Manning and Manning
[2012] FamCAFC 7
•30 January 2012
FAMILY COURT OF AUSTRALIA
| MANNING & MANNING | [2012] FamCAFC 7 |
| FAMILY LAW – APPEAL – Appeal from the orders of a Federal Magistrate dismissing the husband’s application that the wife pay his costs of the enforcement application – Application filed as a result of the wife failing to pay him the sum required be consent order on the due date – Where the Federal Magistrate dismissed the application on the basis that the wife had done everything she could to make the payment and had paid the husband interest on the sum required to be paid FAMILY LAW – APPEAL – Where it was argued that the Federal Magistrate erred in her exercise of discretion, failed to give sufficient reasons and incorrectly took into account the fact that the wife paid the husband interest as a consequence of the late payment – Where the reasons of the Federal Magistrate were coherently expressed – Found that the Federal Magistrate erred in not appreciating that the wife was obligated to pay interest, however the fact that interest was paid was a proper factor to consider as it reduced the impact of the late payment on the husband – Where costs in family court proceedings do not follow the event – Where the absence of reference to the legislation or that some factors were more or less important than others has never been regarded as a basis to allow an appeal against costs orders – Where the expense occasioned by an appeal hardly seems proportionate to the remedy sought by the husband – Where although there were proper grounds it cannot be said that the order of the Federal Magistrate was plainly unjust or outside her discretion – Appeal dismissed FAMILY LAW – COSTS – No order as to costs of the appeal |
| Family Law Act 1975 (Cth) Family Court Rules 2004 (Cth) Federal Magistrates Court Rules 2001 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| House v R (1936) 55 CLR 499 Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123 In the marriage of Greedy (1982) FLC 91-250 In the marriage of Robinson (1991) FLC 92-209 Steen & Black (2000) FLC 93-005 White and White (1982) FLC 91-246 |
| APPELLANT: | Mr Manning |
| RESPONDENT: | Mrs Manning |
| FILE NUMBER: | DNC | 353 | of | 2010 |
| APPEAL NUMBER: | NA | 86 | of | 2011 |
| DATE DELIVERED: | 30 January 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 25 January 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 October 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1121 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Supleglav |
| SOLICITOR FOR THE APPELLANT: | DS Family Law |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manning & Manning has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 86 of 2011
File Number: DNC 353 of 2010
| Mr Manning |
Appellant
And
| Mrs Manning |
Respondent
REASONS FOR JUDGMENT
Introduction
On 3 November 2011 the husband filed an appeal against the order of Federal Magistrate Turner made 7 October 2011. That order dismissed the husband’s application for costs. The substantive application before the Federal Magistrate was for enforcement of property orders filed by the husband on 12 July 2011.
Should the appeal be allowed the husband asks that the order be set aside and that the wife pay his costs of and incidental to the enforcement application and that such order for costs be on an indemnity basis.
The notice of appeal asserts five grounds of appeal. It is useful to reproduce them as they effectively summarise the husband’s arguments. The grounds provide:
1)The Learned Federal Magistrate erred in finding that:
(a) the wife was being proactive in trying to secure finance;
(b) the wife did everything she could to try and effect settlement in time; and
(c) the enforcement proceedings were settled on the first mention date.
2)The Learned Federal Magistrate erred in exercising her discretion by reason of her failure to take into account, or to give sufficient weight to, the relevant circumstances of the proceedings and the parties as prescribed pursuant to section 117 (2A) of the Family Law Act (1975) and specifically, sub-sections (a), (d) & (e) respectively.
3)The Learned Federal Magistrate erred in exercising her discretion by reason of her failure to take into account, refer to, or give sufficient weight to, the available affidavit evidence filed by the parties.
4)The Learned Federal Magistrate erred in exercising her discretion by reason of the fact that she gave any or excessive weight to the wife having paid interest to the husband on the outstanding sum payable to him in accordance with the orders of 19 April 2011.
5)The Learned Federal Magistrate erred in failing to state adequately the reasons for her decision that an order for costs was not appropriate and that each party ought to bear their own costs.
The wife, who represented herself at the hearing of the appeal, appeared by telephone and opposed the husband’s appeal. In essence, the wife argued that she had used her best endeavours to comply with the orders.
Background
The parties’ relationship started in the early 1990’s. They were married in February 1999, and separated in September 2009.
Final property orders were made by consent on 19 April 2011. Various typographical errors made the amendment of the orders on 5 May 2011 necessary.
On 12 July 2011 the husband filed an application seeking to enforce part of those orders. It is important to appreciate the obligations on each party imposed by the orders. The orders relevant to the application provided:
1.That within 60 days of the date of these orders, the husband transfer to the wife all his right, title and interest in [the Darwin rental property].
