S and S

[2006] FamCA 862

[2006] FamCA 862

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT BRISBANE  Appeal No. NA67 of 2004

File No. BRM5558 of 2001

IN THE MATTER OF:  S

Appellant Husband

AND:  S

Respondent Wife

CORAM:  FINN, COLEMAN, WARNICK JJ

DATE OF HEARING:  By way of written submissions

DATE OF JUDGMENT:  6 SEPTEMBER 2006

JUDGMENT OF THE FULL COURT

Rosen Lawyers, on behalf of the appellant husband

Neumann & Turnour Lawyers, on behalf of the respondent wife

Name of Appeal	S AND S (Costs)
Appeal Number	NA67 OF 2004
Date of Hearing	By way of written submissions
Date of Judgment	6 SEPTEMBER 2006
Coram	FINN, COLEMAN & WARNICK, JJ

Catchwords:      COSTS – Respondent wife’s application for costs – The wife relied on the substantive failure of the appeal, the late abandonment of various grounds of appeal by the husband and the husband’s superior financial position – The husband argued that, despite the appeal only succeeding on technical grounds, an appeal to remedy those problems was still necessary – If the only order sought by the husband on appeal was on technical ground, it was probable that the order would have been obtained by consent – The failure of the appeal was a factor of particular weight, particularly in the context of the abandonment of the appeal on a number of grounds – Husband ordered to pay the wife’s costs

Appeal against costs order of Rimmer FM dismissed. Husband to pay wife’s costs of and incidental to the appeal.

1. On 15 December 2005, we made orders disposing of an appeal by the husband against orders made by Rimmer FM in respect of an application for property settlement.  Also before us was an appeal against a costs order (in respect of the costs of trial) made 17 February 2005.  When we made orders with respect to the substantive appeal we gave directions for written submissions in respect of the appeal against the costs order and in relation to the costs of the appeal.

The appeal against the costs order

1. We have received two sets of submissions on behalf of the husband.  Both are entitled “Summary of Argument of Appellant Husband in Respect of Costs of Appeal”.

2. In the first set of submissions, the only order sought by the husband was:

   “1.    That each party bear their own costs of and incidental to the appeal.”

3. There were no submissions expressly directed to the appeal against the costs order.

4. In the second set of submissions the order sought was:

   “9.    That each party bear their own costs of and incidental to the hearing before the Federal Magistrate and each party bear their own costs of and incidental to the appeal.”

5. However, again there were no submissions expressly directed to the appeal against the costs order.

6. The learned Magistrate gave reasons (of about six pages) for the costs order. Rimmer FM noted that the wife’s claim for costs was in the sum of $10,048.50. The Federal Magistrate considered the terms of s 117 of the Family Law Act 1975, as amended, the financial circumstances of each party and the conduct of each in relation to the substantive proceedings. She concluded:’

   “21.  Overall I am satisfied having regard to the differing financial circumstances of these parties and in particular that I have found that the husband’s conduct in relation to disclosure in general and in relation to his preparation for the trial has increased the costs that the wife has needed to expend and that he reduced the capacity of the wife to be able to resolve the matter without the hearing. I have taken into account however that there were matters which the wife herself contended for at the hearing in which she was not successful.

   This is a matter where the appropriate exercise of my discretion is to order that the husband pay a sum equivalent to one-third of the wife’s costs and disbursements claimed pursuant to Schedule 1 of the Federal Magistrates Court Rules and fixed in the sum of $3500.00. He should pay those costs within 2 calendar months of the date of this order.”

7. In the absence of submissions asserting error in the Federal Magistrate’s reasons for the costs order, we consider that the appeal against that order should be dismissed.

The costs of the appeal against the property settlement orders

1. Though the appeal was allowed, it succeeded only in respect of technical defects in the form of orders relating to the “splitting” of a superannuation fund of the husband.

Submissions for the wife

1. The wife, who was respondent to the appeal, seeks an order that the husband pay her costs of and incidental to it.  She relies upon what she asserts was the late abandonment by the husband of various grounds (as recorded in the reasons given 15 December 2005), the superior financial position of the husband and the failure of the appeal on all except technical grounds.

Submissions for the husband

1. The order sought by the husband was that each party bear their own costs of and incidental to the appeal.

2. He argued that the general rule in s 117(1) of the Family Law Act 1975 negated any principle that costs followed the event. He submitted that there were no grounds for departure from the general rule and the circumstances did not justify the making of an order. He conceded that he had a greater earning capacity than the wife but submitted that he had significant child support responsibilities and liabilities. He also acknowledged that he had received a grant of assistance under the Commonwealth Public and Test Cases Scheme, subject to the husband paying the first $10,000.00. However, no assistance had been paid at the date of the submissions.

3. He argued that the abandonment of grounds “…did not lengthen the proceedings in any way adverse to the wife” which is an oddly put proposition later more conventionally expressed “…had these grounds been pressed, the proceedings would have been lengthened.”  This seems an obvious but misdirected point.

4. He further argued that, notwithstanding the concession by the wife as to the technical defects, an appeal to remedy those problems would still have been necessary.  Of course, if that was the only point, the probabilities are that orders would have been made by consent.

5. Next, it was submitted that the appeal raised important questions about the application of the amendments to the Family Law Act 1975 relating to superannuation and, at the time the appeal was heard, decisions which might have been expected to make definitive statements about the effect of the amendments, were pending.

6. Finally it was pointed out that the wife was employed by her solicitors, a fact allegedly not disclosed in the wife’s submissions.  The husband argued that the wife’s failure to mention the fact of her employment and the failure to provide a more recent statement of her income, enabled this court to infer that those facts, if disclosed, would not assist the wife’s case for costs and that “it can be inferred that the wife’s costs had been met as an employee of the solicitors for the wife”.

7. Even if we knew what the suggested inference meant, in circumstances in which we have received submissions, not further evidence, as to the question of costs, we consider it inappropriate to draw inferences as contended for on behalf of the husband.

Discussion

1. In our view, the failure of the appeal is the factor of particular weight among the factors mentioned, particularly in the context of the abandonment of a number of grounds.  We consider that the husband ought pay the wife’s costs of and incidental to the appeal.

ORDERS

1. That the appeal against the costs order made by Rimmer FM on 17 February 2005 be dismissed.

2. That the husband pay the wife’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.

I certify that the 18 preceding
 Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd: 

Associate