Nord & Van
[2018] FamCAFC 75
•13 April 2018
FAMILY COURT OF AUSTRALIA
| NORD & VAN | [2018] FamCAFC 75 |
| FAMILY LAW – APPEAL – where leave to amend grounds of appeal was not opposed and was granted – where the trial judge determined the existence of a de facto relationship and made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – where a party can appeal a s 90RD declaration as of right and therefore leave to appeal is not required – where the appellant contended that the evidence before the trial judge did not support the finding of the existence of a de facto relationship – where the trial judge made adverse findings in respect of the appellant’s credibility at trial – where the trial judge preferred the evidence of the respondent and her witness and placed greater weight upon it – where the trial judge’s ultimate finding of fact as to the existence of a de facto relationship could not be said to be wrong by reference to “incontrovertible facts or uncontested testimony” or is “glaringly improbable” or “contrary to compelling inferences” – where the appellant appealed an order that he pay the respondent’s costs of trial in the fixed sum of $30,000 – where the appellant alleged the trial judge failed to consider relevant s 117(2A) factors – where the trial judge clearly considered s 117(2A) – where the appellant contended he was not provided an opportunity to make submissions in respect of costs – where the trial judge provided ample opportunity for the appellant to make submissions as to costs – where there is no evidence that the trial judge exercised his discretion to make a costs order on wrong principles – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $7,000. |
| Family Law Act 1975 (Cth) ss 4AA, 90RD, 90RH, 90SM, 117 Family Law Rules 2004 (Cth) r 19.18(1)(a) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20 Collins and Collins (1985) FLC 91-603; [1985] FamCA 15 Dahl & Hamblin (2011) FLC 93-480; [2011] FamCAFC 202 Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Harris and Harris (1991) FLC 92-254 Kohan and Kohan (1993) FLC 92-340 Licul v Corney (1976) 180 CLR 213; [1972] HCA 6 McAlpin and McAlpin (1993) FLC 92-411; [1993] FamCA 71 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 4 Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129 |
| APPELLANT: | Mr Nord |
| RESPONDENT: | Ms Van | |||||
| FILE NUMBER: | PAC | 5381 | of | 2014 | ||
| APPEAL NUMBER: | EAA | 112 | of | 2017 |
| DATE DELIVERED: | 13 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Alstergren DCJ, Murphy & Kent JJ |
| HEARING DATE: | 13 April 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 October 2017 |
| LOWER COURT MNC: | [2017] FCCA 2727 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Givney |
SOLICITOR FOR THE APPELLANT: | Pham Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Beck |
| SOLICITOR FOR THE RESPONDENT: | QAS Lawyers |
Orders
The appellant have leave to amend the grounds of appeal by substituting the two grounds of appeal stated in his Summary of Argument filed on 20 March 2018.
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $7,000 within thirty (30) 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 Nord & Van 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 112 of 2017
File Number: PAC 5381 of 2014
| Mr Nord |
Appellant
And
| Ms Van |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
KENT J
The central issue joined between these parties at trial was whether their relationship was a “de facto relationship” within the meaning of s 4AA of the Family Law Act 1975 (Cth) (“the Act”).
The appellant Mr Nord contended that the parties were never in a de facto relationship, it being his contention that he was having an affair with the respondent whilst his marriage to Ms D (“Ms D”) subsisted throughout. The respondent Ms Van contended that the parties were in a committed relationship and she sought a declaration pursuant to s 90RD of the Act as to the existence of a de facto relationship.
On 10 October 2017, following a three day trial, Judge Harman delivered ex tempore reasons for judgment and orders, including Orders 1, 2, 4 and 6 as follows:
1.Pursuant to section 90RD of the Family Law Act 1975, declare that the parties, [Ms Van] and [Mr Nord], lived in a de facto relationship with each other commencing February 2009 and concluding March 2014.
2.[Mr Nord] shall pay [Ms Van]’s costs of and incidental to the proceedings to date, such costs fixed in the sum of $30,000 and to be paid by [Mr Nord] to [Ms Van] (or as she may direct in writing) by close of business 24 November 2017 failing which:
a.Interest shall then accrue upon that sum or such portion of it as remains outstanding from time to time at the rate prescribed by the Federal Circuit Court Rules 2001;
b.[Ms Van] shall be entitled to commence proceedings to recover that sum, interest accrued thereupon and costs of recovery in a Court of competent jurisdiction.
