Leigh & Calpin
[2023] FedCFamC1A 220
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Leigh & Calpin [2023] FedCFamC1A 220
Appeal from: Calpin & Leigh [2023] FedCFamC1F 767 Appeal number: NAA 276 of 2023 File number: MLC 9080 of 2020 Judgment of: AUSTIN, CAREW & CAMPTON JJ Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appellant filed a Notice of Discontinuance the day before the hearing of the appeal by the Full Court – Where the respondent and the Independent Children’s Lawyer (“the ICL”) pressed costs applications against the appellant – Where the appellant defaulted in compliance with procedural orders several times in the lead up to the hearing – Where the respondent and ICL were forced to incur costs readying themselves to meet the appeal – Where the appellant did not adduce any evidence about his financial circumstances – Where the appellant did not challenge the computation of the respondent’s and the ICL’s costs – Appellant to pay the respondent’s and the ICL’s party/party costs of and incidental to the appeal in a fixed sum. Legislation: Family Law Act 1975 (Cth) s117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
Cases cited: CDJ v VAJ (No 2) (1998) 159 ALR 138; [1998] HCA 76
De Roma & De Roma (2013) 49 Fam LR 226; [2013] FamCA 566
Gahen & Gahen (No 2) [2013] FamCA 936
LAC & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
PJ and NW [2005] FamCA 162
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Number of paragraphs: 23 Date of hearing: 5 December 2023 Place: Melbourne Counsel for the Appellant: Mr Willee Solicitor for the Appellant: Braham Lawyers Pty Ltd Counsel for the Respondent: Ms Mallett KC Solicitor for the Respondent: Teak Legal & Consulting Pty Ltd Counsel for the Independent Children's Lawyer: Mr Glezakos Solicitor for the Independent Children's Lawyer: Dinning & Co Family Lawyers ORDERS
NAA 276 of 2023
MLC 9080 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LEIGH
Appellant
AND: MS CALPIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, CAREW & CAMPTON JJ
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.The appellant shall pay the respondent’s party/party costs of and incidental to the discontinued appeal, fixed in the sum of $9,137.
2.The appellant shall pay the Independent Children’s Lawyer’s party/party costs of and incidental to the discontinued appeal, fixed in the sum of $9,701.
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 Leigh & Calpin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, CAREW & CAMPTON JJ:
The appellant’s appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) was listed for hearing before the Full Court on
5 December 2023.
The day beforehand, the appellant filed a Notice of Discontinuance to discontinue the appeal. Both the respondent and the Independent Children’s Lawyer (“the ICL”) pressed costs applications against the appellant in respect of the belatedly discontinued appeal.
These short reasons explain why they should have their party/party costs.
Background
The appealed orders were made on 6 September 2023.
In summary, the orders provide for the respondent to have sole parental responsibility for the child (Order 2), for the child to live with her (Order 3), and enable them to move to Country B upon giving the appellant 30 days’ notice (Orders 8 and 9). Order 8 was stayed by the primary judge on 1 November 2023, subject to the appellant’s diligent prosecution of the appeal.
On 30 October 2023, the appeal registrar made procedural orders, including for the appellant to file the full transcript of the trial by 17 November 2023. The appellant did not do so, meaning the appeal was deemed abandoned by r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Then, on 22 November 2022, the appellant applied to re-instate the appeal and, a week later, orders were made to that effect. The appellant was given a short extension of time within which to file and serve his Summary of Argument, but he defaulted in compliance with that procedural order too.
Contemporaneously with the appellant’s discontinuance of the appeal, the respondent and the ICL notified the Court that they wished to retain the hearing date the following day to press their oral applications for costs.
The appellant filed an affidavit by his solicitor on 4 December 2023, apparently to resist the costs applications, but we were informed at the hearing by the appellant’s counsel that the affidavit was not read. No evidence was adduced by the respondent or the ICL either, so the costs applications are determined on the basis of only oral submissions.
Legal principles
The costs of the parties and the ICL in the appeal are governed by the provisions of s 117 of the Family Law Act 1975 (Cth).
Ordinarily, the parties bear their own costs of the appeal (s 117(1)), but the Court may order the payment of costs (s 117(2)), subject to consideration of several material factors (s 117(2A)).
The costs of the ICL abide different considerations (ss 117(3), 117(4) and 117(5)).
The respondent
The respondent’s submissions focussed exclusively upon the manner in which the appellant conducted the appeal, which was less than diligent (s 117(2A)(c)). He failed to file the transcript on time, which necessitated the re-instatement application. He then failed to file and serve his Summary of Argument on time, despite an extension of time within which to do so. It was not until the day before the appeal hearing that he discontinued the appeal. The respondent was therefore forced to incur costs readying herself to meet the appeal.
The appellant’s counsel confirmed the appellant funded the appeal privately and did not receive a grant of legal aid (s 117(2A)(b)). The appellant chose not to adduce any evidence about his income, expenses, assets and liabilities, so he was precluded from submitting that his financial circumstances militated against costs orders (s 117(2A)(a)).
The respondent was legally-aided (s 117(2A)(b)) so, by inference, her financial circumstances are inferior to those enjoyed by the appellant.
The respondent conceded her costs of the appeal could not include the costs associated with the stay application, which application was made to the primary judge and whose stay order was made in exercise of original jurisdiction. This Court exercises only appellate jurisdiction.
The appellant did not challenge the computation of the respondent’s other costs at $9,137, which sum he should pay.
The ICL
The ICL participates in the litigation, performing special functions and occupying a unique position, but is not a party to the proceeding (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 207 and 225–226). Hence, the provisions of s 117(1), which only apply to “parties”, does not create the same starting presumption for ICL’s costs as applies in respect of the parties.
The duty of the ICL in an original proceeding carries over to any appellate proceeding (CDJ v VAJ (No 2) (1998) 159 ALR 138 at [3]).
The ICL was funded in the appeal by a grant of legal aid, but the Court is mandated to disregard such legal aid funding when determining the costs application (s 117(5)), which obligation has been interpreted to mean the ICL should be presumed to be unfunded so as to incline the Court to order the parties’ contribution to the ICL’s costs (De Roma & De Roma (2013) 49 Fam LR 226 at [2]–[3], [39]–[52] and [54]; Gahen & Gahen (No 2) [2013] FamCA 936 at [8]–[10]; PJ and NW [2005] FamCA 162 at [66]; LAC & TRF & LKL (2005) 33 Fam LR 123 at [61]–[63]).
Like the respondent, the ICL’s submissions concentrated upon the belated discontinuance of the appeal to justify the costs order, to which the appellant had no rational response.
The appellant’s deliberate decision not to adduce any evidence about his financial circumstances precluded him from contending he will suffer financial hardship if ordered to bear the ICL’s costs (s 117(4)(b)).
Like the respondent, the ICL conceded the costs application could not include the costs associated with the stay application. That being so, the ICL quantified costs at $9,934, with which computation the appellant did not cavil. However, that sum includes an amount of $233 to attend and receive judgment on the costs application, which we regard as unnecessary. Costs are only ever compensatory; never punitive (Latoudis v Casey (1990) 170 CLR 534).
Accordingly, the ICL’s costs are assessed at $9,701, which sum the appellant is ordered to pay.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Carew & Campton. Associate:
Dated: 8 December 2023
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