FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Marvis & Marvis [2023] FedCFamC1A 34
Appeal from: Marvis & Marvis [2022] FamCFamC2F 1416 Appeal number: NAA 250 of 2022 File number: MLC 5187 of 2021 Judgment of: AUSTIN J Date of judgment: 21 March 2023 Catchwords: FAMILY LAW – APPEAL – Costs – Where the primary judge ordered the appellant husband to pay the respondent wife’s costs incurred in property settlement proceedings on the basis that the appellant had been “wholly unsuccessful” – Consideration of s 117 of the Family Law Act 1975 (Cth) (“the Act”) – Error of law – Where each party enjoyed nearly the same degree of success in the substantive cause – Where it is unnecessary to consider the remaining grounds – Appeal allowed – Re-exercise – Where none of the factors prescribed by s 117(2A) of the Act justify an order for costs in the respondent’s favour – Orders of the primary judge set aside – Costs – Where the question of costs of the appeal will be determined on the papers in chambers. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1
Cases cited: Anison & Anison (2019) FLC 93-908; [2019] FamCAFC 108
Franklyn & Franklyn(No.2) [2021] FamCAFC 160
Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9
Wrensted & Eades (2016) FLC 93-697; [2022] FedCFamC1F 238
Number of paragraphs: 49 Date of hearing: 21 March 2023 Place: Newcastle (via video link) Counsel for the Appellant: Ms Tulloch Solicitor for the Appellant: Kennedy Guy Counsel for the Respondent: Mr Carne Solicitor for the Respondent: Fogarty Lawyers ORDERS
NAA 250 of 2022
MLC 5187 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MARVIS
Appellant
AND: MS MARVIS
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
21 March 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 1 and 2 made on 20 October 2022 are set aside.
3.The respondent’s application for costs in the proceedings below is dismissed.
4.The appellant’s application for costs of and incidental to the appeal is to be determined on the papers in chambers, for which purpose:
(a)the appellant shall file and serve any evidence and written submissions upon which he relies by Friday 31 March 2023;
(b)the respondent shall file and serve any evidence and written submissions upon which she relies by Friday 14 April 2023; and
(c)the appellant shall file and serve any written submission in rely by Friday 21 April 2023.
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…
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- AGLC
- Marvis & Marvis [2023] FedCFamC1A 34
- Case
- [2023] FedCFamC1A 34
- Decision Date
CaseChat Overview and Summary
The case of Marvis & Marvis involved an appeal against costs orders made in family law proceedings between the parties. The appeal was lodged against the primary judge's decision to order the appellant, the husband, to pay the respondent's, the wife's, costs incurred from a certain date in the underlying property settlement proceedings, excluding any costs related to a caveat over the appellant's property. The appeal also contested the dismissal of the appellant's costs application against the respondent. The primary judge's decision was based on the finding that the appellant was wholly unsuccessful in the proceedings, which was the main premise for the respondent's costs application. The appellant argued that he had not been wholly unsuccessful and contested several other submissions made by the respondent in support of her costs application.
The central legal issue before the court was whether the primary judge correctly exercised their discretion in making the costs order in favour of the respondent. The court needed to determine if the primary judge's finding that the appellant was wholly unsuccessful in the proceedings was justified and whether that finding warranted the costs order made in favour of the respondent. Additionally, the court had to assess if the primary judge properly exercised their discretion in rejecting the respondent's other submissions in support of her costs application.
The court found that the primary judge erred in finding that the appellant was wholly unsuccessful in the proceedings. The court held that the appellant had not been wholly unsuccessful and that the primary judge's finding was not supported by the evidence. The court also found that the primary judge did not adequately consider the appellant's submissions and that the costs order was not justified on the basis of the parties' financial position or the appellant's rejection of the respondent's offer of settlement. The court allowed the appeal, re-exercised its discretion, and dismissed the parties' costs applications at first instance. The court determined that the costs of the appeal would be addressed in a later decision.
