Medlon and Medlon (No 7) - [2015] FamCAFC 246

FAMILY COURT OF AUSTRALIA

MEDLON & MEDLON (NO 7)

[2015] FamCAFC 246

FAMILY LAW – APPEAL – NOTICE OF APPEAL – ENFORCEMENT – Where the wife alleges error by the trial judge in failing to off-set against the costs order the husband’s “non-compliance” with previous orders – Where the wife says no reference was had by the trial judge to the prejudice that would be caused to her by enforcement of the orders and that it should have been found that the respondent’s application was vexatious and an abuse of process – Where there is no error by the trial judge – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the wife blatantly disregarded the order made for the filing of such an application – Where in the interests of justice an extension of time was granted – Where most of the evidence sought to be presented was irrelevant or inadmissible – Where the evidence the wife was permitted to rely on does not demonstrate error by the trial judge – Application dismissed.

FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the husband seeks that the wife pay his costs on an indemnity basis – Where there are circumstances which justify an order for costs being made – Where the appeal was misconceived, had no chance of success and should not have been brought – Where the husband has been put to unnecessary cost in responding to the appeal and to the application in an appeal – Where the wife relies on her financial circumstances and opposes the application – Where the wife has ongoing employment and has assets including real estate and thus has financial resources available to her – Where impecuniosity is not a bar to a costs order being made when the circumstances justify such an order – Where there are exceptional circumstances present here to justify a departure from the ordinary rule as to costs – Costs ordered on an indemnity basis in favour of the husband.

Family Law Act 1975 (Cth) – s 117(1), (2) and (2A)

CDJ v VAJ (1998) 197 CLR 172

Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248
D & D (Costs) (No 2) (2010) FLC 93-435
Kohan and Kohan (1993) FLC 92-340
Limousin & Limousin (Costs) [2007] 38 Fam LR 478
Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157
Munday v Bowman (1997) FLC 92-784

APPELLANT:

Ms Medlon

RESPONDENT:

Mr Medlon

FILE NUMBER:

ADC

491

2010

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

22 December 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:	8 September 2015
LOWER COURT JURISDICTION:	Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 March 2015

LOWER COURT MNC:

[2015] FCCA 1198

REPRESENTATION

THE APPELLANT:

In person by telephone link

COUNSEL FOR THE RESPONDENT:

Mr Heinrich

SOLICITOR FOR THE RESPONDENT:

Adelaide Family Law

Orders

8 September 2015

The time for the appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FamCAFC 246
Decision Date: 22 December 2015

CaseChat Overview and Summary

The matter of Medlon and Medlon (No 7) involved a dispute between the parties in the context of family law. The wife had appealed against a decision of the trial judge, challenging the costs order made against her. She argued that the trial judge had erred in not offsetting the husband's non-compliance with previous orders and had failed to consider the prejudice caused to her by enforcement of those orders. Furthermore, she contended that the trial judge should have found the husband's application to be vexatious and an abuse of process.

The legal issues before the court were whether the trial judge had erred in the costs order and whether the wife's application to lead further evidence in the appeal should be granted. The court found that there was no error by the trial judge in the costs order, as the wife had not demonstrated any such error. Additionally, the court dismissed the wife's application to lead further evidence, as she had blatantly disregarded the order made for the filing of such an application. Although an extension of time was granted in the interests of justice, most of the evidence sought to be presented was irrelevant or inadmissible. The evidence the wife was permitted to rely on did not demonstrate any error by the trial judge.

The appeal was dismissed, and the application in an appeal was also dismissed. The court further ordered that the wife pay the husband's costs of and incidental to the Notice of Appeal and the application in an appeal on an indemnity basis, as the appeal was misconceived, had no chance of success, and should not have been brought. The husband had been put to unnecessary cost in responding to the appeal and the application in an appeal. The wife opposed the application for indemnity costs, relying on her financial circumstances, but the court found that she had ongoing employment and assets, including real estate, and thus had financial resources available to her. The court concluded that impecuniosity was not a bar to a costs order being made when the circumstances justified such an order. The exceptional circumstances present in this case justified a departure from the ordinary rule as to costs.

Orders

Orders of the court

8 September 2015

The time for the appellant to file and serve an application seeking to lead further evidence in the appeal be extended nunc pro tunc to the close of business on 27 August 2015.

The appellant be permitted to rely on paragraphs 3, 4, and 8 of her affidavit filed on 27 August 2015 NOTING THAT only sentences 1 to 5 inclusive of paragraph 4 are to be relied upon.

The appellant be permitted to rely on paragraph 5 and annexures RMC3 and RMC4 of her affidavit sworn on 4 September 2015 and which affidavit the Court treats as being tendered this day.

The Notice of Appeal filed on 1 April 2015 be dismissed.

Judgment in relation to the application made on behalf of the respondent for costs be reserved.

22 December 2015

The application in an appeal filed on 27 August 2015 be dismissed.

The appellant wife pay the costs of the respondent husband of and incidental to the Notice of Appeal filed on 1 April 2015 and the application in an appeal filed on 27 August 2015 on an indemnity basis with such costs to be assessed in default of agreement.

Background

Background to the litigation

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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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