…
4.Each of the parties, [Ms Van] and [Mr Nord], shall forthwith and within 7 days do all things, sign all documents and give all consents, authorities and instructions as may be necessary to cause the details of [Child S]’s father, namely, [Mr Nord], to be recorded upon the birth registration and any subsequently issued birth certificate for [Child S].
…
6.The Respondent, [Mr Nord], shall, no later than close of business 10 November 2017, file and serve an Amended Response, Affidavit sufficient to comply with Federal Circuit Court Rules 2001 and Financial Statement.
By Notice of Appeal filed on 6 November 2017 Mr Nord seeks leave to appeal and, if leave be granted, to appeal from those orders. Ms Van opposes the application, and the appeal if leave be granted.
By his Summary of Argument filed on 20 March 2018 Mr Nord seeks leave to amend his grounds of appeal to confine them to the following two grounds, namely:
1.The Court was in error, when the Court made a Declaration under Section 90RD. such a finding was not supported by the evidence of the Applicant. Respondent to the Appeal.
2.The Court was in error when the Court made the order for costs, being order 2 of 10 October 2017.
(Errors and omissions as per original)
There being no objection by Ms Van to the amendment of the grounds sought, the application to amend the grounds ought be allowed.
Is leave to appeal required?
In Dahl & Hamblin (2011) FLC 93-480 the Full Court of this Court stated, without elaboration, in respect of an appeal against a declaration made pursuant to s 90RD of the Act that “[w]e do not consider that leave to appeal was necessary in this matter” (at [51]).
Section 90RD(1) is expressed to operate where an application is made for an order under ss 90SE, 90SG or 90SM, or a declaration under s 90SL of the Act and a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person.
Section 90RE provides that a s 90RD declaration has effect as a judgment of the Court. Subsection (2) provides that for the purposes of the Act (other than Part VII) a s 90RD declaration has effect according to its terms.
Whilst s 90RH provides for limited circumstances in which a s 90RD declaration may be varied or set aside, it does not seem to me that the existence of such a provision (analogous to s 79A with respect to final property settlement orders) renders the conclusion that a s 90RD declaration is interlocutory in nature.
In my judgment once a s 90RD declaration is made it has the effect of finally determining rights of parties as regards the existence of a de facto relationship for the purposes of Part VIIIAB of the Act such that the order or judgment can be regarded as final in the sense described in the authorities (Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246).
In my judgment leave to appeal is not required and the appeal proceeds as of right.
The trial judge’s determination of a “de facto relationship” – Ground 1
Given the vast divergence between the versions of each party, the trial judge concluded, unsurprisingly, that an assessment of the credibility of each party was necessary to determine the facts (reasons at [17]).
The trial judge accepted the evidence of Ms Van and her daughter and preferred their evidence to that of each of Mr Nord and his wife, Ms D ([35], [38] and [41]).
The trial judge’s reasons for judgment contain numerous adverse findings concerning the credibility of Mr Nord. For example, his Honour recorded findings including that:
·Mr Nord’s evidence was “troubling” by reason of inconsistencies ([45]);
·
Mr Nord was unresponsive to questions asked of him in
cross–examination ([50]); and
·Mr Nord was prone to giving changeable and internally inconsistent evidence ([51] and [52]).
In comparison with the findings made concerning Mr Nord the trial judge made the following finding as to Ms Van as a witness, namely, that she was “remarkably precise, clear, consistent and plausible throughout” ([108]).
The trial judge recorded (at [115]) the following comparison between the parties as witnesses and the following observations as to the credibility of Mr Nord generally:
However, the same allowances as apply to [Ms Van] cannot be made as regards [Mr Nord] and they impact directly upon his credibility. [Mr Nord]’s evidence, in contradistinction to that of [Ms Van] is, in places, implausible, internally inconsistent and, at certain points, simply contradictory. Inconsistency arose repeatedly and with different versions of events given in a very short turnaround. The answers that were given changed dramatically in the space of minutes, not only as between the first and second tranche of this three day trial but throughout the evidence given with the assistance of each interpreter.
The reasons for judgment of the trial judge contain numerous examples which his Honour identified of inconsistencies within Mr Nord’s evidence and other unsatisfactory aspects of that evidence:
·his evidence as to the extent of the parties’ sexual relationship and when such a relationship had ended ([55], [63] and [84]);
·whether the parties’ child born on 21 January 2010 was in fact his biological child ([61]);
·his evidence as to the purchase and use by Ms Van of the residential property referred to as the Ashcroft property ([71] and following); and
·the inconsistencies between the contents of Mr Nord’s statement to police concerning a provisional Apprehended Domestic Violence Order, as compared with subsequent correspondence Mr Nord provided to police ([79] – [87]).
