Miller and Miller
[2014] FamCAFC 167
•26 August 2014
FAMILY COURT OF AUSTRALIA
| MILLER & MILLER | [2014] FamCAFC 167 |
FAMILY LAW – APPEAL – COSTS – Where the matter came before the court requiring consideration of the husband’s application to reinstate his appeal – Where the parties were able to consent to discharging the respective spousal maintenance orders in light of a change in circumstances since those orders were made – Whether the husband should be required to pay the wife’s costs – Where the settlement represents a compromise by both parties – Where the husband engaged the appeals process in relation to interlocutory orders when there was a remedy available at first instance – Husband to pay the wife’s costs on a party/party basis.
| Family Law Rules 2004 (Cth): r 22.13 |
| Bienstein & Bienstein (2003) 195 ALR 225 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Smits v Roach (2006) 227 CLR 423 |
| APPLICANT: | Mr Miller |
| RESPONDENT: | Ms Miller |
| FILE NUMBER: | PAC | 1292 | of | 2013 |
| APPEAL NUMBER: | EA EA | 67 35 | of of | 2014 2014 |
| DATE DELIVERED: | 26 August 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 26 August 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 May 2014 |
| LOWER COURT MNC: | [2014] FCCA 962 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Claire Heaton Solicitor |
| SOLICITOR FOR THE RESPONDENT: | Tilley Family Law & Mediation |
Orders (EA 67/2014)
Notations
BY CONSENT, the Amended Application in an Appeal filed 25 August 2014 is withdrawn.
BY CONSENT, the parties will enter into consent orders to be filed in the Federal Circuit Court of Australia in proceedings number PAC 1292 of 2013 providing for the order made by that court on 13 May 2014 for the payment of spouse maintenance to be discharged effective as of 5 June 2014.
Orders
In relation to the Amended Application in an Appeal filed on 25 August 2014, the appellant husband pay the wife’s costs in the amount of $400 such costs to be paid as part of the final property orders.
Orders (EA 35/2014)
Notations
BY CONSENT, the Notice of Appeal filed 10 June 2014 is withdrawn.
BY CONSENT, the parties will enter into consent orders to be filed in the Federal Circuit Court of Australia in proceedings number PAC 1292 of 2013 providing for the order made by that court on 13 May 2014 for the payment of spouse maintenance to be discharged effective as of 5 June 2014.
Orders
That Order 1 of the orders dated 5 June 2014 is discharged.
That the appellant husband pay the wife’s costs in the amount of $400 such costs to be paid as part of the final property orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller & Miller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 67 of 2014
File Number: PAC 1292 of 2013
| Mr Miller |
Applicant
And
| Ms Miller |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
Before the court was an Amended Application in an Appeal filed by Mr Miller (“the husband) on 25 August 2014 to reinstate his Notice of Appeal filed on 10 June 2014. The appeal was against interim spousal maintenance orders made by Judge Dunkley on 8 May 2014.
That appeal was deemed abandoned because the husband had failed to file a draft appeal index within the time prescribed by r 22.13 of the Family Law Rules 2004 (“the rules”).
The husband had also appealed another (urgent) spousal maintenance order made by Judge Dunkley, being Appeal No EA 35 of 2014. That spousal maintenance order was made on 21 January 2014.
It is common ground that the amount due pursuant to both orders up to and including 5 June 2014 was $2,388. The significance of 5 June 2014 is that on that date Ms Miller (“the wife”) obtained employment.
The husband’s EA 35 of 2014 appeal came before the court on 5 June 2014. On that day, Mr Tilley who appeared for the wife, informed the court that his client would not seek to enforce compliance with the spousal maintenance order from the date she commenced employment, and an issue to be dealt with at trial would include whether or not the husband should be required to pay arrears that had arisen prior to 5 June 2014. So that it is clear, on behalf of the wife, it was indicated that the maximum amount payable by the husband pursuant to those orders would be $2,388.
The reason the husband filed an amended application was to add an order that I disqualify myself from hearing his appeals and the associated applications. This afternoon the disqualification application was withdrawn and it was indicated by the solicitor who appears for the husband that he concedes the disqualification application was doomed to fail. When regard is had to authority such as Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Bienstein & Bienstein (2003) 195 ALR 225, as well as Smits v Roach (2006) 227 CLR 423, there is no doubt that the disqualification application could not have succeeded.
Discussion followed as to the possible prejudice to the respondent of reinstatement of an appeal when the amount in dispute was $388 and the commercial reality of continuing an appeal when the amount in dispute was $2,000. This segued into agreement that the respective spousal maintenance orders could be discharged and the application in an appeal and the various appeals would be withdrawn.
That having taken place, the wife says the husband should pay her costs of the appeals and the application now withdrawn. The fact that the application and appeals have been withdrawn provides justifying circumstances for an order for costs. In seeking to resist the wife’s costs application, the solicitor for the husband contends that the settlement reached today has, in effect, been difficult to achieve and demonstrates compromise by both parties.
I accept the submission that the settlement does represent a compromise by both parties which weighs, to a degree, against an order for costs and if an order for costs is to be made, should influence the quantum of the costs ordered.
Of greater significance, however, is the amount in dispute in both appeals and that the husband has sought to engage an appeals process in relation to interlocutory orders. Clearly there was a remedy available at first instance to have the orders discharged in the event there were changes in circumstances such as the wife obtaining employment.
It seems to me that the wife has secured a significant measure of success and the preponderance of relevant factors weigh in favour of an order for costs.
On balance, I am satisfied that the husband should pay a portion of the wife’s costs and that those costs should be calculated on a party/party and not solicitor and client basis. There is nothing in the proceedings which would bring this case into the category of case where solicitor/client or indemnity costs might be awarded.
Based on the submissions, I am satisfied that costs should be ordered in the amount of $800.
It is the EA 35 of 2014 appeal file where I have the Chief Justice’s delegation to deal with this as a judge alone appeal and a portion of the costs will be made in relation to that appeal. It is appropriate that the remaining $400 be ordered in relation to the Application in an Appeal.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 26 August 2014.
Associate:
Date: 09 September 2014
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