Sanders & Sanders (No 2)

[2023] FedCFamC1A 1

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Sanders & Sanders (No 2) [2023] FedCFamC1A 1

Appeal from:

Sanders & Sanders [2022] FedCFamC1F 213

Appeal number:

NAA 96 of 2022

File number:

SYC 7660 of 2020

Judgment of:

AUSTIN, BENNETT & GILL JJ

Date of judgment:

27 January 2023

Catchwords:

FAMILY LAW – APPEAL – COSTS – Where the respondent sought to adjourn the consideration of costs until after the handing down of judgment – Where the appeal was dismissed – Where the appellant father has been wholly unsuccessful in their appeal – Where the appellant father did not file written submissions in opposition to an application for costs – Where cost submissions were made only by the respondent mother – Consideration of s 117 of the Family Law Act 1975 (Cth) – Costs ordered in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) s 117

Cases cited:

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Quickley & Pelissier [2016] FamCAFC 124

Number of paragraphs:

17

Date of last submission:

13 December 2022

Date of hearing:

Heard by way of written submissions

Place:

In Chambers

The Appellant:

Litigant in person

Counsel for the Respondent:

Mr Givney

Solicitor for the Respondent:

Minors Family Law

Counsel for the Independent Children’s Lawyer:

Mr O’Brien

Solicitor for the Independent Children’s Lawyer:

Russell Kennedy Lawyers

ORDERS

NAA 96 of 2022
SYC 7660 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SANDERS

Appellant

AND:

MS SANDERS

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:	AUSTIN, BENNETT & GILL JJ
DATE OF ORDER:	27 January 2023

THE COURT ORDERS THAT:

1.The appellant pay the respondent’s costs of the appeal fixed in the sum of $8,900.37 within 28 days of these orders in accordance with a direction provided to him in writing by the respondent’s legal representatives.

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 a pseudonym Sanders & Sanders (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN, BENNETT & GILL JJ:

1. This judgment concerns an application for costs of the appeal by the respondent following the dismissal of the appeal.

2. At the conclusion of the hearing of the appeal the court invited submissions in relation to costs. During those submissions the respondent sought to adjourn the consideration of costs until after the handing down of judgment in the substantive appeal, on the basis that further evidence may then be relied upon addressing s 117(2A)(f) of the Family Law Act 1975 (Cth) (“the Act”).

3. On delivery of that judgment directions were then given for the filing of evidence in relation to costs by the respondent within seven days of judgment and the appellant within 14 days of the judgment.  Neither did so.

4. Directions were also given for the filing of written submissions, requiring the respondent to do so within 21 days of the judgment, and the appellant within 28 days of the judgment.  The respondent did so, the appellant did not.

5. Whilst the respondent also annexed evidential material to her submissions, such was not in accordance with the directions given and will be disregarded.

6. Finally, a direction was made for the issue of costs to be then dealt with on the papers.

   Orders sought

7. At the hearing of the appeal, the respondent sought costs in the sum of $8,900.37 as per her costs notice of 22 August 2022.  However, in her written submissions the respondent now seeks orders in the following terms:

   a.From 5 May 2022 to 11 July 2022, costs sought at scale (in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia Rules (Family Law) 2021) – $3,706.326; and

   b.From 12 July 2022 to 22 November 2022 (inclusive), costs sought on an indemnity basis – $23,505.73.

   (Respondent’s written submissions filed 13 December 2022, page 7)

   Principles and discussion

8. The starting point, as set out at s 117(1) of the Act, for the consideration of costs is that each party bear their own costs. However, subject to the balance of s 117, where there are “circumstances to justify it doing so” the court may make such order for costs as it considers just. In Penfold v Penfold (1980) 144 CLR 311, the High Court observed that all that is required as a prerequisite to the making of a costs order is that there be justifying circumstances, there being no additional or special onus beyond this. Section 117(2) does not specify what is to inform the exercise of the court’s discretion to find that there are circumstances which justify a costs order being made. It follows, therefore, that all but extraneous matters may be taken into account including the matters specified in s 117(2A). In our opinion, the appellant’s lack of success on appeal justifies a costs order being made.

9. Section 117(2A) sets out the relevant considerations for determining what, if any, order for costs should be made. Of those considerations the respondent relies upon the financial circumstances of the parties, the conduct of the parties in relation to the proceedings, that the appellant was wholly unsuccessful, and that a relevant offer had been made in writing to settle the proceedings.

10. In relation to these considerations, the respondent identifies that the appellant implicitly conceded a substantial income of $795 per day (net) in his Schedule of Costs filed 23 August 2022.  The respondent also pointed to further proceedings indicating the appellant’s default in relation to the property related orders.  Little else was established, in the absence of supplementary evidence, as to the respondent’s or the appellant’s financial circumstances. However, the reference to the appellant’s income is sufficient to indicate a capacity on his part to meet a costs order.

11. The respondent also relies upon the conduct of the appellant in the lead up to and presentation of the appeal.  At an early stage it was identified to the appellant that his appeal grounds were defective.  Whatever steps were taken by the appellant in relation to such, by the hearing of the appeal he was still pursuing appeal grounds that were lacking in clarity and ultimately failed to identify any error on the part of the trial judge.  Further, the application to adduce further evidence on appeal was also deficient.

12. The appellant may be seen to have been wholly unsuccessful on appeal.

13. Whilst the respondent sought to rely upon a written offer, her failure to provide evidence of such in accordance with the directions means that such a proposition was unsupported.

14. The above matters justify an order that the appellant pay the respondent’s costs in the usual manner.

15. However, the respondent seeks that a portion be paid on an indemnity basis. It is well established authority that such an order requires “some special or unusual feature in the case to justify the court departing from the ordinary practice” and requires exceptional circumstances to justify such a “very great departure from the normal approach” (Quickley & Pelissier [2016] FamCAFC 124 at [120]–[121], Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 46 FCR 225 and Kohan and Kohan (1993) FLC 92-340). It is reserved for the most extreme cases.

16. The matters identified by the respondent in her written submissions, while establishing a confused, misguided approach by the appellant, despite the opportunities afforded to him to correct his approach, do not rise to such a description.  An order for indemnity costs should not be made.

17. Rather, an order should be made in a fixed sum of $8,900.37, as established in accordance with the relevant schedule by the respondent’s costs notice of 22 August 2022.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Bennett & Gill.

Associate:       

Dated:       27 January 2023