Mallory & Mallory
[2020] FamCAFC 62
•24 March 2020
FAMILY COURT OF AUSTRALIA
| MALLORY & MALLORY | [2020] FamCAFC 62 |
| FAMILY LAW – PARENTING APPEAL – COSTS – Where the appellant and the respondent had failed to comply with earlier procedural orders made by the Appeal Registrar in relation to filing and serving their schedule of costs prior to the appeal hearing – Written submissions as to the issue of costs – Where the Full Court made orders providing for the respondent to file and serve an itemised schedule of costs and for the appellant to file and serve any objecting submissions in response for determination in chambers – Where the respondent sought an order for costs to be made on a party/party basis quantified in the amount of $17,482 – Where the appellant objected to any costs order being made against him – Where the appeal was wholly unsuccessful – Appellant ordered to pay the respondent’s party/party costs of and incidental to the appeal in a fixed amount within six months of these orders. |
| Family Law Act 1975 (Cth) s 117 |
| Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Elias & Elias (No. 2) [2019] FamCAFC 92 Fabin & Lukey [2019] FamCAFC 117 Lenova & Lenova (Costs) [2011] FamCAFC 141 Northern Territory v Sangare (2019) 93 ALJR 959; [2019] HCA 25 Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44 |
| APPELLANT: | Mr Mallory |
| RESPONDENT: | Mrs Mallory |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 4927 | of | 2016 |
| APPEAL NUMBER: | SOA | 67 | of | 2018 |
| DATE DELIVERED: | 24 March 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Alstergren CJ, Ainslie-Wallace & Austin JJ |
| HEARING DATE: | Heard by way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 August 2018 |
| LOWER COURT MNC: | [2018] FCCA 2335 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Ingleby |
| SOLICITOR FOR THE APPELLANT: | Aitken Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Harris |
| SOLICITOR FOR THE RESPONDENT: | Geelong Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid (Did not participate) |
Orders
Within six (6) months hereof, the appellant father shall pay the respondent mother’s party/party costs of and incidental to the appeal concluded by orders made on 28 November 2019, for which purpose the costs are fixed at $17,482.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mallory & Mallory has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 67 of 2018
File Number: MLC 4927 of 2016
| Mr Mallory |
Appellant
And
| Ms Mallory |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 28 November 2019, we dismissed the father’s appeal against parenting orders made by the primary judge in respect of the parties’ four children. These reasons now concern the resolution of a costs dispute.
At the conclusion of the appeal hearing, when exploring with the parties the possible costs consequences of the appeal, the respondent mother sought that the father pay her party/party costs if the appeal failed and the father conceded he could not resist such an order in that event.
At that point in time, neither party had complied with an earlier procedural order made by the Appeals Registrar requiring them to file and serve itemised schedules of their costs. The mother quantified her costs at $20,650 and, while the father did not oppose a costs order, he objected to the amount claimed by her.
Having regard to the parties’ stated positions, when the appeal was later dismissed, orders were made requiring the mother to file and serve an itemised schedule of her scale party/party costs and then allowing the father to file and serve any submissions setting out his objections to the itemised costs. It was anticipated the costs order could then be made in chambers on the papers.
The mother duly filed and served her schedule of costs, revealing her party/party costs of and incidental to the appeal to be $17,482 (to the nearest dollar).
The father filed and served his submissions in response. Although the orders we made on 28 November 2019 only allowed for the father to take objections to the mother’s itemised costs, he took a different course. He did not object to the quantification of the mother’s costs, but rather made submissions to the effect he should not be fixed with any costs order at all. Such submissions were therefore contrary to the concession of liability he made at the appeal hearing and also outside the terms of the procedural orders we made.
As is well known, in proceedings under the Family Law Act 1975 (Cth) (“the Act”), the ordinary rule is that parties must bear their own costs (s 117(1)), but the rule must yield to circumstances justifying an order for costs (s 117(2)) (see Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at [11]).
In this case, the father’s appeal was wholly unsuccessful (s 117(2A)(e)) and he conceded that a party/party costs order against him would inevitably follow upon dismissal of the appeal (s 117(2A)(c) and s 117(2A)(g)).
Although, contrary to his earlier concession of liability and the narrow terms of our procedural orders made 28 November 2019, the father now submits against any costs order at all, the only basis of his objection is his poor financial circumstances (s 117(2A)(a)). We are unaware whether the mother accepts the reliability of his asserted poor financial circumstances but, regardless, unmeritorious litigation is no less unmeritorious because it is pursued by a person who is [or purports to be poor (Northern Territory v Sangare [2019] 93 ALJR 959 at [27]) and impecuniosity cannot be used as an unconditional shield against a costs orders (see Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Elias & Elias (No. 2) [2019] FamCAFC 92 at [14]).
The father submitted statements made by the Full Court in Fabin & Lukey [2019] FamCAFC 117 should, because of analogous circumstances, persuade us against making any costs order. The submission is rejected. The refusal of a costs order in that case turned on the individual facts of the case. As Barwick CJ said in Edwards v Noble (1971) 125 CLR 296 at 303:
…A decision in point of fact is of no precedent value whatever. In my opinion it is a dangerous judicial course to attempt to decide one case by the analogy of the facts of another…
We shall make an order for costs in the mother’s favour because it is warranted under s 117 of the Act, as the father conceded at the appeal hearing. He took no issue in his submissions with the quantum of the mother’s party/party costs so the order will fix her costs in that sum. We shall allow the husband six months within which to pay the costs to recognise the probable difficulty of his financial circumstances.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren CJ, Ainslie-Wallace & Austin JJ) delivered on 24 March 2020
Associate:
Date:
13
5
1