In summary, the appeal was allowed, the primary judge's costs order in favour of the respondent was set aside, and the costs applications at first instance were dismissed. The court's decision emphasised the importance of correctly exercising discretion in making costs orders in family law proceedings and highlighted the need for primary judges to carefully consider all submissions and evidence before making such orders.
The central legal issue before the court was whether the primary judge correctly exercised their discretion in making the costs order in favour of the respondent. The court needed to determine if the primary judge's finding that the appellant was wholly unsuccessful in the proceedings was justified and whether that finding warranted the costs order made in favour of the respondent. Additionally, the court had to assess if the primary judge properly exercised their discretion in rejecting the respondent's other submissions in support of her costs application.
The court found that the primary judge erred in finding that the appellant was wholly unsuccessful in the proceedings. The court held that the appellant had not been wholly unsuccessful and that the primary judge's finding was not supported by the evidence. The court also found that the primary judge did not adequately consider the appellant's submissions and that the costs order was not justified on the basis of the parties' financial position or the appellant's rejection of the respondent's offer of settlement. The court allowed the appeal, re-exercised its discretion, and dismissed the parties' costs applications at first instance. The court determined that the costs of the appeal would be addressed in a later decision.
In summary, the appeal was allowed, the primary judge's costs order in favour of the respondent was set aside, and the costs applications at first instance were dismissed. The court's decision emphasised the importance of correctly exercising discretion in making costs orders in family law proceedings and highlighted the need for primary judges to carefully consider all submissions and evidence before making such orders.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow, the appeal is allowed, discretion is re-exercised, and the parties’ costs applications at first instance are both dismissed. As agreed, the costs of the appeal will be determined later.Background On 2 August 2022, the primary judge pronounced property settlement orders between the parties under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Simultaneously, orders were made directing the parties to file written submissions in relation to the costs of the proceedings so any such dispute could be determined on the papers in chambers. The respondent filed written submissions seeking costs against the appellant. The appellant resisted the costs application and sought costs against the respondent in respect of the disputed costs application. On 20 October 2022, the primary judge made costs orders and published reasons to explain the orders made. The appeal lies from those orders. The primary judge ordered that the appellant husband pay the respondent wife’s costs incurred on or after 4 November 2021 in the underlying property settlement proceedings, but excluding any costs associated with the caveat registered over the appellant’s property (Order 1), and ordered such costs be paid within 60 days in the sum agreed or assessed under Sch 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (Order 2). The appellant’s costs application against the respondent was dismissed (Order 3). The principal premise for the respondent’s costs application was her assertion that the appellant had been “wholly unsuccessful” in the underlying proceedings (at [9]). She contended that was so because he sought the dismissal of her property settlement application and failed (at [6]), whereas she enjoyed some measure of success (at [10]). The appellant resisted the submission, contending he had not been wholly unsuccessful (at [16]), but the primary judge accepted the respondent’s submission (at [27]). The respondent also contended the appellant’s superior financial circumstances militated in favour of a costs order in her favour (at [14]), but the primary judge rejected the proposition and found no costs order was justified by the parties’ “financial position” (at [24]). The respondent also contended the appellant’s rejection of her offer of settlement justified the costs order in her favour (at [11]–[12]), but that submission was also rejected. The primary judge found the respondent actually received less under the property settlement orders than she offered to accept from the appellant (at [13] and [26]). The costs awarded in the respondent’s favour were confined to those accrued by her as and from 4 November 2021, which was the date from which the primary judge found she had properly particularised her case for property settlement relief at a mediation (at [29]–[31]).The Appeal As can be seen, the costs order made in favour of the respondent sprang from a finding that the appellant had been “wholly unsuccessful”. In that regard, the primary judge said:27.I consider there is merit in the [respondent’s] argument that the [appellant] was wholly unsuccessful.28.The [appellant] has throughout these proceedings argued for a nil adjustment on the basis of nil contributions and nil section 75(2) factors. The [appellant’s] case that the [respondent] did not receive as much as she sought or that she supported the removal of the caveat prior to the trial do not go to his success. He was wholly unsuccessful in this s 79 matter. Grounds 1, 2 and 3
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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