2.That contemporaneously with the transfer in the proceeding paragraph, the wife:
(a)provide to the husband a registrable discharge of any and all mortgages or other encumbrances secured against [the Darwin rental property], including but not limited to mortgage No. 6… in favour of the Commonwealth Bank of Australia, and meet
(b)any costs associated with the transfer and indemnify the husband with respect to all costs, claims or expenses in connection with or pertaining to [the Darwin rental property];
(c) pay the husband the sum of $127,000.
The following appears to be uncontroversial. The date for the payment was on or about 20 June 2011. The wife had not complied nor had she been in contact with the husband, in relation to when she would pay the money to the husband. It was explained in his affidavit:
5.Having heard nothing further from either the wife directly or her solicitor, I raised the issue of her failure to comply with the 60 day time limit in an email to the wife dated Friday, 24 June 2011. …where she states, “I have just had conditional approval of my finance, and am waiting to hear if it has definitely been accepted or not. I expect to hear in the next few days. I have been advised that once approved, it should only take a couple of weeks to receive the funds, although I can’t guarantee that this will be the case. I will notify you as soon as I receive notification”.
The husband’s affidavit sets out the correspondence between the solicitors.
There was a dispute about a number of matters, none of which were able to be resolved. There was no assurance from the wife that the moneys would be paid nor a date sought for an extension of time to pay. Thus the husband filed the application.
The affidavit filed by the wife in response (filed by leave on 18 July 2011) explained that the wife had been attempting to obtain finance. Reference was made to the dispute between them about child support. The wife asked that the application be adjourned to allow her to obtain the finance. There was evidence attached to her affidavit indicating that this was likely as she had engaged a mortgage broker.
The orders, as sought by the husband in his application before the Federal Magistrate asked that:
1.The property known as and forming [the Darwin rental property] forthwith be placed on the market for sale, and the proceeds of sale be disbursed in the following manner and priority:
a.In discharging all mortgages and other encumbrances secured against [the Darwin rental property];
b.In payment of the marketing/sale/settlement costs of the [the Darwin rental property];
c.Payment of $127,000 to the husband, plus interest at the Federal Magistrates’ Court rate from 20 June 2011 until payment;
d. Payment of Court costs to the husband;
e. The balance then remaining to the wife.
2.The husband be appointed sole trustee for the sale of [the Darwin rental property], and keep the wife notified within 24 hours of receiving any offers with respect to the property.
3.The wife pay the husband’s costs of the Application on an indemnity basis.
The matter was adjourned on one occasion to allow for negotiation but on 18 July 2011 consent orders were reached. The wife has now compiled with the property orders.
Despite reaching consent on the property issues, the parties were unable to agree as to the costs of the application. This was the only issue requiring determination by the Federal Magistrate.
The husband sought $1,465 to cover the costs of his application and the adjournments. The sum sought for costs was on the scale.
Her Honour found that an order for costs would not be appropriate due to the following factors:
7.As a consequence of the matter being resolved, whilst there was no legal obligation placed on the wife in the April 2011 property orders to pay interest, the wife paid interest in the sum of over $2,500 to the husband in respect to the late payment of the moneys.
8.Further the matter settling at the first mention date.
9.It is also evident from the material that the wife was being proactive in trying to secure the finance, albeit it wasn’t secured in the time limit.
The transcript of the hearing before the Federal Magistrate reveals that the matter was settled on the basis that the wife paid the agreed sum to the husband on 26 August 2011. As mentioned, the due date was 20 June 2011. The wife also paid interest on that sum calculated in accordance with the Federal Magistrates Court Rules 2001. This sum was $2,505.80. To this extent the Federal Magistrate was in error in concluding that the wife was not obliged to pay interest.
The appeal
In essence, the submissions were that the Federal Magistrate was in error as to the three reasons she gave for denying the husband an order for costs, and that there was an absence of reasons.
Ground One
As stated previously this ground of appeal contended:
1)The Learned Federal Magistrate erred in finding that:
(a)the wife was being proactive in trying to secure finance;
(b)the wife did everything she could to try and effect settlement in time; and
(c)the enforcement proceedings were settled on the first mention date.
In addressing this ground it was submitted on behalf of the husband that the Federal Magistrate erred in her findings of fact relevant to the wife’s attempts to facilitate settlement.