The trial judge also made adverse findings in respect of Ms D’s evidence called in support of Mr Nord’s case, particularly in relation to the circumstances surrounding the purchase of the Ashcroft property ([64] – [67]) and the alteration in her evidence as to Mr Nord never having spent any night away from her during their marriage ([95] – [102]).
In contrast to the amended grounds of appeal which, by Ground 1, foreshadows argument being confined only on the premise that Ms Van’s evidence is to be accepted, Mr Nord’s Summary of Argument makes reference to, and relies upon, the evidence of Mr Nord at trial.
To the extent that this then amounts to a challenge to the adverse credit findings made by the trial judge concerning Mr Nord and his evidence, and that of his wife Ms D, the challenge is to be rejected. The authorities repeatedly emphasise the position of disadvantage of appellate judges as compared with a trial judge where findings of fact rely upon the assessment made of credibility of witnesses (Abalos v Australian Postal Commission (1990) 171 CLR 167 per McHugh J at 178; Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479; Dearman v Dearman (1908) 7 CLR 549 per Griffith CJ, Barton, Isaacs and Higgins JJ at 553; Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [23]). Mr Givney of counsel who appeared on the appeal did not draw the Summary of Argument and properly acknowledged during oral argument that a challenge to the credit findings could not be advanced on this appeal.
Nothing to which counsel for Mr Nord directed us on appeal demonstrates that the trial judge failed to use, or palpably misused, his advantage of having seen the witnesses, or that the trial judge has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable” in reaching the findings of fact made.
When the reasons of the trial judge are read as a whole it is tolerably clear that the trial judge, having made the assessments of credit referred to, ultimately concluded that a de facto relationship existed between the parties, for the period identified, based largely on the following factors:
·the length of the parties’ relationship being from February 2009 to March 2014 ([147] – [148]);
·Mr Nord’s lengthy stays with Ms Van particularly during periods in which his wife, Ms D, was travelling ([149] – [151]);
·Ms Van’s financial dependence on Mr Nord, including via Mr Nord’s purchase of an “investment property” in his sole name (the Ashcroft property) in which he allowed Ms Van to live with the parties’ child and Ms Van’s other children rent-free for more than three years ([69] – [72], [156] – [158], [160] and [162]);
·Mr Nord’s regular attendance at Ms Van’s home to spend time with the parties’ child and Ms Van’s other children ([159] and [163] – [164]);
·the parties’ ongoing sexual relationship ([40] – [42] and [153]); and
·the birth and care of the parties’ child ([170]).
In Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair”) the Full Court, in the course of discussing s 4AA of the Act, cited with approval a statement of Fitzgerald J in the Federal Court of Australia in Lynam v Director-General of Social Security (1983) 52 ALR 128 in the following passage:
51.In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).
52. Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.
53. Sub-section 4AA(4) provides:
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
54. Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
55. In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
56. Many of the submissions put by the appellant in the appeal sought to place significant, if not determinative weight, on particular circumstances. Absent the identification of an error on the part of the trial Judge it is difficult for such submissions to succeed. Merely because another judge may have weighed the circumstances differently does not, of itself, demonstrate error.
When the reasons of the trial judge are read as a whole, it can be seen that informed by the findings already referred to as to the credibility of Ms Van and her daughter on the one hand, and the lack of credibility of Mr Nord and Ms D on the other, the trial judge undertook an examination of relevant s 4AA(2) circumstances in determining, as a question of fact, the nature and period of the subject relationship as a “de facto relationship”.
In Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 the High Court (French CJ, Bell, Keane, Nettle and Gordon JJ) described the approach of a court of appeal to a finding of fact by a primary judge as follows at [43]:
…[a] court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.
(Footnotes omitted) (Emphasis added)
Nothing to which counsel for Mr Nord directs us in this appeal demonstrates that the trial judge’s ultimate finding of fact as to the existence of a de facto relationship is wrong by reference to “incontrovertible facts or uncontested testimony” or is “glaringly improbable” or “contrary to compelling inferences”. To the contrary, upon acceptance of Ms Van’s evidence and the corroborative evidence of her daughter, the weight of evidence supported that ultimate finding.
