Maple and Niu (Costs)
[2016] FamCAFC 155
•18 August 2016
FAMILY COURT OF AUSTRALIA
| MAPLE & NIU (COSTS) | [2016] FamCAFC 155 |
| FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs of the appeal – Where the appellant was wholly unsuccessful in the appeal – Financial circumstances of the parties – Conduct of the parties to the proceedings – Where it is appropriate for the court to make an order as to costs – Whether costs should be ordered on a party/party or indemnity basis – Where the circumstances do not warrant an order for indemnity costs – Where the appellant is to pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed. |
| Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A) |
Family Law Rules 2004 (Cth) r 13.05
| Colgate Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225 |
| APPELLANT: | Mr Maple |
| RESPONDENT: | Ms Niu |
| FILE NUMBER: | NCC | 1862 | of | 2007 |
| APPEAL NUMBER: | EA | 89 | of | 2014 |
| DATE DELIVERED: | 18 August 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Cronin JJ |
| HEARING DATE: | Heard by way of written submissions: submissions received from the Respondent on 2 June 2016 and the Appellant on 1 July 2016; Respondent’s further submissions received on 7 July 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 June 2014 |
| LOWER COURT MNC: | [2014] FamCA 421 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Graham |
| COUNSEL FOR THE RESPONDENT: | Mr Levick |
| SOLICITOR FOR THE RESPONDENT: | Attwaters |
Orders
Mr Maple is to pay the costs of Ms Niu of the appeal as agreed or in default of agreement, as assessed within twenty-eight (28) days of such agreement or assessment.
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 Maple & Niu (Costs) 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 SYDNEY |
Appeal Number: EA 89 of 2014
File Number: NCC 1862 of 2007
| Mr Maple |
Appellant
And
| Ms Niu |
Respondent
REASONS FOR JUDGMENT
Introduction
On 6 May 2016 the Full Court dismissed the appeal of Mr Maple (“the father”) against orders made by Cleary J on 20 June 2014 (Maple & Niu [2016] FamCAFC 70). The respondent to that appeal, Ms Niu (“the mother”), now seeks an order that the father pay her costs of the appeal and that those costs be fixed in the sum of $21,272.78 or assessed on an indemnity basis. The father opposes the mother’s application and proposes that there be no order as to costs.
In the ordinary course each party to proceedings under the Family Law Act 1975 (Cth) (“the Act”) is to bear his or her own costs (s 117(1)) but, if the court is of the opinion that there are circumstances that justify it in doing so, the court may make such order as to costs as it considers just (s 117(2)). In considering whether to make such a costs order the court is obliged to have regard to the matters set out in s 117(2A).
The matters raised for consideration by the mother are that neither party is in receipt of a grant of legal aid (s 117(2A)(b)), the father was wholly unsuccessful in the appeal (s 117(2A)(e)) and the conduct of the father “in relation to his compliance with and resistance to the restraining order” (s 117(2A)(g)). The reference to the restraining order is a reference to an order made on 19 March 2008 which restrained the father from entering into a defined part of W Street, Suburb S unless with the consent in writing of the mother who lived in that part of the street.
For his part the father submitted that his poor financial circumstances (s 117(2A)(a)), the strength of his appeal (s 117(2A)(e)) and the appropriateness of his appeal (s 117(2A)(g)) indicated that the appropriate order was that each party should bear their own costs.
Discussion
We turn to a discussion of these factors in order to determine the question of whether to make an order for the father to pay the mother’s costs of the appeal.
The fact that neither party is in receipt of legal aid is irrelevant.
The father sought to rely upon a financial statement prepared pursuant to r 13.05 of the Family Law Rules 2004 (Cth) which was filed along with his submissions as to costs. This statement demonstrated that the father had a surplus of approximately $300 per week of income over personal expenditure but did not have significant assets. The father said that his income varies from week to week depending upon the work available.