In the husband’s view the wife was neither being “proactive” nor doing “everything she could” to “try and effect settlement in compliance with the timeframe prescribed in the Orders”, for the following reasons:
a)The Orders required the wife to discharge and refinance the existing home loan within 60 days, that is, by no later than 20 June 2011;
b)On the wife’s evidence, she failed to take any action with respect to seeking approval to refinance until 23 May 2011, some 5 weeks after the Orders were made;
c)The wife, by her solicitor’s made one request for information (a lease document) in order to “complete her financial application.” The wife did not make any subsequent request(s) for documents or information to enable the refinance to occur prior to the time period permitted by and the expiration of, the orders;
d)At the time of requesting the lease, that (sic) wife had not commence, any form of application for finance. Accordingly, to suggest that she required the lease to “complete” said application is misleading;
e)The wife permitted the 60 day time period to expire without prior notice, discussion or explanation to the husband or his solicitors as to inaction and subsequent inability to comply with the timeframe imposed by the Orders;
f)The wife informed the husband that she obtained conditional finance on 24 June 2011. However, correspondence from [Mr H] (annexed to her Affidavit) indicates that she applied for conditional finance on 21 June 2011, which was subsequently rejected;
g)The wife’s failure to comply with the orders within the requisite timeframe and without any communication in this regard with the husband’s solicitor’s (other than one letter as state (sic) above) necessitated the sending of correspondence to her solicitor on 27 June 2011, some 7 days after the expiry of the relevant time period;
h)The wife, through correspondence from her solicitors dated 29 July 2011, alleged that the husband had failed to provide materials / documents necessary to enable her to apply to refinance;
i)The wife had made no prior request for the information referred to in the correspondence dated 29 June 2011;
j)On one version of the wife’s evidence, she did not actually require any of the information requested in the abovementioned correspondence and had already obtained conditional finance some 5 days prior to the request for information being made by her solicitor;
k)The wife failed to liaise with the husband and keep him appraised of the progress of her application and the likely timeframe for completion, such that he was required to contact her and request this information;
l)The wife’s failure to take steps to effect the terms of the Orders without valid explanation necessitated the husband’s enforcement Application;
m)None of the correspondences received from the wife or her solicitors prior to the hearing of the enforcement application indicated with any certainty that the wife had and was continuing to use her best endeavours to obtain finance approval.
In response the wife submitted that the Federal Magistrate did not err in her findings of fact. In her written submissions relied on in the appeal it was said:
(a)The wife contacted her mortgage broker immediately after the court orders were drawn and instructed him to seek finance but did not have a response or initial outcome until 23 May 2011. The wife then continued her efforts to obtain finance until she achieved success.
(b)The wife made numerous requests for essential documentation to the husband, which were required to secure formal acceptance of finance;
27/4/2011 Lease requested by [the wife]
3/5/2011 Lease requested by [the wife’s solicitors]
10/5/2011Rent account statements requested by [the wife’s solicitors]
17/5/2011 Rent account statements requested by [the wife]
28/6/2011 Request for rental account statements by [the wife]
29/6/2011Request for rental account statements by [the wife’s solicitors]
(c)The husband did not comply with these requests in a timely manner, and did not supply the rental account bank statement until 6 July 2011, well after the 20 June 2011 deadline.
(d)The wife paid interest for the delay in paying the settlement money, in a timely manner and without any objection. $127,000 was paid in accordance with the orders, as well as an interest component of $2,505.80 was paid at settlement surmounting to 67 days at a rate of 10.75 per cent.
(e)The husband was notified by the wife of the delay in obtaining finance prior to the 20 June 2011 deadline, via text message 17/06/2011, which was acknowledged by the husband.
(f)The wife informed the husband of her intention to continue her endeavours to secure finance for the property, via text message 17/06/2011, which was acknowledged by the husband.
(g)The wife informed the husband of conditionally approved finance via text message 24/06/2011, which was acknowledged by the husband.
A major part of the wife’s “defence” was that it was necessary to have the rental documents to prove to the proposed lenders that the property had a good rental history. Whilst this may be correct the husband said the following in paragraph 7 of his affidavit:
On 29 July 2011, I am advised and verily believe that my solicitors received correspondence in reply from [the wife’s solicitors] which made a number of claims as to why the wife was unable to obtain funding. Specifically, the wife claimed to have asked me to provide her with rental deposit statements for [the Darwin rental property] for the part three months. I confirm that I have never been asked directly by the wife to provide these statements to her. This is simply untrue.
Unfortunately in the wife’s affidavit in reply she did not take issue with this statement.
Further, counsel for the husband correctly took objection to parts of the wife’s submissions where there was no evidence before the Federal Magistrate, and where there was no attempt to place further evidence before the appeal court. Thus, the wife cannot rely on paragraphs 1(e), (f) and (g) of her submissions.