Properly analysed, Mr Nord seeks only on this appeal to re-agitate arguments advanced below upon evidence which was rejected, and contends to the effect that the trial judge ought to have given more weight, or determinative weight, to such of the relevant considerations as were contrary, or arguably contrary, to the existence of a “de facto relationship” as defined in the Act in determining that central factual question.
However, before this Court could legitimately reverse the trial judge’s conclusion on that central factual question, this Court would have to be well satisfied that the trial judge was plainly wrong, his decision being no proper exercise of his judicial discretion (Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519). Moreover, it is the “composite picture” and not isolation of, and undue weight or emphasis given to, individual factors, that is determinative.
In my judgment Mr Nord does not establish that the trial judge made any error of law or fact so as to establish that the trial judge was plainly wrong or that his decision can be characterised as being one made as no proper exercise of the trial judge’s discretion.
It follows that there is no merit in Ground 1.
Challenge to the costs order – Ground 2
After finding that a de facto relationship did exist, the trial judge found that it was appropriate in all of the circumstances to award costs in favour of Ms Van ([199]). His Honour ordered that Mr Nord pay Ms Van’s costs fixed in the sum of $30,000. This sum was reached following a breakdown of each court event ([210] – [211]) by reference to Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
Mr Nord argues that his Honour should have ordered each party to bear their own costs pursuant to s 117 of the Act or, in the alternative, his Honour should have reserved the issue of costs for determination at a final hearing of the substantive proceedings.
Mr Nord argues that the trial judge failed to consider (by reason of the lack of evidence before him) relevant s 117(2A) factors, in particular Mr Nord’s financial circumstances and the legal costs each party had incurred.
The trial judge was at pains to set out s 117(2A) and apply each subsection to the facts of the case ([172] – [214]).
In relation to the parties’ respective financial positions, the trial judge made reference to Ms Van’s Financial Statement filed in the matter and noted that, although Mr Nord had failed to file a Financial Statement, an order requiring Mr Nord to do so was absent jurisdiction until a declaration was made ([179] – [181]). The trial judge set out Mr Nord’s financial circumstances as provided during the trial (at [182]) and found that, although Mr Nord’s financial position was not known, his employment history and property would “not obviate against an Order for costs” (at [183]).
The trial judge stated at [186] that “[t]he costs incurred by the parties to date are not known”. As such, his Honour applied the scale provided in Schedule 1 of the Rules and found that Ms Van’s costs “would exceed $30,000”. Mr Nord contends that it was inappropriate for his Honour to calculate costs in this manner as it included each Court event (one of which in April 2016 was adjourned due to Ms Van’s ill health) for which Mr Nord states he ought not be responsible.
Furthermore, Mr Nord contends that his Honour was incorrect in applying the scale set out in Schedule 1 of the Rules in circumstances where he applied a scale which came into effect in the financial year at the time of the judgment (not the financial year in which many of those costs were incurred). However, the trial judge was clearly aware of this feature having made specific reference to this at [212(b)] of the reasons but nevertheless finding that such costs order was appropriate. It bears emphasis that the sum of $30,000 as ordered was discounted from the sum of $32,264 as calculated by his Honour.
Mr Nord further argues that he was not provided with procedural fairness as he was not given an opportunity to be heard in relation to the question of costs. That morphed, in the course of argument of this appeal by Mr Givney, to the contention that Mr Nord ought to have been provided at the hearing with a copy of s 117. That contention ought be rejected.
It can be seen that at the end of the second day of trial, the trial judge made the following observations, putting each party on notice as to potential orders for costs (Transcript, 12 July 2017, p 146 ln 6-24):
…Subject to hearing submissions from your counsel it is likely that whoever loses on this jurisdictional argument will be paying the other party’s costs. That is particularly so because this hearing turns upon findings of fact and very little else. At this point I should be clear that I have some difficulties with [Ms Van]’s evidence but nowhere near as many as I have with [Mr Nord]’s evidence.
…
If costs are ordered they would ordinarily be ordered in accordance with the Federal Circuit Court scale. On a rough calculation, we’re up to about $25,000 but that is rough and just looking at the scale and court appearances.
