MANDELBAUM & MANDELBAUM
[2010] FamCAFC 9
•2 February 2010
FAMILY COURT OF AUSTRALIA
| MANDELBAUM & MANDELBAUM | [2010] FamCAFC 9 |
| FAMILY LAW – PROPERTY SETTLEMENT – APPEAL FROM FEDERAL MAGISTRATES COURT – COSTS – Husband’s appeal wholly unsuccessful - Court of the opinion circumstances justify the making of an order for costs in the wife’s favour on a party and party basis as agreed or assessed. |
| Family Law Act 1975 (Cth) Section 117(2A) |
| APPELLANT: | MR MANDELBAUM |
| RESPONDENT: | MS MANDELBAUM |
| FILE NUMBER: | PAC | 1499 | of | 2008 |
| APPEAL NUMBER: | EAA | 1 | of | 2009 |
| DATE DELIVERED: | 2 February 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 25 June 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrate’s Court |
| LOWER COURT JUDGMENT DATE: | 12 December 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1399 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Neil Jackson |
| SOLICITOR FOR THE APPELLANT: |
| COUNSEL FOR THE RESPONDENT: | Andrew F. Givney |
| SOLICITOR FOR THE RESPONDENT: | McPhee Kelshaw |
Orders
That the husband pay the wife’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.
IT IS NOTED that publication of this judgment under the pseudonym Mandelbaum & Mandelbaum is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 1 of 2009
File Number: PAC1499 of 2008
| MR MANDELBAUM |
Appellant
And
| MS MANDELBAUM |
Respondent
REASONS FOR JUDGMENT
COSTS
On 4 August 2009, for reasons which it then published, the Court dismissed the husband’s appeal against orders made by Federal Magistrate Cassidy on 12 December 2008 in proceedings with respect to settlement of property between Mr Mandelbaum (“the husband”) and Ms Mandelbaum (“the wife”).
For reasons which the Court also then published, the wife’s costs of successfully resisting the husband’s appeal were reserved.
On 21 October 2009, no submissions of the kind envisaged by the Court’s judgment of 4 August 2009 having been received, the Court ordered the husband to file and serve any submissions he wished to make in opposition to the wife’s costs application within 21 days. No submissions have been received in the Appeals Registry as at the date of this judgment. The 21 day period provided by the orders of 21 October 2009 expired some weeks ago.
The Court’s Reasons for Judgment of 4 August 2009 clearly flagged that, the husband’s appeal having been wholly unsuccessful, the wife had grounds for seeking her costs of the appeal. Notwithstanding the absence of submissions on behalf of the husband in opposition to a costs order, and the Court’s previous observations, it is necessary to have regard to the provisions of section 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) in order to determine whether a costs order should be made. That is essentially because section 117(1) of the Act provides that, unless the Court is “of opinion that there are circumstances that justify it in doing so” the Court is constrained from making an order for costs in favour of either party to the appeal.
Section 117(2A)(a) would not disincline the Court to make a costs order in favour of the wife if it is otherwise of the requisite opinion. Why that is so is largely because of the matters discussed by the Court in its judgment of 4 August 2009 with respect to the husband’s unsuccessful section 75(2) challenge to the decision of the learned Federal Magistrate.
Nothing before this Court suggests that section 117(2A)(b) of the Act is potentially relevant. If the wife happens to be in receipt of Legal Aid, that would not disincline the Court to make a costs order in her favour if one were otherwise justified. Conversely, if the husband happens to be in receipt of Legal Aid, that would not provide him with a shield against a costs order if one were otherwise appropriately made.
Section 117(2A)(c) of the Act is not relevant, nor is section 117(2A)(d) of the Act. The crux of the wife’s costs claim is that the husband was “wholly unsuccessful” in his appeal to this Court. That is a matter made relevant by section 117(2A)(e) of the Act.
The obstacles to success in appeals against discretionary judgments are well known and were briefly referred to in the Court’s judgment of 4 August 2009. Objectively, the husband’s prospects of success on appeal to this Court from the decision of the learned Federal Magistrate were always limited. The husband was entitled to prosecute his appeal, but, given the clear hurdles which his appeal needed to overcome in order to succeed, the husband can be taken to have accepted the considerable risk of failure inherent in pursuing his appeal rights. Objectively, the wife having wholly and successfully resisted the husband’s challenges to the learned Federal Magistrate’s decision, it is difficult to see on what basis she should be left to bear costs reasonably incurred for the purpose of so doing.
This Court has not been referred to anything which could enliven the provisions of section 117(2A)(f) in aid of the husband’s resistance to the wife’s application. There are no other matters which the Court considers relevant within section 117(2A)(g).
Having regard to the nature of the husband’s appeal, and the fact that it was wholly unsuccessful, the Court is of the opinion that the circumstances justify the making of an order for costs in the wife’s favour on a party and party basis as agreed or assessed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman
Associate:
Date: 2 February 2010
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