Ground 2
Ground 2 contended that:
2)The Learned Federal Magistrate erred in exercising her discretion by reason of her failure to take into account, or to give sufficient weight to, the relevant circumstances of the proceedings and the parties as prescribed pursuant to section 117 (2A) of the Family Law Act (1975) and specifically, sub-sections (a), (d) & (e) respectively.
It was said on behalf of the husband that her Honour, in her reasons for judgment, made no reference to s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”).
Given the circumstances of this case it was submitted that the Federal Magistrate ought to have considered s 117(2A)(a) of the Act as upon the implementation of the orders the wife’s financial circumstances would be more favourable than the financial circumstances of the husband (see White and White (1982) FLC 91-246).
It was also submitted that the Federal Magistrate failed to consider, or give appropriate weight to s 117(2A)(d) of the Act. The husband contended that the “wife’s inaction in securing finance was deliberate and resulted in default”, further “[n]otwithstanding the imposition of a 60 day timeframe for compliance (by consent) the wife took no action whatsoever until 23 May 2011, some 5 weeks after the Orders were made”. It was the husband’s submission “that there was simply no basis or justification for the delay”.
As to the wife’s solicitor’s request on 29 June 2011, it was submitted that it was a retrospective attempt by the wife to justify her delay in seeking to comply with the orders. It was asserted “this conclusion can be drawn from the circumstance of the wife receiving finance approval prior to, and in the absence of, the requested information”.
It is the submission of the husband that the wife’s failure to comply with the orders and her “failure to communicate” necessitated the filing of the enforcement application. This submission is well founded.
For the husband, her Honour also failed to consider and attribute sufficient weight to s 117(2A)(e) of the Act. It was said:
26.The enforcement application was resolved by consent on 18 July 2011. The wife then took steps necessary to obtain finance, and formal settlement occurred on 26 August 2011. Accordingly, the husband’s Application was wholly successful in terms of enforcing the Orders as against the wife. Accordingly, it is submitted that the wife was wholly unsuccessful within the meaning of section 117(2A)(e) of the Act, a matter (together with the provisions of 117(2A)(a) and (d)) that should have been considered by the LM in the judgment.
The wife explained that she experienced difficulty in securing finance after the consent orders for reasons beyond her control. Those reasons were said to include “the changing economic market which [resulted] in lenders implementing harsher lending criteria”, that she could not comply with the lenders requirements for rental account statements as those documents were withheld by the husband, and that the wife was unable to substantiate her total income to the lender, as the husband had withheld child support payments for a six month period.
Ground 3
This ground, as articulated by the husband provided:
3)The Learned Federal Magistrate erred in exercising her discretion by reason of her failure to take into account, refer to, or give sufficient weight to, the available affidavit evidence filed by the parties.
The husband submitted her Honour relied solely on facts which were not contained in either parties’ affidavit material, to the exclusion of a number of matters which were contained in the husband’s affidavit, which were either “agreed or, not directly disputed by the wife”. These matters were said to include:
a)the wife was obligated to obtain finance by 20 June 2011 and did not do so;
b)the husband heard nothing further from the wife or her solicitor regarding her failure to comply, until he sent an email to the wife on 24 June 2011;
c)the husband’s solicitor sent correspondence to the wife’s solicitor on 27 June 2011, regarding the wife’s failure to refinance;
d)the wife’s solicitors sent a reply on 29 June 2011, stating the wife had requested various documents from the husband to enable her to refinance;
e)the wife did not in fact require the documents requested in her solicitor’s correspondence in order to obtain finance;
f)the wife made one request for information in May, which was complied with the following day.
As mentioned already, the wife’s position is that she had done her best.
Ground 4
Ground 4 asserted that:
4)The Learned Federal Magistrate erred in exercising her discretion by reason of the fact that she gave any or excessive weight to the wife having paid interest to the husband on the outstanding sum payable to him in accordance with the orders of 19 April 2011.
It was the husband’s submission that the sum owing to him pursuant to the orders constituted the “payment of money” for the purposes of s 117B(1) of the Act, with the fact that the orders were made by consent being irrelevant (see: Steen & Black (2000) FLC 93-005). Therefore it was said “interest was payable on the sum to be paid to the husband in accordance with the Orders, from the date on which the Orders were made”.
It was said that her Honour “was erroneous in concluding that the wife’s obligation to pay interest precluded a finding that an order for costs was appropriate in the circumstances”.
