Marsden & Winch (Costs)
[2008] FamCAFC 32
•20 March 2008
FAMILY COURT OF AUSTRALIA
| MARSDEN & WINCH (COSTS) | [2008] FamCAFC 32 |
| FAMILY LAW - APPEAL – Costs – Circumstances justifying order FAMILY LAW - APPEAL – Costs certificate – Whether a Federal appeal succeeds on a question of law – Meaning of “succeeds” – Must be either remitted or a different outcome ordered |
| Family Law Act 1975, s 117(2A), s 75(2) Federal Proceedings (Costs) Act 1981, s 6, s 9 |
| Marsden and Winch (No 3) [2007] FamCA 1364 |
| APPELLANT: | Mr Marsden |
| RESPONDENT: | Ms Winch |
| FILE NUMBER: | CAF | 65 | of | 2004 |
| FIRST APPEAL NUMBER: | EA | 94 | of | 2006 |
| SECOND APPEAL NUMBER: | EA | 125 | of | 2006 |
| THIRD APPEAL NUMBER: | EA | 110 | of | 2007 |
| DATE DELIVERED: | 20 March 2008 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Warnick, Thackray and Le Poer Trench JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 August 2006 22 November 2006 |
| LOWER COURT MNC: | [2006] FamCA 715 [2006] FamCA 1414 [2007] FamCA 1003 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self represented |
| SOLICITOR FOR THE APPELLANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Mr Nash |
| SOLICITOR FOR THE RESPONDENT: | McGuinness Eley |
Orders
That the court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981(Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal in proceedings EA 110/2007 and his cross-appeal in proceedings EA 125/2006.
That the appellant pay the costs of the respondent mother in relation to the appeal in proceedings EA 94/2006 as agreed, or in default of agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Marsden and Winch (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 94 of 2006; EA 125 of 2006; EA 110 of 2007
File Number: CAF 65 of 2004
| MR MARSDEN |
Appellant
And
| MS WINCH |
Respondent
REASONS FOR JUDGMENT
In November 2007 we delivered judgment in relation to three appeals and a cross-appeal against orders made in proceedings between Mr Marsden (“the husband”) and Ms Winch (“the wife”). We made directions inviting written submissions in relation to costs, which we have now received. These are our reasons in relation to the applications for costs made by each party.
Background
In August 2006, Faulks DCJ made parenting and property settlement orders in proceedings between the husband and the wife. The parenting orders denied the husband any direct contact with the only child of the marriage. In September 2006, the husband appealed against both sets of orders. The matter was assigned file number EA 94 of 2006 (“the first appeal”).
The husband applied for a stay of some of the orders. At the same time, he sought an order for supervised contact pending the hearing of the first appeal. In November 2006, Faulks DCJ granted a stay and made an order for supervised contact. His Honour also ordered the husband to pay the wife’s costs of the application. In December 2006, the wife appealed against the supervised contact order and the matter was assigned file number EA 125 of 2006 (“the second appeal”). The husband filed a cross‑appeal, challenging the order for costs and his Honour’s failure to make other orders sought. The cross-appeal was also assigned file number EA 125 of 2006 (“the cross-appeal”).
In May 2007, the husband filed an application seeking reinstatement of the contact visits, which had been suspended by the contact service that had been providing the supervision. The wife filed a response, seeking the discharge of the contact order. In August 2007, Faulks DCJ dismissed both the application and the response and ordered the husband to pay a portion of the wife’s costs. In September 2007, the husband appealed against the order dismissing his application and the order for costs. The matter was assigned file number EA 110 of 2007 (“the third appeal”).
We heard argument on all three appeals and the cross-appeal in October 2007. The husband was self-represented and the wife was represented by counsel.
At the outset of the hearing we drew attention to the fact that the second appeal, the cross-appeal and the third appeal all related to interlocutory issues which would fall away upon delivery of judgment in relation to the first appeal. We informed the parties that it was our intention to deliver judgment promptly on the first appeal. The parties then agreed it would be unnecessary for us to determine the merits of the second and third appeals and the cross‑appeal, save insofar as they related to the costs orders.
We delivered our judgment on 21 November 2007. We found there was no merit in the first appeal insofar as it challenged the parenting orders. We found that the property aspect of the first appeal had merit, but only insofar as it related to the adequacy of his Honour’s reasons concerning the s 75(2) adjustment. On the re-exercise of his Honour’s discretion we arrived at precisely the same result he had reached. We therefore dismissed the first appeal. We also dismissed the second appeal, which had not been pursued. We allowed the cross-appeal and the third appeal insofar as they related to the costs orders and we discharged the costs orders against the husband.
