Kivlen and Kivlen (Costs)
[2010] FamCAFC 141
•6 July 2010
FAMILY COURT OF AUSTRALIA
| KIVLEN & KIVLEN (COSTS) | [2010] FamCAFC 141 |
| FAMILY LAW – APPEAL - Application for costs – appeal proceedings – appeal wholly unsuccessful – costs application granted. |
| Family Law Act 1975 (Cth) |
| Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Penfold v Penfold (1980) 144 CLR 311 |
| APPLICANT: | Ms Kivlen |
| RESPONDENT: | Mr Kivlen |
| FILE NUMBER: | DGC | 439 | of | 2008 |
| APPEAL NUMBER: | SA | 36 | of | 2009 |
| DATE DELIVERED: | 6 July 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | 6 July 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 December 2008 |
| LOWER COURT MNC: | [2008] FMCfam 1282 |
REPRESENTATION
| THE APPLICANT: | Ms Kivlen in person |
| THE RESPONDENT: | No appearance |
Orders
The husband pay the wife’s costs of and incidental to the appeal by the husband determined by judgment pronounced on 12 October 2009.
The costs referred to in the preceding order be in an amount as agreed between the husband and the wife, and failing such agreement within six weeks of the date of this order, as assessed on a party/party basis.
IT IS NOTED that publication of this judgment under the pseudonym Kivlen & Kivlen (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 36 of 2009
File Number: DGC 439 of 2008
| MS KIVLEN |
Appellant
And
| MR KIVLEN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing is an application for costs of proceedings which were concluded by me by judgment delivered on 12 October 2009.
BACKGROUND
On 16 December 2008 in the Federal Magistrates Court a judgment was entered in respect of proceedings for property settlement between Mr Kivlen (“the Husband”), and Ms Kivlen (“the Wife”).
I do not propose in these brief reasons to set out in any detail the relevant history; however, I refer to what I said in reasons for judgment delivered by me on 19 May 2009 and 12 October 2009.
The judgment in the Federal Magistrates Court concluded the hearing that commenced on 14 November 2008 of applications for final orders. On 16 December 2008 the Federal Magistrate delivered reasons but did not pronounce judgment. On 5 February 2009 the Federal Magistrate pronounced judgment and made an order pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”).
On 24 April 2009 the Husband filed an application in an appeal seeking an extension of time to file a notice of appeal, and that application was listed for hearing before me on 14 and 18 May 2009. On 19 May 2009 I pronounced judgment and granted the Husband an extension of time to file a notice of appeal. On 22 May 2009 the Husband filed a notice of appeal pursuant to the leave granted, and thereafter I heard and determined those appeal proceedings.
The Chief Justice had made an order that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single Judge.
The hearing of the appeal occurred before me on 25 August 2009, and at the conclusion of the hearing I reserved my judgment. Ultimately, on 12 October 2009 I pronounced judgment and made an order that the appeal be dismissed. I also dismissed an application in an appeal that was filed on 7 August 2009. Directions were then made in relation to the filing of submissions with respect to the costs of those proceedings and on 4 November 2009 submissions as to costs were filed on behalf of the Wife.
Again, I do not propose to repeat in these brief reasons all of what was said in those submissions; however, submissions were made with respect to the relevant statutory considerations, and importantly, a submission that the appeal was wholly unsuccessful and entirely without merit.
On 3 December 2009 submissions as to costs were filed on behalf of the Husband, and again, I do not propose to repeat all of what was said in those submissions. The Husband did, however, contend that he would be losing his home and walking away with nothing after matrimonial debts were paid and said that any orders above $5000 would result in his bankruptcy and the likelihood that the Wife would receive no money from him whatsoever.
Thereafter, there has been a considerable delay in dealing with the costs proceedings. However, as I indicated briefly in discussion with the Wife, there was a series of correspondence between the Court and the parties and, in particular the Husband, and, for example, in March 2010 a response was filed on behalf of the Wife in which it was stated that the Wife was willing to accept an offer made by the Husband in the sum of $5000, referring to what the Husband had said in his submissions.
