M and M (Costs)

[2010] FamCAFC 70

FAMILY COURT OF AUSTRALIA

M & M (COSTS) [2010] FamCAFC 70

FAMILY LAW - APPEAL – COSTS – Costs Certificates – Where the successful appellant wife sought that the husband pay her costs of the appeal and cross-appeal or alternatively that she be granted a costs certificate – Where the respondent husband filed no submissions as to costs – Where the appeal raised issues of substance – Where each party should pay their own costs of the appeal – Where it is appropriate that the wife be granted a costs certificate.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT: Ms M

RESPONDENT: Mr M

FILE NUMBER: PAF 1488 of 2003

APPEAL NUMBER: EA 54 of 2005

DATE DELIVERED: 7 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: By way of written submissions

JUDGMENT OF: Bryant CJ, Finn & Boland JJ

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 22 April 2005

LOWER COURT MNC: [2005] FamCA 276

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Batey

SOLICITOR FOR THE APPELLANT: Mark Brown & Associates

COUNSEL FOR THE RESPONDENT: Mr Connor

SOLICITOR FOR THE RESPONDENT: Abbott Tout

Orders

1. That each party pay his or her own costs of and incidental to the appeal against the Orders of 22 April 2005.

2. That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 wife in respect of the costs incurred by her in relation to the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 54 of 2005

File Number: PAF 1488 of 2003

Ms M

Appellant

And

Mr M

Respondent

REASONS FOR JUDGMENT

1. On 20 September 2006 this Full Court made orders allowing an appeal by the wife against orders for property settlement made by the Coleman J on 22 April 2005. In allowing the appeal we varied one of his Honour’s orders (Order 1) to provide that the wife would receive the former matrimonial home without having to make the payment to the husband (which had been required under his Honour’s orders). The reason for this variation essentially was to take into account the wife’s contribution to the husband’s superannuation entitlement.  

2. Directions were also made in our orders of 20 September 2006 for the parties to file written submissions in relation to the costs of the appeal.

3. Submissions in relation to the costs of the appeal were filed by the successful appellant wife on 16 November 2006. She sought in her submissions that the husband should pay her costs of the appeal and the cross-appeal, or alternatively, that she be granted a certificate pursuant to section 6 and/or section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”). No costs submissions were filed by the respondent husband.

4. However, on 18 October 2006 the husband had filed an application for special leave to appeal our orders of 20 September 2006 to the High Court. The husband’s special leave application was deemed abandoned by the High Court on 18 April 2007 due to the husband’s solicitor failing to file the application books within six months of filing the special leave application.

5. On 2 May 2007 the husband filed a summons seeking reinstatement of his application for special leave to appeal. The High Court made orders on 28 May 2007 reinstating the husband’s application for special leave to appeal.

6. On 3 August 2007 the High Court dismissed with costs the husband’s application for special leave to appeal. Our orders, on the basis of which the wife’s application for costs was based, were thus in effect, confirmed. 

The wife’s submissions

1. In support of her application for costs, the wife relied on an assertion that she had been “substantially successful” in the appeal, whilst the respondent husband had been unsuccessful in opposing the appeal and “effectively wholly unsuccessful” in an application which he had made to re-open the hearing of the appeal.

2. In relation to the parties’ financial circumstances, the wife submitted that the outcome of the appeal was that the husband would retain assets in the vicinity of $53,952.00 and the whole of his superannuation entitlement, and the wife would receive $434,800.00.

3. It was submitted by the wife that although the wife retained a higher percentage of the non-superannuation assets, the husband was in the better financial position. In support of this submission, the wife relied on the evidence that in January 2004 the husband’s earning capacity was found to be $1,900.00 per fortnight, by way of pension payments, compared to the wife’s earning capacity of $600.00 per week. It was asserted by the wife that the husband also has “the ability to engage in further employment without any reduction in his fortnightly benefit of $1,900.00.”

Discussion

1. As we have already indicated, no submissions have ever been received from the husband, either in opposition to the wife’s application for costs, or seeking his own orders in relation to costs.

2. However, it must be remembered that section 117(1) of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that subject to certain exceptions (not presently relevant) each party to proceedings under the Act shall bear his or her own costs. Sub-section 117(2) goes on to provide that the Court may make an order for costs if it is of the opinion that there are circumstances which justify it in doing so, having regard to certain matters which are then set out in s 117(2A). These matters include the matters relied on by the wife in the present case and outlined above. Thus, we must determine if the circumstances would justify an order for costs in the wife’s favour.

3. Notwithstanding the matters relied on by the wife in support of her application for costs, we are not persuaded that the circumstances justify an order for costs. This is for the reason that a principal issue in the case (as is demonstrated by the transcript of the hearing by the High Court of the special leave application) was the operation and application of the then relatively new provisions of Part VIIIB of the Family Law Act concerning superannuation interests. The appeal therefore raised issues of substance.

4. In these circumstances, we do not consider that there should be a departure from the general rule that each party pay their own costs. We do however, consider that it is an appropriate case for the award of a certificate for the appellant under s 9 of the Costs Act in respect of costs occurred by her in relation to her appeal.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  7 April 2010