SAMPSON & CABLE

[2017] FamCAFC 51

FAMILY COURT OF AUSTRALIA

SAMPSON & CABLE [2017] FamCAFC 51

FAMILY LAW – APPEAL – COSTS – Application for costs of discontinued appeal – Where the appellant discontinued the appeal the week it was listed before the Full Court – Where the respondent had made offers of settlement – Where impecuniosity is not a bar to the making of a costs order – Appellant to pay respondent’s costs.

Family Law Act 1975 (Cth) ss 94AAA(3), 117

APPLICANT:	Ms Cable
RESPONDENT:	Mr Sampson

FILE NUMBER: CAC 417 of 2014

APPEAL NUMBER: EA 20 of 2016

DATE DELIVERED: 23 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 23 March 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 12 January 2016

LOWER COURT MNC: [2016] FCCA 17

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hassall

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

THE RESPONDENT: In person (via telephone)

Orders

1. That the father pay the mother’s costs of and associated with the discontinued appeal EA 20 of 2016, such costs to be agreed or assessed.

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 Sampson & Cable 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 20 of 2016
File Number: CAC 417 of 2014

Ms Cable

Applicant

and

Mr Sampson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Sampson (“the father”) and Ms Cable (“the mother”) are the parents of X who was born in 2008 and Y who was born in 2011.  On 12 January 2016 Judge Hughes made orders that the mother have sole parental responsibility for the major long-term decisions in relation to the children, subject to consulting with the father and seeking his views, and that the children live with her. Her Honour’s orders also provided for the children to spend time with the father during the school term, holidays and special, specified days.

2. The father appealed the orders as related to parental responsibility, with whom the children live, and the time they spend with him during the week and in school holidays.

3. Directions were made for the preparation of the appeal and it was listed for hearing on 23 March 2017 before the Full Court.  On 20 March 2017 the father notified the Appeal Registry and the mother that he intended to discontinue the appeal and he did so.  Having received that information, the mother notified the father of her intention to seek the making of a costs order in relation to the discontinued appeal.

4. As a result of a direction by the Chief Justice given under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), the issue of the costs of the discontinued appeal is to be considered by me sitting as a single judge of appeal.

5. The question of costs on appeal is governed by s 117 of the Act which provides that, as a general rule, each party to proceedings under the Act shall bear his or her own costs unless the court is of the opinion that there are circumstances that justify the making of a costs order.

6. It was first put on behalf of the mother that a costs order should be made on an indemnity basis, that is on a solicitor/client basis. Nothing was put in submissions which would justify that order and no reference to the relevant authorities was made. In any event I see nothing in the conduct of this case which would warrant that special order, that is an indemnity costs order. I am not satisfied that there has been any abuse of process or conduct which would otherwise justify such an order being made.

7. Turning then to whether a costs order should be made; in my view, the withdrawal of the appeal for whatever reason, in effect, on the eve of the appeal hearing, and the costs and inconvenience thrown on the mother is of itself a circumstance that justifies the making of a costs order. Further, offers were made between the parties. In particular on 30 January 2017 the mother offered to the father that he withdraw the appeal on the payment of $7700 and, in the light of the earlier offers, that is a matter I take into account in my decision.  

8. The father says he is impecunious and that he is no longer working. He also says that he has money in the bank and he owns a unit, although he submits that he needs the money he has to provide for his medical expenses and for the benefit of the children.

9. Impecuniosity is not a bar to the making of a costs order if one is otherwise justified and in my view it is.

10. Therefore I shall make the following order:

    (1)That the father pay the mother’s costs of and associated with the discontinued appeal EA 20 of 2016, such costs to be agreed or assessed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 23 March 2017.

Associate: 

Date:  30 March 2017