Scrymegeour & Scrymegeour
[2014] FamCAFC 130
FAMILY COURT OF AUSTRALIA
| SCRYMEGEOUR & SCRYMEGEOUR | [2014] FamCAFC 130 |
| FAMILY LAW – APPEAL – PROPERTY – PROCEDURAL FAIRNESS – Where the appellant husband submitted that the trial judge adopted a different course from that discussed at trial – Where the trial judge adopted a single pool approach including the parties’ assets and superannuation interests when both parties submitted a two pool approach would be appropriate in the circumstances and despite the concurrence of the trial judge with this approach during the trial – Where the respondent wife sought at trial 50 per cent of the superannuation assets of the parties and the appellant husband proposed that the wife receive 45 per cent, the trial judge determined that the respondent wife should receive 65 per cent of all assets including superannuation – Where the parties at trial were in agreement that any periodic spouse maintenance order should be confined to two years – Where the trial judge’s orders required payment of periodic spouse maintenance for five years – Where the parties were not given any opportunity to be heard on the adoption of a single asset pool, on the percentage division of the superannuation assets or the duration of periodic spouse maintenance – Where the result was manifestly unjust to the appellant husband – Appeal allowed. FAMILY LAW APPEAL – COSTS – Where the appeal succeeded on a relatively narrow question of law which should have been apparent to the parties – Where the appellant husband needed to articulate concise grounds of appeal – Where the success of the appeal on an obvious point warrants the payment of some costs by the respondent wife to the appellant husband – Where the appellant should not receive all costs because of the needless expense incurred by the respondent wife in addressing grounds of appeal not pursued – Respondent wife to pay one-half of the appellant husband’s costs of the appeal – Costs certificates granted to the parties for the re-hearing. |
Family Law Act 1975 (Cth) ss 75, 77A, 79
Federal Proceedings (Costs) Act1981 (Cth) s 8
| Family Law Rules 2004 (Cth) r 1.04 |
Durham v Durham (2011) 80 NSWLR 335
Kuru v NSW (2008) 236 CLR 1
Coghlan & Coghlan (2005) FLC 93-220
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
RCB v Forrest & Ors (2012) 247 CLR 304
Stead v State GIO (1986) 161 CLR 141
Tame v NSW (2002) 211 CLR 317
| APPELLANT: | Mr Scrymegeour |
| RESPONDENT: | Ms Scrymegeour |
| FILE NUMBER: | SYC | 6038 | of | 2010 |
| APPEAL NUMBER: | EA | 11 | of | 2013 |
| DATE DELIVERED: | 23 July 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ryan & Austin JJ |
| HEARING DATE: | 14 May 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2012 |
| LOWER COURT MNC: | [2012] FamCA 1080 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Othen |
| SOLICITOR FOR THE APPELLANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Mr Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Stephen & Tozer Solicitors |
Orders
The appeal be allowed.
The orders made by Cleary J on 20 December 2012 be set aside.
The proceedings be remitted to the Family Court of Australia for re-hearing in the Brisbane Registry before a judge other than Cleary J.
The respondent wife shall pay one-half of the appellant husband’s costs of and incidental to the appeal on a party/party basis in the sum agreed or in default of agreement as assessed.
The Court grants to both the appellant husband and the respondent wife costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant husband and the respondent wife in respect of the costs incurred by them in relation to the re-hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scrymegeour & Scrymegeour 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 SYDNEY |
Appeal Number: EAA 11 of 2013
File Number: SYC 6038 of 2010
| Mr Scrymegeour |
Appellant
And
| Ms Scrymegeour |
Respondent
REASONS FOR JUDGMENT
Strickland J
In this appeal I have had the advantage of reading the draft reasons for judgment of Ryan and Austin JJ. I agree with those reasons and the orders proposed by their Honours, but I wish to say something in addition in relation to the grounds of appeal.
As is highlighted by my colleagues there were 17 principal grounds of appeal, but taking into account the sub-grounds, there were in fact 53 separate grounds enumerated in the Notice of Appeal. This was a remarkably prolix and complicated articulation of the husband’s grievances, and requires comment from this Court.
Concise articulation of the grounds of appeal is particularly important because the grounds are intended to be the means by which the attention of this Court is drawn to the real issues in the appeal. The opposite is achieved when, as here, the sheer number of the complaints raised, and the repetitive nature of those complaints, clouds rather than reveals those issues.
