Pillai and Doshi (Costs)
[2014] FamCAFC 168
FAMILY COURT OF AUSTRALIA
| PILLAI & DOSHI (COSTS) | [2014] FamCAFC 168 |
FAMILY LAW – APPEAL – COSTS – Where the wife seeks an order that the husband pay her costs of two appeals – Where the husband opposes any such order – Where the husband seeks an order that the wife pay costs and disbursements which he asserts he has sustained in relation to the appeals – Where the husband was almost wholly unsuccessful in the appeals brought by him – Where the husband has been unreasonable in the manner in which he has prepared and presented his appeals – Where a costs order is made against the husband.
Child Support (Registration and Collection) Act 1988 (Cth) s 72A
| Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A) Family Law Rules (2004) r 22.22(2) |
| APPELLANT: | Mr Pillai |
| RESPONDENT: | Ms Doshi |
| FILE NUMBER: | DGC | 664 | of | 2007 |
| APPEAL NUMBERS: | SOA | 22 | of | 2011 |
| SOA | 30 | of | 2011 |
| DATE DELIVERED: | 10 September 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Finn and Johnston JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
LOWER COURT JUDGMENT DATES: | 3 February 2011 8 March 2011 |
| LOWER COURT MNCS: | [2011] FamCA 36 |
REPRESENTATION
| APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Perry Weston |
Orders
That the appellant pay the respondent’s costs of and incidental to Appeal No SOA 22 of 2011 and Appeal No SOA 30 of 2011 as agreed and in default of agreement as assessed.
That such costs are to be paid from the monies held in trust payable to the appellant pursuant to the orders made on 8 March 2011 (but subject to Orders (2) and (3) of the orders of 26 July 2011), after payment therefrom the sum of $3617.24 to the Child Support Registrar in accordance with the notice pursuant to s 72A of the Child Support (Registration and Collection) Act 1988 (Cth) dated 20 November 2012.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pillai & Doshi (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Numbers: SOA 22 of 2011
SOA 30 of 2011
File Number: DGC 664 of 2007
| Mr Pillai |
Appellant
And
| Ms Doshi |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Doshi (“the wife”) is seeking an order that Mr Pillai (“the husband”) pay her costs of two appeals, brought by him in which he was almost wholly unsuccessful. The husband opposes any such order. He seeks an order that the wife pay costs and disbursements which he asserts he has sustained in relation to the appeals as well as various costs unrelated to the appeal, including costs in proceedings in the County Court of Victoria.
Background
On 25 October 2012 this Court made orders dismissing an appeal (Appeal No SOA 22 of 2011) by the husband against parenting orders made on 3 February 2011, except in relation to one aspect to which we shall refer below.
On the same occasion we made orders dismissing the husband’s appeal (Appeal No SOA 30 of 2011) against property orders made on 8 March 2011, also except in relation to one minor aspect to which we shall refer below.
We also made directions for the filing of written submissions by the parties in relation to the costs of those two appeals. Such submissions were duly filed in relation to both appeals.
Discussion
The usual position in relation to costs in family law proceedings including appeals, as set out in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”), is that each party to the proceedings shall bear his or her own costs. However, it is submitted on behalf of the wife that there are circumstances in each of the appeal proceedings which would make it just for the Court to make a costs order in her favour as it is empowered to do pursuant to s 117(2) of the Act.
In considering what order, if any, should be made under s 117(2) of the Act, the Court is to have regard to the matters in s 117(2A) of the Act which are relevant. To assist understanding, those matters are as follows:
a)the financial circumstances of each of the parties to the proceedings;
b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)such other matters as the court considers relevant.
The first relevant matter is the financial circumstances of each of the parties.
The wife’s income consists of Centrelink benefits and child support paid by the husband from which she supports the two young children of the marriage who are in her sole care. The property order unsuccessfully appealed from requires cash payments to be made in her favour from funds in a controlled monies account representing the net proceeds of sale of the former matrimonial home. These payments will be very modest and, after payment of her outstanding legal costs, there will be little of this money available for the wife. Otherwise, the only property the wife has is some furniture, personal effects and a small amount of savings.
On the other hand, the husband is in full-time employment earning an annual income of approximately $66,000. As with the wife, there will be little cash available for him from his payment from the controlled monies account pursuant to the property order once he pays various liabilities which he says he has. But he will have the benefit of his superannuation with a value of approximately $54,000.
Neither the wife nor the husband is in receipt of legal aid.
The next relevant matter is the conduct of the parties to the proceedings.
The manner in which the husband has prepared and conducted the appeals has caused a considerable amount of legal cost to the wife. In our reasons for judgment in the parenting appeal, we said that the fact that the husband’s Amended Notice of Appeal contained 53 grounds of appeal and his written summary of argument consisted of some 19 pages made it an extraordinarily difficult and time consuming task for the Court to deal with the parenting appeal. Dealing with the property appeal was no less arduous or less time consuming because the husband’s Notice of Appeal comprised 66 grounds or purported grounds over some 14 pages. The summaries of argument in both the parenting and property appeals breached the prescribed 10 pages rule (Family Law Rules (2004), rule 22.22(2)). Most of the material in the summaries failed to address the grounds of appeal.