During closing submissions the trial judge requested of Mr Nord that he make submissions on the question of costs (Transcript, 10 October 2017, p 189 ln 26 to p 190 ln 32):
HIS HONOUR: One other issue I need you to address, [Mr Nord]. If I don’t accept your evidence and I accept [Ms Van]’s and, having accepted her evidence, find that there is a relationship sufficient to establish jurisdiction, why would I not make – why should I not make an order that you pay [Ms Van]’s costs in relation to this – these proceedings so far?
THE INTERPRETER [FOR MR NORD]: Can you repeat the - - -
HIS HONOUR: Yes. If I find that there is a relationship so that this court can hear the case, why should I not make an order that you pay [Ms Van]’s costs?
MR NORD: Yes, your Honour.
HIS HONOUR: Well, thank you, Mr - - -
THE INTERPRETER [FOR MR NORD]: Are you - - -
HIS HONOUR: Sorry.
THE INTERPRETER [FOR MR NORD]: Are you waiting for an - - -
HIS HONOUR: Yes, I was waiting for that argument.
THE INTERPRETER [FOR MR NORD]: Yes. My Honour – your Honour – my Honour. Sorry.
HIS HONOUR: That’s all right.
THE INTERPRETER [FOR MR NORD]: Your Honour, my relationship with [Ms Van] is only a passing relationship. So it was just something that comes and go. I - - -
HIS HONOUR: Yes, but what does this have to do with costs?
MR NORD: Your Honour, I will listen to you – listen to your decision.
HIS HONOUR: No, but I’m saying - - -
MR NORD: Yes.
HIS HONOUR: - - - at the end of the decision I have to decide whether I’m satisfied there is a relationship sufficient to found this court’s jurisdiction. If I do, I would want to know from you why I should not make an order that you pay [Ms Van]’s costs in the same way that if I find that there is not such a relationship I will want to hear from Mr Schonell about why [Ms Van] should not be paying your costs, which is what you’ve sought in your response.
THE INTERPRETER [FOR MR NORD]: Your Honour, I respect your decision whatever and however it will be made. I can again and again I can affirm that there is no de facto relationship between me and [Ms Van], and if the decision was for [Ms Van] – that I will appeal to a higher court.
HIS HONOUR: That’s your right. I don’t make decisions based on cringing in fear that someone might suggest I’ve made an error. I wanted to hear about costs. I’ve given you that opportunity, [Mr Nord]. If you don’t wish to address it, so be it.
MR NORD: Yes, your Honour. Thank you, your Honour.
It is clear that Mr Nord was afforded procedural fairness in that he was given the opportunity to address the Court on the question of costs but he elected, instead, to emphasise that he would appeal any decision to the effect that a de facto relationship existed.
To this may be added the observation that Mr Nord himself sought an order for costs of the proceedings in each of his Response and Case Outline documents filed in the proceedings below. Plainly, the question of costs of the proceedings was an issue joined between the parties which fell for determination by his Honour.
There is no substance to the complaint concerning procedural fairness.
The trial judge made the following observations from [190] – [193] of his reasons:
190.[Mr Nord] has been wholly unsuccessful. Adverse credit findings have been made against him. Those credit findings, this being very much a finding of fact based decision, have been fatal to his cause.
191.I am conscious of that which fell from the Full Court regarding this factor in Davida & Davida (Costs) [2011] FamCAFC 61 and I incorporate the appropriate passage therefrom:
The other justifying circumstance is the husband’s relative success. True it is that the relevant paragraph in section 117(2A) refers to a party being “wholly unsuccessful”, but I think it is fair to say that the practice has been to look at what one might term the relative merits of success or lack of success between the parties, even if necessary doing that under the last matter mentioned in section 117(2A), being any “other” matter.
192.In Davida & Davida, the Full Court made clear that one might have regard not only to the lack of success of one litigant but the relative success of the other.
193.In this case, [Ms Van] has been wholly successful in that her evidence has been accepted and preferred and the declaration that she has sought will be made. This factor strongly supports an Order for costs.
And at [199]:
In those circumstances, I am satisfied that costs should be awarded. They are justified and it is just and equitable that [Ms Van] should have her costs. It would be unjust and inequitable if she were refused costs.
Mr Nord argues that even though he was wholly unsuccessful in relation to the s 90RD declaration proceedings, he may be successful in the subsequent s 90SM proceedings such that either no alteration should be made to the parties’ property interests, or that he only be required to pay Ms Van a small sum. On that basis he contends that the trial judge erred in determining the issue of costs following the hearing on 10 October 2017 as opposed to determining such issue at a final hearing.
