Maudlin and Stock - [2020] FamCAFC 74

FAMILY COURT OF AUSTRALIA

MAUDLIN & STOCK

[2020] FamCAFC 74

FAMILY LAW – APPEAL – COSTS OF A DISCONTINUED APPEAL – Where the wife discontinued her Notice of Appeal four months after its filing – Where the husband seeks his costs of the discontinued appeal – Where the husband incurred costs prior to the wife’s discontinuance – Where the husband made an offer to not pursue his costs of the appeal if the wife paid a costs order made at first instance – Where the wife’s refusal of that offer was imprudent – Where the circumstances justify the making of an order for costs – Where the wife is to pay the husband’s costs fixed in the amount of $3,000.

Family Law Act 1975 (Cth) ss 94AAA, 117

Lenova & Lenova (Costs) [2011] FamCAFC 141

APPELLANT:

Ms Maudlin

RESPONDENT:

Mr Stock

FILE NUMBER:

DNC

483

2018

APPEAL NUMBER:

NOA

101

2019

DATE DELIVERED:

3 April 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

3 April 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 October 2019

LOWER COURT MNC:

[2019] FCCA 2919

REPRESENTATION

THE APPELLANT:

Self-represented by telephone

COUNSEL FOR THE RESPONDENT:

Mr Barry by telephone

SOLICITOR FOR THE RESPONDENT:

Darwin Family Law

Orders

The wife pay the husband’s costs incurred of and incidental to the appeal in the fixed sum of $3,000.

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 Maudlin & Stock 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 101 of 2019
File Number: DNC 483 of 2018

Ms Maudlin

Appellant

And

Mr Stock

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an application by Mr Stock (whom for convenience will be referred to as “the husband”) for his costs as respondent to an appeal, consequent upon the discontinuance of that appeal by the appellant, Ms Maudlin (whom for convenience will be referred to as “the wife”).
Following a contested hearing on 14 October 2019, a Judge of the Federal Circuit Court of Australia (“the Federal Circuit Court”) made orders determining the husband’s application for discharge of spousal maintenance orders made some 20 years earlier. The orders made on 14 October 2019 provided for:
a)The cessation of an ongoing spousal maintenance order in the amount of $100 per week payable by the husband to the wife (which order was made on 17 March 2000);
b)Arrears under that order to be fixed in the amount of $11,600 and that all but $3,400 of that be discharged; and
c)The arrears of $3,400 be paid to the wife within 60 days.
The wife filed her appeal from those orders on 11 November 2019.
On 2 December 2019, the primary judge heard and determined the husband’s application for costs of his application for discharge of spousal maintenance orders. The primary judge determined that the husband was entitled to costs. After setting-off and discharging the arrears of $3,400 ordered on 14 October 2019, the primary judge ordered the wife to pay the balance of the husband’s costs fixed in the sum of $4,000. There has been no appeal from the 2 December 2019 orders.
The wife’s appeal from the 14 October 2019 orders filed on 11 November 2019, was, by orders made by the Appeals Registrar on 13 January 2020, listed for hearing on 10 March 2020. A direction was made pursuant to s 94AAA of the Family Law Act 1975 (Cth) (“the Act”) for the appeal to be dealt with by a single judge.
However, on 27 February 2020 the wife discontinued her appeal. That provoked the husband’s current application filed on 5 March 2020, by which the husband seeks his party and party costs of the appeal fixed in the amount of $4,144.15. The wife opposes the application.
Whilst the wife was legally represented on the husband’s application for discharge of the spousal maintenance orders, she seems to have represented herself on the costs determination of that application and has also continued to mainly be self-represented since. It appears that the wife had some legal assistance concerning attempts to resolve this dispute, as will be referred to, but she represented herself on the hearing of this application.
For his part, the husband has maintained legal representation throughout.