We accept that the husband’s approach to the appeals in this regard has made it extremely difficult and costly for the wife to prepare her argument in response to the matters raised.
The next relevant matter is whether either party has been wholly unsuccessful in the proceedings.
In the property appeal, the only success the husband had was to achieve a very modest variation of paragraph 5 of the trial judge’s orders. This order in original form was as follows:
5.THAT within fourteen (14) days the husband deliver or cause to be delivered to the wife’s solicitors, in good order, the wife’s engagement ring, necklace and bracelet(s).
We found that there was no basis for including the necklace and bracelet(s) in this order and we ordered an amendment of the order to remove the obligation on the husband to deliver these items of jewellery to the wife’s solicitors.
The husband’s appeal against the property orders was directed primarily to achieving orders which would require 95 per cent of the monies in the controlled monies account to be paid to him. He also sought a substantial reduction in his child support liability. He has achieved neither.
Out of the 66 grounds of appeal, the husband has succeeded on one matter. In our view, therefore, the husband has been almost wholly unsuccessful in the property appeal because the change he achieved concerning the items of jewellery is of little substance in the overall context of the husband’s complaint about the financial orders.
In the parenting appeal, the husband sought to have set aside the orders which placed sole parental responsibility with the wife and which required the children to reside with her. He was wholly unsuccessful in this. The husband also sought a variety of other parenting orders none of which has been made.
The only success the husband has achieved in the parenting appeal was to have Order 21 of the trial judge’s orders set aside. This order was as follows:
21.THAT the husband be restrained from filing in this Court or in the Federal Magistrates Court any further application in relation to children and parenting orders until he has:
(a)complied with the requirements of Order 4 hereof [which required the husband to complete the intake process at a specified contact service and which also required the husband to undertake psychiatric assessment];
(b)provided to the wife’s solicitors and the Court a true copy of a psychiatric assessment and report upon himself;
(c)has [sic] spent regular supervised time over four (4) months with the children pursuant to Order 5 hereof; or
(d)a Judge of the Family Court otherwise orders that he be entitled to file a further application.
We were satisfied that the trial judge made this order without power to do so and therefore we set it aside.
Out of the 18 parenting orders which the husband sought to have set aside, he has been successful in relation to one. But this did not go to the central issue, which was with whom it was in the best interests of the children to live and which of their parents should have sole parental responsibility for them. In relation to each of these matters the husband has been wholly unsuccessful.
There were apparently no offers of settlement made in relation to the appeals. However it is extremely relevant to note in the present context that the wife’s solicitors wrote to the husband in May 2011 after being served with the Notice of Appeal. The solicitors informed the husband that in their view the appeal had no prospect of success. They also indicated that if the appeal was dismissed the wife would seek an order that her costs be paid by the husband from the monies to which he was entitled in the controlled monies account. The solicitors sent further letters asking the husband to discontinue his appeals. The husband did not respond to the letters.
Conclusion
In our view, this is a matter where it is just in all the circumstances for the Court to depart from the usual position and make an order that the husband pay the wife’s costs of the appeals. In our view the husband has been unreasonable in the manner in which he has prepared and presented his appeals. He has been almost wholly unsuccessful. By bringing these appeals the husband has caused the wife to incur a liability for further legal costs which on all indications she would only be able to pay from the extremely modest property settlement she has achieved.
It was submitted on behalf of the wife that such costs should be paid from the money in the controlled monies account. It was also submitted on her behalf that the husband has never complied with any costs order made by this Court.
We accept this submission noting also that the trial judge had found that the husband had a long history of failing to pay in accordance with child support assessments and that his salary had been garnisheed to ensure that such payments were made.
Child Support Notice
Our attention was drawn to the fact that a notice under s 72A of the Child Support (Registration and Collection) Act 1988 (Cth) was issued on 20 November 2012 directed to the wife’s solicitors. Section 72A permits the Child Support Registrar to direct a third party, who holds money on behalf of a child support debtor, to pay that money to the Registrar without the need for a court order. In this case the notice required the solicitors to pay to the Child Support Registrar the sum of $3617.74 from the money being held in trust for the husband.
We take the view that this money is to be paid from the husband’s share of the portion of the money in the controlled monies account payable to him pursuant to the property orders, prior to payment out to the wife of her costs of the appeals.
Costs Certificate
The husband submitted that in the event that his appeal succeeded on a point of law he would ask the Court to grant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). But s 9 of that Act is only available where each party to the appeal bears his or her own costs. Obviously this is not the situation in these proceedings and we reject this application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Johnston JJ) delivered on 10 September 2014.
Associate:
Date: 10 September 2014
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