O’HURLEY & O’HURLEY (COSTS) - [2012] FamCAFC 61

FAMILY COURT OF AUSTRALIA

O’HURLEY & O’HURLEY (COSTS)

[2012] FamCAFC 61

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the husband’s appeal was undoubtedly “wholly unsuccessful”, the husband’s challenges to the learned Federal Magistrate’s decision were neither frivolous nor necessarily doomed to failure ─ Where having regard to the husband’s financial circumstances, any order for costs which might be made would be likely, if met, to operate for years to come ─ Where in all the circumstances, the Court was not of the opinion that an order for costs was justified ─ No order for costs made

Family Law Act 1975 (Cth) s 79A

APPELLANT:

Mr O’Hurley

RESPONDENT:

Ms O’Hurley

FILE NUMBER:

NCM

926

2006

APPEAL NUMBER:

111

2007

DATE DELIVERED:

8 May 2012

PLACE DELIVERED:

Dubbo

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

24 August 2007

1 November 2007

LOWER COURT MNC:

[2007] FMCAfam 653

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Mr Byrnes

SOLICITOR FOR THE APPELLANT:

Byrnes & Cox Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Tregilgas

SOLICITOR FOR THE RESPONDENT:

Flintoff McNeilly Lawyers

Orders

That there be no order for costs of the appeal.

IT IS NOTED that publication of this judgment under the pseudonym O’Hurley & O’Hurley (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 111 of 2007

File Number: NCM 926 of 2006

Mr O’Hurley

Appellant

And

Ms O’Hurley

Respondent

REASONS FOR JUDGMENT

COSTS

On 11 April 2008, for reasons which the Court then published, the husband’s appeal against orders made in the Federal Magistrates Court dismissing the husband’s application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) in August and November 2007 was dismissed. Costs of the appeal were then reserved.
On 23 May 2008, written submissions were filed on behalf of the husband in opposition to the wife’s application.
For reasons which are not clear, but for which the Court must apologise, the written submissions did not see the light of day until after 16 March 2010. Again, for reasons which are not clear, but also oblige the Court to apologise to the parties, it was not until 19 April 2012 that the status of the wife’s unresolved costs application was raised. Whilst there does not appear to have been any enquiry by either party in relation to the outstanding costs application in the period of almost four years since the submissions were filed, the Court remains unreservedly apologetic to the parties for its inexcusable delay in deciding this issue.
In support of her application for costs, the wife submitted, accurately, as was acknowledged by the husband, that the appeal had been wholly unsuccessful. It was essentially on that basis, that the wife asserted that a costs order was justified.
In addition, it was submitted, again accurately, that the husband had not challenged “the factual substratum” of the learned Federal Magistrate’s decision and that this Court concluded that, whilst not erring in exercising his discretion in the way he did, his Honour could have reached other conclusions in determining the proceedings.
It was fairly conceded on behalf of the wife that the husband’s income of $445 per week comprised a sole parent pension of $350 per week and child support paid by the wife of $95 per week and that the husband had no assets of substance. The wife revealed that she had an income of $700 per week from “secure” employment with the New South Wales Department of Corrective Services, net assets of $72,540 and a superannuation interest worth $2,500.
The wife asserted that she was paying Child Support of $156.50 per week. Whether that is correct, or the husband’s assertion that the wife was paying $95 per week is correct, is not a matter about which the Court can reach any conclusions. On any view of it, the wife pays not insignificant Child Support relative to her modest income.
It was fairly conceded on behalf of the wife that she was “in a stronger position than the husband as to both income and presumably property”. Counsel for the husband, sensibly, relied on the stronger financial position of the wife than the husband in support of his resistance to the wife’s costs application. Counsel for the husband also, again sensibly, relied upon the fact that he had the care of the child of the former marriage of the parties and no capacity to meet any costs order “no matter how modest same may be”.
It was accordingly submitted that any costs order made by the Court would adversely affect the parties’ child by impacting upon the husband’s ability to properly provide for her. To the extent that it was submitted on behalf of the husband that the wife having received “the whole of the benefit of the matrimonial assets” and that the whole of such assets “were acquired as a consequence of him receiving an inheritance” those are not matters to which the Court would have regard. Those were undoubtedly matters relevant to the orders for settlement of property which were initially made between the parties, and potentially to the determination of the s 79A application which the learned Federal Magistrate dismissed. To the extent that those matters had relevance, their relevance ceased with the determination of the substantive appeal to this Court.
The husband’s appeal was undoubtedly “wholly unsuccessful”. In the context of an appeal, the significance of being “wholly unsuccessful” needs to be carefully considered. Appeals are either successful or “wholly unsuccessful”. Unlike proceedings at first instance, in an appeal there is no scope for degrees of failure or success. The outcomes are absolute in terms of success or its absence.
As the Court’s Reasons for Judgment in the substantive appeal confirm, although unsuccessful, the husband’s challenges to the learned Federal Magistrate’s decision, were neither frivolous nor necessarily doomed to failure.
The exercise of discretion with respect to costs in this appeal ultimately turns decisively upon the financial circumstances of the parties. But for the husband having the care of a child of the former marriage of the parties, and, it does not seem to be disputed, no means, either by way of income or property, from which to satisfy any order for costs which might be made against him, it would be difficult to decline to make an order for costs.
The utility of making an order for costs which will not be complied with is problematic. That is not to suggest that the impact on the wife of being denied a costs order would not be significant given her modest circumstances, both in terms of income and property.
The order which the Court would be likely to make if satisfied that the circumstances justified an order for costs would necessarily in the circumstances of this case be an order for instalment payments. No other order would seem likely to result in the wife receiving anything.
Having regard to the husband’s financial circumstances, any order which might be made would be likely, if met, to operate for years to come. In all likelihood, the last instalment payment would be likely to be received almost a decade after the orders were made in the Federal Magistrates Court. If the order was not complied with, the cost to the wife of seeking to enforce it would be disproportionate to the amount which she sought to recover.
In all the circumstances, the Court is not of the opinion that an order for costs is justified. The order will thus be that there be no order for costs of the appeal.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 8 May 2012.

Associate:

Date: 8.05.2012