As I also indicated in discussion, because of this correspondence, I endeavoured to ascertain whether or not the cost proceedings had been resolved by compromise, and it is apparent to me from what I have been informed today by the Wife that no such settlement was ever achieved. I then sought to have the matter listed before me for the purposes of concluding the cost proceedings and clarifying whether or not there had been any settlement of such proceedings.
There was an email received by my administrative associate from the Husband dated 24 June 2010 in which the Husband was largely critical of me and did not, either directly or indirectly, suggest that the cost proceedings had been resolved. This email was received from the Husband in response to an email written by my administrative associate to the parties to ascertain whether or not the cost proceedings were concluded.
In any event, as a result of such correspondence by letter dated 24 June 2010, both parties were advised that the matter would be listed before me today and that the reason was to clarify if the application for costs was still being pursued or if the parties had reached a compromise. The parties were also advised that the purpose was to ascertain if there was any further information that may be necessary to bring the matter to a conclusion.
When the matter was called today, there was no appearance by or on behalf of the Husband, however, there was an appearance by telephone conference facility by the Wife. The Wife informed me, and I accept, that no settlement of the cost proceedings was ever achieved and that she wished to pursue her application. I observe that the Wife is no longer legally represented, and she recently filed a notice of address for service.
I propose to bring these proceedings to a conclusion.
PRINCIPLES
Section 117(1) of the Act provides, that “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs”.
Section 117(2A) of the Act provides, that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court said:
41. A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
I also observe that in Penfold v Penfold (1980) 144 CLR 311 in joint reasons Stephen, Mason, Aicken and Wilson JJ said at 315-16:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
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”. (emphasis added)
As to the nature of the hearing of an application pursuant to s 117 of the Act their Honours said at 315:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
CONCLUSION
In this case, in summary, I am satisfied that the Wife has established a justifying circumstance. The appeal by the Husband against the property settlement application was ultimately unsuccessful.
There were brief submissions made in relation to the financial circumstances of each of the parties. In the submissions of the Wife it was said that she is the primary carer of the two children of the marriage, aged five and four years, and that she receives parenting benefits from Centrelink and supplements this with a modest income from the sale of books on eBay.
In the submissions it was contended that the Husband was assessed to pay child support at $270 per fortnight, but that sum was reduced to $40 per fortnight and that there are arrears. In the submissions of the Husband he contended that he suffers from epilepsy and has not worked since April 2008. He referred to advice that he has received from medical practitioners. He contended that at the time of separation, the Wife took all funds and left all debts and that he still has these debts in his name. He also, as I have observed, made reference to the possibility of bankruptcy.
In summary, I accept that both parties are in limited financial circumstances. I also accept for the purposes of these proceedings that the Husband is probably not in receipt of any income from paid employment and dependent upon the receipt of social security.
I did not have the benefit of a statement of financial circumstances from either party. However, I observe that in my reasons for judgment delivered on 12 October 2009 I said that the Federal Magistrate found that the parties had net assets of $388,000. I also said at [47] that the Federal Magistrate determined that the Wife was to receive 77 per cent of the net assets, or $281,050 and that the husband was to receive 23 per cent, or $83,950. I observed that the consequence was that the Wife received $197,000 more than the Husband and that this was a significant disparity.
In summary, it seems to me that the two most important considerations in this matter are the outcome of the proceedings and the financial circumstances of each of the parties. The matter, however, to which I attach the most significant weight is the outcome of the proceedings.
This was a case where an indulgence had been granted by my order of 19 May 2009 to the Husband to file a notice of appeal out of time. Ultimately, that appeal came on for hearing before me, and it failed. I accept that the Wife has incurred costs of and incidental to those appeal proceedings. She informed me, and I accept, that she has an account from her solicitors for an amount of approximately $8000.
In all the circumstances, I am persuaded that an order for costs should be made in favour of the Wife.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan
Associate:
Date: 30 July 2010
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