Resolution

Section 117 of the Act contains the statutory power for the Court to order costs. The exercise of discretion to order costs is predicated upon justifying circumstances within the meaning of s 117(2) of the Act upon consideration of the factors set out in s 117(2A).
As regards the financial circumstances of each party (s 117(2A)(a)), the husband deposes to his financial circumstances in his affidavit filed in support of his application on 5 March 2020.
In summary, on his evidence which is apparently not disputed by the wife, the husband earns income of about $50,000 per annum. He holds less than $5,000 worth of property, including savings of less than $100. He owes his lawyers $21,000, mainly for the proceedings in the Federal Circuit Court, and is paying off that debt by instalments. The husband lives with his partner of some 20 years in a home solely owned by her and said to be worth “around” $500,000. The husband’s partner owes debts of $110,000. She earns “around” $67,000 per annum and the husband deposes that his partner assists him financially and that “[w]e both struggle to make ends meet”.
For her part, beyond filing her response to this application on 20 March 2020 seeking dismissal of it, the wife has filed no evidence, including evidence as to her current financial circumstances. A major difficulty for the wife in this context is that the primary judge found her not to be frank about her financial circumstances. That finding was predicated upon a finding that the wife did not disclose a business she conducted or the earnings she derived from the business nor did she fully and frankly disclose her financial relationship with one Mr B. The primary judge made a number of further adverse findings concerning the wife’s evidence about her finances which need not be detailed beyond noting that the primary judge recorded a specific finding that the wife probably earned more than her claimed income of about $40,000 sourced to compensation payments. It is thus not possible to place reliance upon the wife’s evidence in the primary proceedings to reach any conclusions about her current financial circumstances and, as noted, the wife has declined to file any evidence on this application.
However, even if it were to be assumed that the wife is at a significant financial disadvantage when compared to the husband, as she asserts in her submission and as is contained by inference in her Notice of Appeal, or indeed if the wife could be described as having a limited financial capacity to meet any orders for costs, there are, by reference to the relevant considerations expressed in s 117(2A), some countervailing considerations.
Most significantly is the question of offers of settlement as referred to in subsection (f) of s 117(2A). Attached to his affidavit the husband sets out the party and party costs he has incurred as calculated by his solicitor about which more will shortly be said. Plainly the husband had incurred costs at a time when the wife, on 13 February 2020, with the assistance of her solicitor advanced an offer of settlement. In short, on 13 February 2020 the wife’s then solicitor forwarded an email setting out what may be described as constrained financial circumstances of the wife and advanced this:
…
My client is willing to withdraw the Appeal with no order as to costs. She maintains this settlement proposal. If your client does not accept same and proceeds with an application he will incur further legal costs which the prospects of recovering are not good. Should your client reconsider his position and be willing to move on with the Appeal gone, the offer is open to be accepted.
…
The email also states that the wife “is not in a financial position to pay further legal costs and our retainer was only to the extent of a resolution were this possible”.
The husband responded to that offer with an offer of his own. In summary, the husband agreed to forego his costs with respect to the appeal provided the wife agreed to a garnishee order directed to her compensation payments such that the wife pays $100 per week to discharge the costs of $4,000 ordered on 2 December 2019 in favour of the husband in the Federal Circuit Court proceedings. The wife refused that offer.
In my judgment, the wife’s refusal of that offer was imprudent. There was in existence an order requiring the wife to pay costs of the Federal Circuit Court proceedings. The offer of the husband did no more than provide for a means or mechanism of enforcement of that order without the parties incurring yet further costs. By the relevant time, as appears from the annexures to the husband’s affidavit, he had already incurred some costs of significance with respect of the appeal including, for example, counsel’s fees.
In my judgment, absent any cogent evidence from the wife concerning her current financial circumstances, the evidence surrounding the subject offers of settlement assumes determinative significance with the result that there ought be an order for costs in the husband’s favour. I reiterate that even if it were to be established that the wife was impecunious, that does not necessarily stand in the way of the making of a costs order (see, for example, Lenova & Lenova (Costs) [2011] FamCAFC 141.)
Whilst the wife’s appeal has been discontinued, and thus has not been heard on its merits, and it thus cannot be said that the wife was “wholly unsuccessful” within the meaning of subparagraph (e) of the subsection, it is a relevant consideration pursuant to subsection (g) that the wife instituted an appeal; put the husband to the expense of defending it; before electing not to pursue it.
None of the other considerations expressed in s 117(2A) operate to counter the considerations referred to for a costs order to be made. I note for example, that it is not in dispute that neither party is in receipt of Legal Aid.
As to the amount of costs that ought be ordered, as was discussed with the solicitor for the husband during the course of the hearing, it appears that some of his itemised costs are more in the nature of solicitor and own client costs rather than party and party costs. An example is the item claimed for “research regarding appeals procedure”. There also appears to be some potential duplication in some items. The solicitor for the husband frankly conceded having some difficultly in compiling the schedule and, in the result, did not challenge the proposition that on a party and party basis, the husband’s costs did not exceed the amount of $3,000.
For these reasons there will be an order that the wife pay the husband’s costs incurred of and incidental to the appeal in the fixed sum of $3,000.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 3 April 2020, edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 3 April 2020