Whether or not Mr Nord is ultimately successful in resisting a s 90SM order in the proceedings is irrelevant in determining whether the trial judge erred in the exercise of his discretion to order costs with respect to the contested issue concerning the existence of a de facto relationship. Mr Nord was, as the trial judge observed, wholly unsuccessful with respect to that issue which occupied the three days of this trial. He elected to defend the application for a declaration and was wholly unsuccessful in so doing. It was well open to the trial judge, within the exercise of his discretion, to order costs in these circumstances.
As has been repeatedly emphasised in the authorities the discretion to order costs is, within the ambit of discretionary judgments, quintessentially a discretionary judgment and the Full Court will not readily review the exercise of such a discretion unless it is shown that the result is plainly unjust or that the discretion was exercised on wrong grounds (Collins and Collins (1985) FLC 91-603; Robinson and Higginbotham (1991) FLC 92-209; Harris and Harris (1991) FLC 92-254; McAlpin and McAlpin (1993) FLC 92-411).
Mr Nord fails to demonstrate that the costs order reflects any error on the part of the trial judge in the exercise of his discretion as to costs.
There is no merit in this ground.
Conclusion
There being no merit in either of the two amended grounds of appeal, in my judgment the appeal ought to be dismissed.
Costs of the appeal
In the event that the appeal is to be dismissed, Ms Van seeks an order for her costs of the appeal. Her counsel initially contended that such costs should be ordered on an indemnity basis. It is recognised that an order for costs on an indemnity basis is a very great departure from the usual rule as to costs and that exceptional circumstances must be demonstrated to warrant such an order (see Kohan and Kohan (1993) FLC 92-340; Prantage & Prantage (2013) FLC 93-544).
In the end result, the only exceptional circumstance counsel for Ms Van contended for is that the appeal was so lacking in merit or so “hopeless” that indemnity costs were warranted. I am not satisfied that on the authorities that is a sufficient basis for an order for indemnity costs.
On a party and party basis, counsel for Ms Van contended that $7,000 would be an appropriate sum and Mr Givney for the appellant did not seek to be heard on that sum being fixed if an order for costs was made in favour of Ms Van.
In my judgment Mr Nord has been wholly unsuccessful in the appeal proceedings within the meaning of s 117(2A)(e) of the Act. In pursuing an appeal which was without merit Mr Nord has put Ms Van to the additional expense of further litigation and moreover has delayed finalisation of her substantive s 90SM claim in the substantive proceedings.
Nothing, by way of comparison between the parties’ respective financial circumstances, or any other relevant s 117(2A) consideration, militates against the order sought by Ms Van in circumstances where this appeal has been wholly unsuccessful.
I am therefore of the opinion that there are circumstances, as referred to, that justify a costs order within the meaning of s 117(2) of the Act.
Rule 19.18(1)(a) of the Family Law Rules 2004 (Cth) provides for costs being ordered in a specific amount and it is obviously desirable for a specific amount to be ordered where possible so as to avoid for the parties the further delay and cost of an assessment of costs.
As it is contended on behalf of Ms Van that $7,000 is the appropriate party and party amount of costs of the appeal, and no contest is raised by Mr Givney for the appellant of that being the amount fixed, in my judgment that amount is reasonable and ought be ordered.
Orders
For these reasons I would order:
(1)The appellant have leave to amend the grounds of appeal by substituting the two grounds of appeal stated in his Summary of Argument filed on 20 March 2018.
(2)The appeal be dismissed.
(3)The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $7,000 within thirty (30) days.
MURPHY J
I have already agreed that leave to amend the Notice of Appeal should be given.
The Court has not had the benefit of argument with respect to the question of leave to appeal. With that caveat, I respectfully agree with Justice Kent that the appellant appeals as of right for the reasons given by his Honour.
I also agree with Justice Kent that the appeal should be dismissed for the reasons given by his Honour as I do similarly in respect of his Honour’s proposed order for costs.
ALSTERGREN DCJ
I also agree with Justice Kent. The orders of the Court will be:
(1)The appellant have leave to amend the grounds of appeal by substituting the two grounds of appeal stated in his Summary of Argument filed on 20 March 2018.
(2)The appeal be dismissed.
(3)The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $7,000 within thirty (30) days.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Murphy & Kent JJ) delivered on 13 April 2018.
Associate:
Date: 17 April 2018
13
3