The mother opposed the admission of the father’s financial statement and submitted that a formal application for leave to adduce evidence should be filed. In that event, should that leave be granted, the mother proposed that she too would adduce evidence of her financial position. Having regard to the need to finalise proceedings as quickly, simply and with as little cost to the parties as possible and, having regard to the orders that we will be making as to costs, we propose to take into account the father’s financial statement and not accede to the mother’s application for her to adduce further evidence and submissions.
Whilst it may be seen that the father is not in a strong financial position, it is also well established that impecuniosity is not, of itself, a bar to a costs order (Lenova & Lenova (Costs) [2011] FamCAFC 141).
In order to explain the mother’s submissions as to the conduct of the father it is necessary to explain briefly the history of the proceedings.
On 19 March 2008, by consent the court made the following order:
21.2The father is restrained from entering upon [W] Street, [Suburb S] between [X] Street and [Y] Street unless with the consent in writing of the mother.
On 27 June 2011 the father purchased and moved into W Street which was within the area from which he was barred.
On 27 March 2012 the court found that the father’s actions in buying and moving into W Street contravened that order and the father was ordered to pay the mother’s costs in the sum of $5855.
On 3 May 2013 the court found that the father had continued to contravene that order and he was ordered to enter into a 12 month good behaviour bond.
As part of the orders made by the primary judge on 20 June 2014 all existing parenting orders were discharged and the following restraining order was made:
(13)The father is restrained from being or residing within 500 metres of the mother’s place of residence.
A significant part of the appeal involved the father’s contentions that there was no power to make that order. A subsidiary question was whether or not the 19 March 2008 order was a parenting order which was discharged by the orders of 2014 or whether it remained on foot. That aspect of the matter was resolved by consent on the basis that, in the event the appeal was unsuccessful, the earlier order would be discharged.
The primary judge found:
149.Each of these parents has brought contravention applications against the other with varying degrees of success. A significant contravention was the father buying and living in a property in the street where the mother lives. Non-compliance with orders by both parents has led to a great deal of litigation and trouble.
Having regard to that finding, the conduct of the father cannot be seen in isolation from the mother’s conduct. As the primary judge regarded the father’s contravention as significant, his conduct is deserving of some, but not significant, weight.
Finally, the appeal was wholly unsuccessful. This remains so notwithstanding the submission of the father that the appeal was “arguable and had sufficient merit”.
Conclusion
Having regard to the above matters we are of the view that the appropriate order as to costs is that the father pay the mother’s costs of the appeal.
The mother adduced no evidence of her costs and it is not possible to determine the basis on which the sum of $21,272.78 was calculated. We are therefore not in a position to fix the costs, even if we considered that to be an appropriate course to take.
Indemnity costs
The question then is whether such costs be paid on a party and party basis or on an indemnity basis. Costs on an indemnity basis are awarded only in exceptional cases: Kohan & Kohan (1993) FLC 92-340 at 79 614; see also Limousin & Limousin (Costs) (2007) 38 Fam LR 478 and D & D (Costs) (No.2) (2010) FLC 93-435.
The mother referred to the well-known decision of Sheppard J in Colgate Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225 in which it was said the following ground was identified as a basis for indemnity costs:
Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success.
In fact, these are not the words of Sheppard J but rather those of Woodward J in Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited (1988) 81 ALR 397 at 400-401 which were quoted in Colgate with approval. Nonetheless, the principle is correctly identified.
In making the submission the mother submits that there were no proper grounds for an appeal and “that the appeal with respect to the restraining order was reflective of the appellant’s refusal to accept or comply with that order except under compulsion”. A submission that the appeal was unsuccessful falls a long way short of identifying a circumstance that justifies indemnity costs. We do not regard the appeal as being so devoid of merit as to justify indemnity costs.
As we have already identified, the conduct of the father is a matter to be taken into account along with the mother’s conduct, but neither was determinative. The father’s conduct is not sufficient to justify an order for indemnity costs.
It follows therefore that costs will be assessed on a party and party basis, if the parties cannot reach an agreement on the amount.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Cronin JJ) delivered on 18 August 2016.
Associate:
Date: 18 August 2016
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