assets are actually worth $1,082,593. The wife’s 60 per cent share computes to $649,556 (rounded to the nearest dollar). She retains assets worth $253,994, meaning the husband must pay her $395,562 in order for her to derive a 60 per cent share of the net assets. To that figure, the outstanding costs ($26,397) and the correct figure for arrears of spousal maintenance ($47,146) must be added. The correct sum payable by the husband to the wife is therefore $469,105 in lieu of $436,000 in satisfaction of the primary judge’s orders.
The appealable error can therefore be corrected by:
(a)varying the relevant appealed orders to correct the sum payable by the husband to the wife, as permitted by s 36(1)(a) and s 36(1)(b) of the FCFCA Act ; and
(b)setting aside the orders which erroneously refer to the interim spousal maintenance order and the arrears allegedly accrued thereunder after March 2014.
The wife submitted the re-calculated spousal maintenance arrears should be increased by adding accrued interest in reliance upon s 117B of the Act, but the submission is rejected for several reasons: first; s 117B is not a source of power for the accrual of interest in respect of orders for payment by way of maintenance of a periodic sum (s 117B(1)), as the interim spousal maintenance order in this case was because it required the payment of $475 per week; secondly, the arrears relate to a confined period which ended more than nine years ago in March 2014 and the wife did nothing to enforce payment of the arrears in the interregnum; and thirdly, the addition of interest to the arrears was not an issue raised at the trial.
COSTS
The husband sought his costs of the appeal because the appeal succeeded. He sought the cost of the transcript (which he quantified at $10,000) and legal fees he had incurred for advice about the appeal (which he claimed to total $7,000), even though he was self-represented in the appeal.
The husband’s costs application is dismissed. He could have sought relief from the provision of the transcript because the merit of Ground 5 could have been substantiated without it, so the wife should not be saddled with that cost. Nor did he need legal advice about the success of Ground 5, as it was foreshadowed in the prior interlocutory judgment (King & King [2023] FedCFamC1A 36). If he was advised to resurrect the grounds previously struck out, the advice was unreliable and the wife should not pay for it. The husband gave no reason for why the parties ought not bear their own costs of the appeal, as is usual (s 117(1) of the Act).
Even though the wife lost the appeal, she sought a costs order against the husband in a sum even higher than provided by the scale within Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The wife’s solicitor explained the higher costs were claimed because he had done the work of junior counsel in the appeal, disregarding the reality that he was not junior counsel. The wife’s solicitor explained costs were sought, despite his eventual concession of the merit of Ground 5 and the appeal, because it was still necessary to meet and resist the other unmeritorious grounds.
The wife’s costs application is dismissed. She submitted the husband was on notice that all grounds of appeal bar Ground 5 were unmeritorious, which is true, but the wife was on the same notice and needed to do little but point to the interlocutory judgment to defend those grounds. Moreover, for the same reason, the wife was on notice of the ostensible merit of Ground 5 but nevertheless insisted on resisting it without reference to any supporting authority. Her resistance to Ground 5 was pointless, as she eventually had to concede. Although she was able to make some useful submissions about the remedial order needed to resolve the appeal, the modicum of helpful preparation was but a tiny portion of the effort expended in rebuttal of the appeal, which overall effort was assessed by her at $15,400.
Both parties are yet to share in the division of their property. Their current and prospective respective financial circumstances are not so dissimilar as to militate either in favour of or against a costs order (s 117(2A)(a)). Neither party was the recipient of a grant of legal aid in the appeal (s 117(2A)(b)). The manner in which the parties chose to conduct the appeal has already been the subject of comment, with both taking an unreasonably adversarial approach (s 117(2A)(c)). No default in compliance with any order necessitated the appeal (s 117(2A)(d)). No relevant offer in writing was made between the parties (s 117(2A)(f)). No other factor was the subject of any submission by either party (s 117(2A)(g)). No circumstances justify departure from the ordinary rule that the parties should bear their own costs of the appeal (s 117(1) and s 117(2)).
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams & McNab. Associate:
Dated: 28 June 2023
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