Raymond & Raymond (No 2)
[2024] FedCFamC1A 92
•29 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Raymond & Raymond (No 2) [2024] FedCFamC1A 92
Appeal from: Raymond & Raymond [2023] FedCFamC2F 1396 Appeal number: NAA 316 of 2023 File number: NCC 838 of 2023 Judgment of: AUSTIN J Date of judgment: 29 May 2024 Catchwords: FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Where the appeal succeeded on one ground of many pleaded grounds – Where the appellant seeks the grant of costs certificates to the parties – Where the respondent seeks party/party costs of the appeal – Where the respondent made an offer in writing to concede the appeal on the single ground upon which it succeeded – Where many grounds were pursued without merit – Where the appellant is in a stronger financial position than the respondent – Where the appellant shall pay a proportion of the respondent’s costs of and incidental to the appeal in a fixed sum – Where the appellant’s application for costs certificates fails. Legislation: Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) r 12.17
Cases cited: Conrad & Conrad (2020) 61 Fam LR 301; [2020] FamCAFC 225
Pennisi & Pennisi (1997) FLC 92-774
Number of paragraphs: 19 Date of last submission/s: 20 May 2024 Date of hearing: Determined in chambers on the papers Solicitor for the Appellant: CopperTree Family Law Counsel for the Respondent: Mr Bithrey Solicitor for the Respondent: Seton Family Lawyers ORDERS
NAA 316 of 2023
NCC 838 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RAYMOND
Appellant
AND: MS RAYMOND
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
29 MAY 2024
THE COURT ORDERS THAT:
1.The appellant shall pay a proportion of the respondent’s costs of and incidental to the appeal, fixed in the sum of $10,000.
2.Otherwise:
(a)the Application in an Appeal filed by the respondent on 26 April 2024 is dismissed; and
(b)the Application in an Appeal filed by the appellant on 29 April 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Raymond & Raymond (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
On 28 March 2024, this appeal was determined between the parties.
The appeal succeeded, but only on a single ground of many. The parties’ costs of the appeal were reserved for 28 days, as they requested at the hearing.
The respondent filed an Application in an Appeal on 26 April 2024, accompanied by an affidavit, seeking her party/party costs of the appeal, together with her party/party costs in respect of the contested costs application, with all such costs payable within 28 days.
The appellant filed an Application in an Appeal on 29 April 2024, accompanied by an affidavit, seeking leave to bring his application out of time and, subject to the grant of such leave, the grant of costs certificates to both parties for the appeal.
Both parties filed written submissions, as directed by the appeal registrar, to enable disposition of the costs dispute on the papers in chambers.
Legal principles
Ordinarily, parties to proceedings under the Family Law Act 1975 (Cth) (“the Act”) bear their own costs of the proceedings (s 117(1)), though the Court is able to make costs orders if considered appropriate (s 117(2)), in which event the Court must have regard to the discretionary criteria prescribed by the Act (s 117(2A)).
Respondent’s application
In prosecuting the costs application, the respondent relied upon the dismissal of the appeal on all but one ground but, because the appeal succeeded, it was not “wholly unsuccessful” (s 117(2A)(e)). Nonetheless, the appellant’s conduct of the appeal is a relevant consideration (s 117(2A)(c)) because 14 of the 15 grounds were pursued when without merit. The appeal was brought from an interim spousal maintenance order and the appellant’s various challenges to the respondent’s need for the payment of spousal maintenance all failed.
The respondent could ill afford the expense of defending the appealed orders, diverting money needed to support herself to the payment of legal costs incurred in the appeal. Her entitlement to lump sum spousal maintenance was affirmed. So too was her entitlement to periodic spousal maintenance affirmed, though subject to the grant of a re-hearing concerning the quantum of it. Self-evidently, having been ordered to pay spousal maintenance to the respondent, the appellant was in a stronger financial position than her (s 117(2A)(a)). Neither party was the recipient of a grant of legal aid (s 117(2A)(b)).
