Leigh & Calpin

Case [2023] FedCFamC1A 220

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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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

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Details
AGLC
Leigh & Calpin [2023] FedCFamC1A 220
Case
[2023] FedCFamC1A 220
Decision Date

CaseChat Overview and Summary

In the appeal case of Leigh v Calpin, the appellant, Mr Leigh, had filed a Notice of Discontinuance the day before the scheduled hearing before the Full Court, following the orders made on 6 September 2023 which granted the respondent, Ms Calpin, sole parental responsibility for the child, required the child to live with her, and allowed them to move to Country B, subject to certain conditions. The appellant defaulted in compliance with procedural orders multiple times leading up to the hearing, including failing to file the full transcript of the trial and the Summary of Argument on time. As a result, the appeal was deemed abandoned, and subsequently, re-instated only after an application by the appellant. The respondent and the Independent Children's Lawyer (ICL) sought costs against the appellant, which were pressed despite the discontinuance of the appeal.

The legal issues before the court involved whether the appellant's conduct justified the awarding of party/party costs to the respondent and the ICL under section 117 of the Family Law Act 1975 (Cth). The court needed to consider whether the appellant's lack of diligence in conducting the appeal warranted the imposition of costs, whether the appellant's financial circumstances were relevant, and whether the costs claimed were reasonable and necessary. The appellant had not adduced any evidence regarding his financial situation and did not challenge the computation of the costs claimed by the respondent and the ICL.

The court found that the appellant's failure to comply with procedural orders and his last-minute discontinuance of the appeal justified the awarding of party/party costs to the respondent and the ICL. The appellant funded the appeal privately and did not receive legal aid, and chose not to provide evidence of his financial circumstances, which precluded him from arguing against the costs on that basis. Consequently, the court ordered that the appellant should pay the respondent's costs of $9,137 and the ICL's costs of $9,701, both fixed sums for the costs of and incidental to the discontinued appeal.

Orders

Orders of the court

NAA 276 of 2023

MLC 9080 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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)).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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