Kitman & Kitman (Costs) - [2008] FamCAFC 180

FAMILY COURT OF AUSTRALIA

KITMAN & KITMAN (COSTS)

[2008] FamCAFC 180

FAMILY COURT – APPEAL – COSTS – Where appeal and cross appeal were allowed and orders were made re-exercising the discretion of the trial judge – Where appellant and cross appellant seek costs certificates for the appeal and cross appeal – Orders made for costs certificates to be issued to the appellant and respondent in the appeal – Orders made for costs certificates to be issued to the cross appellant and respondent in the cross appeal

FAMILY LAW - COSTS – Appellant made an application pursuant to s117AB for costs to be paid by the respondent on the basis that the respondent had made false allegations or statements – Orders made to dismiss the appellant’s application for costs against the respondent

Family Law Act 1975 ss117, 117AB
Federal Proceedings (Costs) Act 1981, ss6 & 9

Oscar & Traynor [2008] FamCAFC 158

APPELLANT:

MR KITMAN

RESPONDENT:

MRS KITMAN

FILE NUMBER:

TVF

2438

2005

APPEAL NUMBER:

2008

DATE DELIVERED:

12 November 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

12 November 2008

REPRESENTATION

APPELLANT:

Appellant appears on his own behalf

SOLICITOR FOR THE RESPONDENT:

Wilson/Ryan/Grose

Orders

That the application contained in the Response to an Application in a Case filed by the husband on 18 July 2008 be dismissed.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the respondent (cross-appellant) wife a costs certificate pursuant to the provisions of s6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the cross-appellant wife a costs certificate pursuant to the provisions of s9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the cross appellant wife in respect of the costs incurred by her in relation to the cross-appeal.
That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent cross appellant husband in respect of the costs incurred by him in relation to the cross-appeal.

IT IS NOTED that publication of this judgment under the pseudonym Kitman & Kitman (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA35 of 2008
FILE NUMBER: TVF2438 of 2005

