Marlin & Henson (No 2)

[2025] FedCFamC1A 105

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Marlin & Henson (No 2) [2025] FedCFamC1A 105

Appeal from:

Henson & Marlin (No 4) [2024] FedCFamC1F 713

Appeal number:

NAA 309 of 2024

File number:

BRC 10186 of 2020

Judgment of:

GILL, HOWARD & CHRISTIE JJ

Date of judgment:

18 June 2025

Catchwords:

FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly unsuccessful in the appeal – Where the respondent seeks indemnity costs and in the alternative party/party costs – Order for fixed party/party costs to be paid by the appellant to the respondent.

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Sch 3

Cases cited:

Quickley & Pelissier [2016] FamCAFC 124

Number of paragraphs:

14

Date of last submission:

27 May 2025

Date of hearing:

Determined in chambers on the papers

Place:

Delivered in Canberra

Solicitor for the Appellant:

Hirst & Co Family Lawyers

Solicitor for the Respondent:

KLM Solicitors

ORDERS

NAA 309 of 2024
BRC 10186 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MARLIN

Appellant

AND:

MS HENSON

Respondent

ORDER MADE BY:	GILL, HOWARD & CHRISTIE JJ
DATE OF ORDER:	18 JUNE 2025

THE COURT ORDERS THAT:

1.Senior counsel and junior counsel are certified.

2.The appellant pay costs fixed at $75,118.83 to the respondent within 56 days.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL, HOWARD & CHRISTIE JJ:

1. The respondent, who was successful in defending the appeal in this matter, now seeks her costs in relation to that appeal. The respondent seeks that those costs be met on an indemnity basis.

2. The appellant resists any costs order being made, resists an order for indemnity costs, and in any case resists a fixed amount award, arguing that the claimed amounts are excessive, in particular as they involve the retention of senior counsel.

   Principles and discussion

3. Costs are governed by s 117 of the Family Law Act 1975 (Cth). In broad summary, s 117 provides a scheme whereby the default is that each party bear their own costs, subject to consideration of the circumstances identified at s 117(2A) justifying an award of costs.

4. Three matters were identified by the parties from the s 117(2A) considerations, namely the appellant being wholly unsuccessful in his prosecution of the appeal, the early offer by the respondent to settle the dispute on terms significantly more favourable to the appellant than the outcome he received on the appeal, and the financial positions of the parties, where each has received significant property from the proceedings.

5. Of those matters the appellant contends that the significant property obtained by the respondent from the proceedings is sufficient reason to refuse costs. However, this is a matter of little weight in the context of the appellant also retaining significant property from the proceedings, the appellant’s lack of success, and the appellant’s refusal of the offer. These are sufficient to warrant an order for costs in favour of the respondent.

6. Whilst those circumstances are ample to justify an award of costs, they are not sufficient to constitute the extreme case necessary to justify an indemnity order, as identified by the Full Court (Strickland, Ainslie-Wallace and Duncanson JJ) in Quickley & Pelissier [2016] FamCAFC 124.

   Quantum

7. The appellant challenged the appropriateness of the respondent’s engagement of senior counsel and resisted the respondent's receipt of costs referable to that aspect of the litigation.

8. At the same time, in seeking to resist weight being assigned to either his lack of success, or his refusal of an offer that would have seen him better off to the tune of approximately $1 million, the appellant emphasised that the appeal “was not so devoid of merit” to mean that his pursuit of the appeal warranted indemnity costs, noting the particular issues engaged in respect of Capital Gains Tax. We agree with that submission but further observe that the issues that accompanied that argument as put by the appellant warranted the attention of senior counsel and junior counsel as engaged by the respondent. Accordingly, we would certify as to senior counsel and as to junior counsel. Although the appellant complains as to the retention of a different senior counsel prior to the trial, we are unable to see any unreasonableness in such an approach by the respondent such as to disentitle her to that aspect of her costs that we have determined should be met by the appellant.

9. As acknowledged by the appellant, where appropriate, the fixing of a sum for costs is a preferable approach in that it relieves the parties of the further steps occasioned by the assessment of costs.

10. In aid of such an approach the respondent annexed an itemised account expressed to be in accordance with Sch 3 of the “Family Law Rules 2004”, but apparently prepared based upon Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

11. Having examined the itemised account, the matters charged generally impress as fairly, reasonably and proportionately incurred, when considered in the light of an appeal of significant complexity despite the shortness of the hearing. The exception is the inclusion at item 156 of an amount for the senior counsel who appeared on the appeal styled as “preparation for Appeal Hearing including settling documents and Conferences/consultations (estimated 2 to 3 days) … $27,332.40”. Whilst it is appropriate for an amount to be charged for preparation for the appeal, three matters arise which point to the exclusion of this amount. The first is that where another King’s Counsel had already perused the material, drawn and settled the Summary of Argument and List of Authorities, and charged for such, the estimate for senior counsel can be anticipated to have entailed some duplication. Secondly, the amount indicated for senior counsel was in the form of an estimate of two to three days, falling short of indicating the work actually undertaken. The third is that the total amount, absent that line item for senior counsel, sits more comfortably within an appropriate range for an appeal of this nature.

12. Otherwise, when calculated in accordance with scale, the amount is fair, reasonable and proportionate. Under those circumstances, there is sufficient basis to set a fixed sum as calculated in the schedule.

    Conclusion

13. Certification will be made for senior and junior counsel.

14. An order will be made for the appellant to pay costs fixed at $75,118.83 within 56 days of the making of this order.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Gill, Howard & Christie.

Associate: 

Dated:       18 June 2025