Martins & Chapman
[2021] FamCAFC 136
•22 July 2021
FAMILY COURT OF AUSTRALIA
Martins & Chapman [2021] FamCAFC 136
Appeal from: FCCA orders made on 23 February 2021 Appeal number(s): SOA 12 of 2021 File number(s): MLC 4188 of 2020 Judgment of: STRICKLAND J Date of judgment: 22 July 2021 Catchwords: FAMILY LAW – APPEAL – Where the matter was adjourned to enable time for the appellant father to file an amended Notice of Appeal and the respondent mother to file an amended Application in an Appeal – Where both parties took the opportunity to file amended documents – Where the appellant father subsequently seeks to withdraw his Appeal – Appeal dismissed.
FAMILY LAW – COSTS – Where an application for costs was made on behalf of the respondent mother – Where an order for costs is justified in this Appeal – Where the appellant father’s financial circumstances need not be a bar to an order for costs where same is justified – Costs order made.
Legislation: Family Law Act 1975 (Cth) ss 96AA, 117, 117(2A) Division: Appeal Division Number of paragraphs: 7 Date of hearing: 22 July 2021 Place: Melbourne by way of Microsoft Teams audio link Solicitor-Advocate for the Appellant: Mr A DeFraine Solicitor for the Appellant: ABF Legal Counsel for the Respondent: Ms E Mallett Solicitor for the Respondent: Rebecca Boreham, Barristers & Solicitors ORDERS
SOA 12 of 2021
MLC 4188 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR MARTINS
Appellant
AND: MS CHAPMAN
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
22 JULY 2021
THE COURT ORDERS THAT:
1.The amended Notice of Appeal filed on 13 July 2021 be dismissed.
2.The appellant father pay the respondent mother’s costs fixed in the sum of $2,500.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Martins & Chapman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This is a further directions hearing in relation to this appeal. The purpose of this directions hearing was to enable the appellant father to file and serve, if so advised, an amended Notice of Appeal, and to also enable the respondent mother, if so advised, to file an amended Application in an Appeal together with a supporting affidavit seeking dismissal of the appeal pursuant to section 96AA of the Family Law Act 1975 (Cth) (“the Act”). An amended Notice of Appeal has been filed and an amended Application in an Appeal has also been filed.
The position now reached is that after hearing submissions from the appellant father’s counsel, and counsel taking instructions from him, the appellant father seeks to withdraw the appeal. On that basis, I propose to dismiss the appeal.
Given that, there is now an application for costs before the Court on behalf of the respondent mother. The amount sought in total is $3,402, being $900 for preparation and two appearances at $1,251 each.
The appellant father’s position in relation to costs, as his counsel put to me, is that he understands that costs normally follow the event, but that is actually not what happens in this Court. Section 117 of the Act provides initially that each party is to bear their own costs, but then provides that if there are circumstances that justify an order for costs, this Court can make an order for costs, and in determining that, there are factors that the Court must have regard to in section 117(2A). So, applying section 117, there are circumstances here that justify an order for costs, given that the appeal has been withdrawn and will now be dismissed.
In terms of the relevant factors under section 117(2A), the primary factor here is the financial circumstances of the parties. In that regard, I am told by the appellant father’s counsel that his client works as a concreter in the building industry and his work has been affected by the global pandemic. He last year earned $24,000 and has a number of children to support.
On the other side of the coin, the respondent mother is legally aided. She is not working but she is studying full time and she has a child to support.
Although the father’s financial circumstances could be described as limited, there is ample authority in this Court that even impecuniosity, which is not the father’s position, need not be a bar to an order for costs where there are circumstances otherwise that justify an order being made, such as apply here. Thus I propose to make an order for costs and under the Rules of Court, I am able to fix an amount that I consider is reasonable and appropriate. That amount will be $2,500.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 2 August 2021
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