Further it was submitted:
35.…there is no relevant connection between the wife paying interest to the husband in accordance with section 117B(1), and whether an award for legal costs (incurred by virtue of the enforcement application) is appropriate. There was no reference to (sic) the LM as to which subsection of the Act she invoked in relying on payment of interest as a basis for dismissing the husband’s application for costs.
36.The payment of costs, and interest respectively, deal with two distinct forms of prejudice to the husband and serve two different purposes.
37.The husband incurred legal costs as a result of bringing the enforcement application. This loss is separate and distinct from the inconvenience (and financial detriment to him) of late payment from the wife.
38.The LM took the view that the wife was not required to pay interest on the outstanding sum pursuant to the Orders. A failure to make provision of interest in orders does not prevent such interest being paid. The only requirement of section 117B is that there be a payment of money owing. In the event the wife refused to pay interest in accordance with the section, the husband would be in a position to claim said interest by way of an appropriate application to the Court.
As already observed, the Federal Magistrate was incorrect in not appreciating that the wife was obliged to pay interest. However, the fact that the interest was paid minimised the effect of the failure to pay on the due date and was a proper matter to be taken into account.
Ground 5
Ground 5 contended that:
5)The Learned Federal Magistrate erred in failing to state adequately the reasons for her decision that an order for costs was not appropriate and that each party ought to bear their own costs.
It was submitted her Honour’s reasons for judgment are insufficient given no reference was made to the relevant legislation or legal principles concerning costs.
Further it was said that “[a]side from (what is submitted to be an erroneous reliance on) a reference to payment of interest, there was no discernable basis upon which the LM dismissed the husband’s application for costs”.
The reasons, being three in number, were coherently expressed. The absence of further reference to the legislation or that some factors were more or less important than others has never been regarded as a basis to allow an appeal against costs orders (see Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123).
Relevant law
It is useful in this case to refer to the well known passage from House v R (1936) 55 CLR 499 where it was said by Dixon, Evatt & McTiernan JJ at 504-05:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
Section 117 of the Act governs costs. It is clear from the legislation that the primary position is that each party pay their own costs. There is no presumption that an order for costs will be made. Subsections 117(1), (2) and (2A) relevantly provide:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant. (emphasis added)
Section 117B provides for interest on moneys ordered to be paid. That section provides:
(1) Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from:
(a)the date on which the order is made; or
(b) the date on which the order takes effect;
whichever is later, on so much of the money as is from time to time unpaid.
(2) A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first-mentioned order or may order:
(a) that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or
(b) that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1).
In the marriage of Robinson (1991) FLC 92-209 it was said that although an appeal court should be very reluctant to interfere with the exercise of discretion in respect of costs, it can and should interfere when the result is “plainly unjust or if the discretion was exercised on wrong principles”. This appeal does not fall into that category.
It is also accepted that, an appeal court will uphold an exercise of discretion to order costs (or refuse such an order) if it is apparent that there are appropriate reasons on which the judge could rely (see In the marriage of Greedy (1982) FLC 91-250).
Conclusion
In view of the circumstances of this case I am of the view that, while the submissions of the husband have merit, it cannot be said that the order of the Federal Magistrate in refusing to make an order for costs was plainly unjust or was an error of discretion such that the appeal should be allowed, and the order set aside.
It must be observed that the expense occasioned by an appeal hardly seems proportionate to the remedy sought by the husband, that the wife pay the costs as originally sought in the sum of $1,465 or that there be a re-hearing of this issue.
It is appreciated that the husband feels greatly aggrieved by the decision of the Federal Magistrate. It must be appreciated that to make or deny an order for costs it is a highly discretionary decision and by no means automatic. Whilst it can be said that it was necessary for the husband to bring the enforcement application, the fact that the wife ultimately paid the husband the sum required, albeit delayed, does not automatically require an order for costs.
It is plain from the Rules that “costs do not follow the event”. The wife did take steps to settle, there was no evidence of any dishonesty or other conduct on behalf of the wife which would ordinarily attract an order for costs.
The decision of the Federal Magistrate to refuse the application for costs was not so far outside the discretion to be exercised on the evidence as to cause the appeal to be allowed.
Costs
At the conclusion of the hearing submissions as to the costs of the appeal were heard.
Counsel for the husband asked that should the appeal be allowed an order be made that the husband receive a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The wife, although unrepresented at the appeal said that her solicitors had sent her a bill for the costs of the appeal in the order of $3,500. This seems remarkable in the circumstances.
There should be no order as to costs. While it is very difficult to appreciate that the husband was justified in bringing this appeal in view of the sum sought, in family law proceedings there are often other motivations. There were some proper grounds to argue the appeal, as put capably by counsel for the husband.
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 30 January 2012.
Associate:
Date: 30 January 2011
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