Applications and submissions
The wife proposed there be no orders as to costs in relation to the second and third appeals and the cross‑appeal. Her counsel drew attention to the fact that the only issues argued before us concerning those matters related to costs. It was submitted that the argument took only “a matter of minutes” in the appeal hearing, which lasted for the best part of two days. It was further submitted that “because of the small time taken on the costs issues and their minimal impact overall” no factor or combination of factors in s 117(2A) of the Family Law Act 1975 warranted any order for costs on either of the appeals or the cross‑appeal.
The wife sought an order for the husband to pay her costs of the first appeal. It was submitted that the husband had assets worth over $1.3 million; that he “chose” to represent himself on the appeal and that the hearing was unnecessarily prolonged because of the way he conducted the appeal. It was further submitted that the husband was entirely unsuccessful in relation to both the parenting and property aspects of the first appeal.
In his response, the husband applied for costs of the second appeal on the basis that the wife had been entirely unsuccessful. He acknowledged that whilst the time the Court had spent dealing with this appeal was “minimal”, he had nevertheless incurred significant costs in preparation.
The husband sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 in relation to the cross‑appeal and the third appeal. He submitted that the cross-appeal was “primarily due” to the costs order made against him and he noted he had been successful in having both costs orders discharged. The husband submitted that “considerable time” had been spent in argument in relation to the cross‑appeal and the third appeal and that he had incurred “significant” costs in preparation.
The husband took issue with the wife’s assertion that he had unnecessarily prolonged the hearing of the first appeal. He also denied he was as wealthy as had been made out and submitted that most of his assets were tied up in real estate. He further submitted that the “husband’s matters had appealable error and were successful” and that if the trial Judge had provided adequate reasons of his treatment of the s 75(2) factors, the necessity for an appeal may have been “negated”.
The husband submitted that the error we identified in the trial Judge’s treatment of the s 75(2) factors was sufficient to warrant the granting of a costs certificate and that “there should be no order made against the husband under s 117 (2A)(e) as there was appealable error, regardless of no order being made”. (Section 117(2A)(e) is the provision indicating that in determining whether to make an order for costs, the Court must have regard to whether any party has been “wholly unsuccessful”.)
The husband concluded his submissions by suggesting, in effect, that if we were minded to make an order against him for costs in relation to the appeal concerning the parenting orders, those costs should be offset by the costs the wife should pay him in relation to the second appeal.
In reply, the wife took issue with the husband’s assertions concerning the parties’ financial positions. The wife submitted, correctly in our view, that some of the financial information on which the husband relied had not been properly proven in evidence. It was further asserted that it was “quite impractical” for the husband to submit that had the trial Judge dealt differently with the s 75(2) factors, the need for an appeal against the property orders may have been “negated”. In this regard, attention was drawn to the fact that the husband’s grounds of appeal extended well beyond the s 75(2) issue and that the scope of the appeal narrowed only during the course of the hearing.
Discussion
Both parties properly conceded at the outset of the hearing before us that they would not pursue the second and third appeals and the cross-appeal (save as to the costs orders) on the basis of our assurance that the judgment in relation to the first appeal would be delivered promptly. The merits of these matters were never determined. In those circumstances, it would be inappropriate for the wife to be required to pay the husband’s costs of the second appeal.
In our view, both parties should be granted certificates pursuant to the Federal Proceedings (Costs) Act 1981 in relation to the cross‑appeal and the third appeal, each of these having succeeded on a question of law. The legislation provides, however, that the Court may only grant a certificate upon application being made by the party who will receive the benefit of the certificate. Whilst the husband has sought certificates for both parties, the wife has not sought a certificate. We propose to allow her 28 days from the date of delivery of these reasons to make an application for certificates. We foreshadow that such an application will receive favourable consideration.
We do not consider we have power to grant a certificate in relation to the property aspect of the first appeal, since the appeal was dismissed. It is true we found that his Honour erred by giving inadequate reasons for the s 75(2) adjustment, but on the re‑exercise of his discretion, we concluded that the decision he reached was the appropriate one. Appeals are made against orders, not reasons. We are therefore of the view that an appeal can only be said to have succeeded within the meaning of the legislation if a new trial is ordered or, alternatively, a different outcome is ordered following the re‑exercise of the discretion.
Had the husband’s complaint concerning the property orders been confined to the s 75(2) issue, we might have been inclined to order that each party pay their own costs of that aspect of the first appeal. However, the appeal originally extended much wider and the wife was put to expense in preparing for an appeal which was largely abandoned during argument. Furthermore, whilst we do not accept all that was put on behalf of the wife in relation to the time taken in argument, we do accept that the husband’s presentation of the appeal prolonged the hearing unnecessarily. The husband’s appeal in relation to the parenting orders was wholly unsuccessful. These factors, combined with what we find to be the somewhat stronger financial position of the husband, warrant an order for the husband to pay the wife’s costs of the first appeal.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 20 March 2008
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