Mirell and Bellert
[2019] FamCAFC 193
•31 October 2019
FAMILY COURT OF AUSTRALIA
| MIRELL & BELLERT | [2019] FamCAFC 193 |
| FAMILY LAW – AMENDED APPLICATION IN AN APPEAL – COSTS – Where the father made two offers to settle the appeal – Where the first offer proposed that if the appeal was withdrawn by the mother the father would not seek costs – Where the second offer proposed that the appeal be discontinued and the mother pay the father’s costs in the sum of $4,000.00 – Where the mother discontinued the appeal – Where the mother failed to respond in a timely matter to both reasonable offers – Where the father filed an Amended Application in an Appeal seeking costs – Order that the appellant pay the respondent’s costs in the sum of $11,479.71 within 60 days. |
| Family Law Act 1975 (Cth) s 117(2A) |
| APPLICANT: | Mr Mirell |
| RESPONDENT: | Ms Bellert |
| FILE NUMBER: | TVC | 403 | of | 2019 |
| APPEAL NUMBER: | NOA | 44 | of | 2019 |
| DATE DELIVERED: | 31 October 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 4 September 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 15 May 2019 |
| LOWER COURT MNC: | [2019] FCCA 1395 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Brasch QC |
| SOLICITOR FOR THE APPLICANT: | Ruhl Family Law Centre |
| COUNSEL FOR THE RESPONDENT: | Mr Page QC |
| SOLICITOR FOR THE RESPONDENT: | Michael Dwyer Solicitor |
Orders
That the appellant pay the respondent’s costs in the sum of $11,479.71 within 60 days.
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 Mirell & Bellert 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 CAIRNS |
Appeal Number: NOA 44 of 2019
File Number: TVC 403 of 2019
| Mr Mirell |
Applicant
And
| Ms Bellert |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 15 May 2019, a Federal Circuit Court judge made a Recovery Order requiring Ms Bellert (“the mother”) to return the parties’ then two year old child to Mr Mirell (“the father”) within 24 hours. His Honour also made some interim parenting orders, which varied depending on whether or not the mother returned with the child from South east Queensland to North Queensland.
On 20 May 2019, the mother filed a Notice of Appeal in relation to those orders. Then, on 22 May 2019, she sought a stay of them, which application was dismissed by the primary judge on 3 June 2019. Therefore, the orders remained operative, and the child was transferred into the father’s care, with the mother remaining in South east Queensland. On 28 August 2019 the mother discontinued her appeal.
On the following day, the father filed an Application in an Appeal seeking that the mother pay his costs, which were subsequently quantified in the sum of $11,479.71. On 4 September 2019 I heard the Amended Application in an Appeal, and reserved my decision. This is that decision and the reasons for it.
RELEVANT FACTS
On 16 August 2019, the mother served on the solicitors for the father her summary of argument in the appeal.[1] Paragraph 7 of that submission said:
[The mother] sought a stay of the order within the rules relating to appeals which was refused rendering the appeal nugatory.
[1] Although served on the father’s solicitors, it was rejected for filing, and not thereafter sought to be re-filed.
Because of this submission, later that day the solicitors for the father invited the mother to withdraw her appeal by close of business on Monday 19 August 2019, in which event he would not seek costs against her. The appeal was not withdrawn by that time. Rather, on 21 August 2019 the solicitors for the mother sought an extension of the time to accept the father’s offer until Friday 23 August 2019. By letter of 22 August 2019, the father’s solicitors refused any extension, but advised the mother that, if she now withdrew her appeal, they would only seek costs for the work “undertaken thus far” in relation to the appeal.
On 23 August 2019, the mother’s solicitors advised that they held instructions to withdraw the appeal “and will commence the process of that documentation on the basis that each party pay their own costs.”
On 27 August 2019, the father’s solicitors advised that they were not content to waive their costs on the appeal if it were withdrawn, but rather offered to settle their clients’ costs for the sum of $4,000.00, noting that the value of the work undertaken up until that time was $6,240.99. On the following day the mother discontinued her appeal, seemingly without further responding to the father’s solicitors’ correspondence. The father then filed his application seeking costs on 29 August 2019.
CONSIDERATION
The general rule is that parties to proceedings under the Family Law Act 1975 (Cth) (“the Act”) shall bear their own costs, unless the court is of an opinion that there are circumstances that justify an order for costs. Section 117(2A) of the Act sets out the matters that the court shall have regard to in considering whether or not to make an order for costs.
By reference to those considerations, and the arguments of the parties, I made the following observations and findings.
Neither party put on any material directly relating to their financial circumstances. However Queens Counsel for the father said that the material before the primary judge identified that the mother claimed to have moved to South east Queensland because she had obtained employment there, and that one could therefore infer that she was in receipt of income. He further said that, although the evidence disclosed that the father has employment, before the primary judge he had said that if the child came into his primary care, he may need to move from full-time employment to part-time employment. However there is no evidence as to whether or not that in fact has now occurred.
Neither party is apparently in receipt of legal aid.
Counsel for the father identified two species of conduct of the mother which was relevant to the question of costs. The first was her unilateral relocation with the child, without warning, from North Queensland to South east Queensland. The second was her filing and prosecuting the appeal, only to abandon it on 28 August 2019.
Perhaps the most significant factor under s 117(2A) of the Act relied upon by the father was the mother’s lack of success in the appeal. Particularly he said her lack of success was by her own hand, when she discontinued the appeal some three months after it was filed.
The father also relied upon the two offers which his solicitors prepared to settle the appeal. The first was by letter of 16 August 2019, on the basis that, if the appeal was withdrawn, he would seek no order as to costs. The second was by way of letter on 27 August 2019, to settle the appeal on the basis that it be withdrawn, and the mother pay the father’s costs in the sum of $4,000.00. Inferentially he says that it was unreasonable for the mother to delay the withdrawal of the appeal and not accept his offers in a timely way.
As to that, Queens Counsel for the mother in submissions said that his instructing solicitor had difficulty explaining the orders to the mother, and particularly the significance of her failure to secure a stay of the primary judge’s Recovery Order. However not only is there no affidavit material verifying that assertion, but further, it is difficult to see why such a contended difficulty militates against the terms of the offer which the father made.
There are no other matters which I can identify that are relevant to the exercise of the discretion as to costs.
Weighing all of those matters in the balance tells strongly in favour of an order for costs in this case. In particular, the mother failed to respond in a timely way to the two very reasonable offers that were made to her by the father, and notwithstanding the stay being refused, nonetheless pressed on with the appeal, which by her own concession, was then nugatory.
Counsel for the mother suggested that the costs should conclude at the time of the discontinuance, but I reject that submission, as there was no offer by the mother to then pay the costs, which therefore necessitated the bringing of the application and its prosecution to hearing.
As to the quantum of the costs, no submissions were made that they were unreasonable, and I am satisfied that the sum claimed, $11,479.71, is indeed reasonable and appropriate.
In the event that an order for costs was made, the mother sought 60 days to pay, which was not opposed by the father. There will therefore be an order that the mother pay those costs within 60 days of these orders.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 31 October 2019.
Associate:
Date: 31 October 2019
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