The inappropriate and unnecessary inclusion of most of the grounds of appeal is demonstrated by the amended summary of argument filed by the husband some weeks before the hearing of the appeal commencing with the following statement:
1. Grounds 4 & 10 represent the nub of the appeal.
As is emphasised by my colleagues Grounds 4 and 10 collectively comprised only four of the 53 separate grounds. Further, when challenged by us about the manner in which the appeal would be presented, it was conceded by the husband’s counsel that if those two grounds were sustained, all other grounds of appeal were subsumed within them. That admission being made at the hearing, the wife’s counsel then followed with appropriate concessions, and the appeal was disposed of in approximately one hour. What clearly emerges from this is that if the grounds of appeal had been drawn appropriately, there was the prospect of significant savings in costs, time and resources, both from the parties’ and the Court’s perspectives.
Ryan & Austin JJ
On 16 January 2013 the husband filed a Notice of Appeal against the orders made by Cleary J on 20 December 2012 determining the disputes between the husband and the wife over their property settlement and the payment of spousal maintenance pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
In circumstances where the assets and superannuation interests of the parties were collectively worth a little less than $2,000,000, the orders allowed the parties to retain various chattels and cash, required the husband to pay to the wife $403,353 in cash, split the sum of $710,029 from the husband’s superannuation interest for the wife’s benefit, and obliged the husband to pay spousal maintenance to the wife at the rate of $366 per week for five years.
The wife enjoyed resounding success, achieving a far better result than that for which even she advocated.
The husband’s principal arguments, to the effect that the result was manifestly unjust and was reached in a manner that denied him procedural fairness, were established and the appeal must therefore succeed.
Background facts
The parties met in 1986 and married in 1987. They separated in March 2010, after cohabitation of some 23 years. They are now divorced.
They have four children who, at the time of hearing, were respectively aged 21, 19, 17, and 12 years. Two of the elder children live independently from the parties. The youngest child and another of the elder children live with the wife. The youngest child spends time with the husband.
Throughout the marriage and after separation the husband was employed as a transport industry professional. He was 53 years of age at the time of hearing and it was anticipated he would continue to work as a transport industry professional.
The wife was also 53 years of age at the time of hearing. In addition to engagement in periodic paid employment, the wife was the principal carer for the youngest child.
After separation, the wife and at least the youngest child moved interstate. The husband remained in occupation of the family home, which was sold in
March 2012.
The trial judge’s reasons for judgment
The trial judge found (at [21]) that at the time of hearing the parties had assets of $503,260 and superannuation interests of $1,446,758, the combined value of which was therefore $1,950,018. Although the parties each contended the assets should be differently constituted or valued, principally through disputes about the notional add-back of various amounts of money, those findings were the subject of only the faintest of challenge by the husband in only one of many grounds of appeal.
The trial judge recorded the parties’ mutual concession that their contributions to the date of separation were equal (at [30] and [59]) and then found the wife’s greater post-separation contributions resulted in an adjustment in her favour of five per cent. Dealing with circumstances post-separation, the trial judge said:
31.The husband lived in the matrimonial home. At different times one or more of the children lived with him.
32.The wife has lived in Brisbane in a townhouse owned by her parents. At different times one or more of the children have lived with her. Presently one daughter attending University and their youngest child [T] live with her (sic).
33.The husband met the mortgage and outgoings. The source of funds for these payments is unclear. It was a combination of joint funds and income. The husband intermingled income with assets.
34.The lack of clarity about this issue arose from the failure of the husband to attend to the preparation of taxation returns for 2009, 2010 and 2011 and an overall failure to make adequate financial disclosure prior to hearing. The matter became part heard for that reason.
35.The husband paid the joint obligation of the parties in respect of the matrimonial home on behalf of the parties. He has had the benefit of living in it. He had exclusive use of the proceeds of sale of a jointly owned property at [Property G]. The husband has used joint funds for both joint expenses and personal expenses.
36.The wife has consistently had the care of the youngest child. There should be an adjustment of five per cent in favour of the wife for the period since separation to balance her need to find accommodation, her lack of access to joint funds, and to recognise her support and supervision of the parties’ youngest child.
37.Accordingly at date of hearing I find the contributions to favour the wife in the ratio 55 per cent to 45 per cent.
Turning to the statutory considerations mandated by ss 79(4)(d)-(g) and 75(2) of the Act, the trial judge assessed an adjustment in favour of the wife of 10 per cent, observing:
45. There is an enormous disparity in income between the parties. The wife has the responsibility for the care of the parties’ youngest child who is now 12. He has five more years at High School and may proceed to University.
46.In my view these two factors call for an adjustment in favour of the wife of 10 per cent. This adjustment would have been greater, but for the order I propose to make for spouse maintenance for a period of five years. This financial support will enable the wife to be a little more available to [T] in the way she wishes and also to retrain in an occupation in which she is confident of finding employment which will improve her position.