MR KITMAN

Appellant

And

MRS KITMAN

Respondent

EX TEMPORE
REASONS FOR JUDGMENT

Judgment was delivered on 5 November 2008 when orders were made allowing the appeal of the husband and the cross appeal of the wife. The husband’s appeal was against orders that he pay spousal maintenance and was successful primarily because of a mistake made by the Federal Magistrate.
Although the wife resisted the appeal it can be seen that the error was that of the Federal Magistrate. The wife had not asked for spousal maintenance at the trial before the Federal Magistrate.
The husband seeks that the wife pay his costs of the appeal and also, as I understand it, of the cross-appeal. He also in an application being a response to an application in a case filed on 18 July 2008 seeks the following orders:
(1)That the application by [Mrs Kitman] to adduce further evidence be dismissed.
(2)That a declaration be made that the applicant has deliberately made a false statement/given false information to the court.
(3)A declaration that the applicant is guilty of contempt of court.
(4)That in accordance with Family Law Act 117AB, [Mrs Kitman] pay my costs of and incidental to the interlocketory [sic] matters of the Stay and the appeal.
The matters that [Mr Kitman] urged me to consider in support of his application were first by reference to the provisions of s 117AB of the Act which provides as follows:
SECTION 117AB COSTS WHERE FALSE ALLEGATION OR STATEMENT MADE
117AB(1) [Application of section] This section applies if:
(a) proceedings under this Act are brought before a court; and
(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
117AB(2) [Court must order some or all of the costs of another party] The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.
Mr Kitman urges me to look at the affidavit of the wife filed on 12 June 2008 in support of her appeal where she was asking to adduce further evidence and then his affidavit filed 18 July 2008 where he says it can be seen that what the wife said was not true.
There are two questions. The first is to what extent, if any, did the judgment take into account what the wife had said in her affidavit in deciding the appeal, for example by reference to paragraph 91 of the Reasons. The second is that s 117AB provides that the court must be satisfied that a party knowingly made a false allegation.
It is very difficult to imagine how in the context of an appeal there could be a conclusion that a party knowingly made a false allegation. As I mentioned several times in the judgment dealing with the appeals, many of the facts and circumstances relating to the parties' history, present financial circumstances and future financial circumstances were controversial.
The Court could have allowed both appeals and returned the matter for further hearing. Bearing in mind the very small amounts of money to be divided between these parties and the substantial moneys that have already been spent by them in litigation in this Court I determined that the better course was to re-exercise.
When looking at what was said about the wife's application to adduce further evidence in paragraph 81 of the Reasons I referred to her affidavit and concluded to the extent to which evidence may be relied upon in relation to the husband's appeal which has been allowed, it is rejected. To some extent an affidavit of the person who explained what rent would be payable in Townsville was taken into account, as that was relatively uncontroversial.
In paragraph 82, to some extent I recount what the wife said about her income. It is in relation to this that the husband in particular takes objection and asserts that the wife has been untruthful. I noted in paragraph 83 that if there was a rehearing of the matter the husband would wish to cross-examine the wife on those matters and that he had taken issue in his own affidavit with almost every fact asserted by the wife. It was hardly necessary to have evidence to demonstrate the significant financial differences between the parties (para 84).
In my view this application must fail for two reasons. The first is that it could not be demonstrated on the face of the material that the wife had knowingly (emphasis added) made a false allegation or statement in the proceedings and, secondly of less moment, that these were not matters that were given any weight in the determination, in particular of the husband's appeal. I would therefore dismiss the application filed on 18 July 2008.
I turn now to the question of the costs otherwise of these appeals. It seems obvious that in relation to the husband's appeal there must be an order that each party receive a certificate because of the reason why the appeal has been successful.
As to the cross-appeal of the wife against the property orders made by the Federal Magistrate, it was also successful. At the trial it was ordered that the wife receive 60 per cent of the proceeds of sale of the matrimonial home and 20 per cent of the husband's superannuation, to describe that in a very loose fashion.
After allowing the appeal I re-exercised the Court's discretion so that the wife now will receive a further $16,834.54 representing a further 10 per cent of the parties' assets and 35 per cent of the husband's superannuation. The value of the husband's superannuation at trial was approximately $340,895.83 being approximately the sum upon which the splittable benefit will be payable.
The wife asked for a certificate under the Appeal Costs Fund as there was an error made by the Federal Magistrate. Such order should be made in this case.
The only other separate question that arises is that, as I have already mentioned, the husband asked for his costs from the wife rather than an order being made under the Appeal Costs Fund. There is no doubt that a litigant in person may receive his legal costs - see Oscar & Traynor [2008] FamCAFC 158. Mr Kitman has set out carefully his costs in a sheet which would include such reasonable costs being filing fee, transcript, photocopying and service of documents should such an order be made.
As has already been said by Mr Bowrey, the solicitor for the wife, the Court must pay attention to the provisions of s 117 which provides primarily that each party pay their own costs with the exception of the matters that are there set out. Mr Bowrey made submissions about the relevant sections of those provisions.
I should mention that the solicitors for the wife made an offer on 8 May 2008 that the wife would consent to the appeal on the basis that the husband consent to the wife receiving 50 per cent of the superannuation fund. The husband did not agree. It is obvious that the ultimate result as a result of this appeal was not as good for the wife as she asked in that offer.
In reply the husband offered by letter dated 11 May 2008 that the wife agrees to the appeal being dismissed and pay half the costs which are estimated at $1788.75, but that the only change to the orders be that the wife receive 25 per cent of the husband's superannuation. It can be seen therefore that neither offer was immediately the same as the ultimate result or even close.
The other matter that Mr Kitman urged upon me was that this offer was not a genuine offer made by the solicitors and he also asked me to consider that the outline of argument provided by the solicitors was only filed the day before the hearing of the appeal.
In the circumstances of this case none of those matters would lead to a result that either party should pay the costs of the other, especially as the appeal was necessitated by the errors made by the trial Judge as described in my judgment.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May.

Associate:

Date: 26 November 2008