In respect of the single ground upon which the appeal succeeded, which reduced the amount of maintenance payable to the respondent but did not eradicate her entitlement to maintenance altogether, the respondent offered to concede the appeal. The offer, made in writing on 27 February 2024, proposed reduction of the periodic spousal maintenance from $685 to $545 per week, with the appealed orders otherwise being affirmed. On appeal, Order 3(b) was varied in those exact terms from $685 to $545 per week, but only until the dispute over interim periodic spousal maintenance is re-heard.
The offer was therefore as good as the result achieved by the appellant on the appeal, save that the appellant was granted the remedial order of a re-hearing of the dispute about periodic spousal maintenance when the respondent’s offer denied him that remedy. However, the remedy does not really put the appellant in any better position than he would have been in had he accepted the offer because, while he would not then have secured an automatic right of re‑hearing, he always retains the right to re-contest his liability for interim spousal maintenance upon showing changed financial circumstances so as to engage s 83(1)(c) of the Act. The reason the appellant refused to allow any re-exercise of discretion in the appeal is because he wanted to adduce more evidence about his financial circumstances in an effort to eradicate, or at least reduce by an even greater margin, his liability for periodic spousal maintenance.
The Act does not specify that offers must be better than the result achieved before they become relevant as a consideration (s 117(2A)(f)). In Pennisi & Pennisi (1997) FLC 92-774, the Full Court said (at 84,547):
… The plain words of the paragraph do not limit a Court’s attention to offers which are greater than the amount awarded. Nor does the paragraph state what consequences flow from whether the offer is greater or lesser than the amount awarded, or how much that is the case. Words of limitation should not be imported into the provision and nor should it be read as though offers in proceedings under the Act carry the same consequences as payments into Court in common law matters.
We do, however, consider that the closer the offer is to the award when the offer is under the amount awarded by the Court, the more weight that should be given to this factor in considering the question of costs. This principle must not, however, be rigidly applied. Offers must be seen in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances while the offer is live. In the family law jurisdiction, it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer. There are also cases where the contents of the offer are in themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account when considering whether it was reasonable or not to accept an offer, no matter how close to the ultimate result the offer may be. …
The Full Court has since embraced those propositions (Conrad & Conrad (2020) 61 Fam LR 301 at [25]–[30]).
In this instance, the respondent offered to concede the appeal on the single ground upon which it eventually succeeded. The appellant did not avail of the offer, nor did he counter-offer its acceptance as only a temporary measure whilst awaiting for re-hearing. Those considerations permissibly invoke the provisions of the Act (ss 117(2A)(c), 117(2A)(f) and 117(2A)(g)).
In an exercise of discretion, the respondent is entitled to some, but not all, of her party/party costs of and incidental to the appeal.
The respondent assesses her party/party costs at $15,394.01, which is not an extravagant sum given the appellant assessed his party/party costs of the appeal at $17,893 in the costs schedule he filed on 18 March 2024 in respect of the appeal.
In a further exercise of discretion, the respondent is allowed $10,000 in respect of her costs. The respondent sought a time limit for payment by the appellant, but there is no need. The costs order becomes immediately enforceable but, if she wants to wait 28 days before enforcing it, that is her prerogative.
There is no reason to depart from the orthodoxy established by s 117(1) of the Act in respect of the parties’ liability for costs incurred in respect of this costs dispute. They will bear their own costs in that regard.
Appellant’s application
The award of costs in the respondent’s favour means the appellant’s application for costs certificates to each of the parties must fail, even if the application is entertained out of time. The appellant cannot be awarded a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) when a costs order is made in the respondent’s favour (s 9(1)(b)). Nor should the respondent have any costs certificate in addition to the favourable costs order.
Disposition
The appellant shall pay a proportion of the respondent’s costs of and incidental to the appeal in the sum of $10,000, such sum being fixed pursuant to the power reposing in r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth). Otherwise, the costs applications are dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 29 May 2024
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