The trial judge therefore reached a conclusion, which was expressed as follows:
47. The ultimate division is therefore 65/35 of the total net asset pool. This amounts to a split of the net asset pool of $1,267,512 to the wife and $682,506 to the husband.
The trial judge then proceeded to consider whether that outcome was just and equitable, acknowledging (at [48]) that the husband would consequently be left with “few or no tangible assets”.
Her Honour determined the outcome was indeed just and equitable (at [52]), even though it was clear the husband was required to make a cash payment of $403,353 to the wife (at [53]) when he would only retain assets with a collective value of $371,830, excluding paid legal fees of $4,000 which had been notionally added-back to his share of the assets and allowing for his credit card debt of $30,000.
The trial judge then turned to the parties’ dispute about spousal maintenance. Although the husband in fact proposed that he be ordered to pay periodic spousal maintenance to the wife, his initial proposal was that as part of the adjusting amount payable to the wife, $90,000 would be recognised as provision for maintenance of the wife, which link the trial judge properly acknowledged (at [55]). Nonetheless, despite rejection of the husband’s proposal as to property settlement, the trial judge found the wife needed spousal maintenance and ordered the husband to pay to her the sum of $366 per week for a period of five years, implicitly finding the husband had the capacity to pay that amount for that period (at [56]-[58]).
The grounds of appeal
Nine of the trial judge’s ten orders as to property settlement and spousal maintenance were the subject of the appeal.
The appeal comprised 17 principal grounds of appeal, but taking into account the sub-grounds of appeal, there were in fact some 53 separate grounds enumerated within the Notice of Appeal. Some of them were meritorious, but many of them were not.
When, as occurred here, a Notice of Appeal specifies 53 grounds of appeal in relation to a relatively short judgment the Court is entitled to be circumspect about their merit (see Tame v NSW (2002) 211 CLR 317 per McHugh J at 345; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]).
It is instructive to recite the recent comments of the NSW Court of Appeal in relation to an appeal in that jurisdiction from a discretionary decision (see Durham v Durham (2011) 80 NSWLR 335 per Campbell JA at 353, with whom Tobias and Young JJA both agreed at 341, 353):
84. Proper identification in a notice of appeal of the grounds of appeal against a decision under the Family Provision Act or Succession Act is not a matter of pointless compliance with rules. It serves a real purpose in promoting the just, quick and cheap resolution of the real issues in the proceedings (compare s 56 Civil Procedure Act 2005). Precise identification of possible grounds of appeal is a necessary part of a lawyer advising whether to appeal. Early and precise identification of the respects in which the judgment below is alleged to be mistaken assists in focusing the mind of the person advising on an appeal or drafting the notice of appeal. The drafter is encouraged to consider whether the respects in which it is contended that the judge was mistaken are really matters that could be the basis of an appellate court overturning that decision.…
85. Appeals are costly. The present appeal was quite simple, and argument of the appeal finished in less than an hour and a half as the respondent was not called on. We are informed that the solicitor-client costs and disbursements of the two sides together of the present appeal would exceed $38,000. The professional costs part of that sum exceeds $33,000, of which, for some reason not readily obvious, the costs of the appellant are over 63%. All too often the parties to Family Provision litigation simply cannot afford the sort of costs that have been incurred in the present appeal.
The parallels with this appeal are obvious. The Court’s main purpose in this jurisdiction is also to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case (Rule 1.04 of the Family Law Rules 2004 (Cth)). Lawyers and litigants need to form early and reasonable opinions about whether appeals should be pressed or resisted, because litigation in this jurisdiction is apt to exact both high financial and emotional tolls. Although outstanding for over a year, the appeal was concluded within little more than an hour of oral hearing once the central issues were identified and debated.
Grounds 4 and 10 of the appeal, which collectively comprised only four of the total 53 grounds and sub-grounds, were contended by the husband to represent the “nub of the appeal”. They were the grounds that asserted his denial of procedural fairness and the manifest injustice of the result. The husband acknowledged that, if the principal grounds about manifest injustice or the denial of procedural fairness were sustained, then all other grounds of appeal were subsumed within those arguments.
The wife ultimately conceded in oral submissions that the husband had indeed been denied procedural fairness in respect of both the property settlement and spousal maintenance orders. There was consequently a uniform sense of disillusionment about why the appeal remained contested for so long.
For those reasons it is unnecessary to deal with any ground of appeal other than those that pertain to the submissions about manifest injustice and the denial of procedural fairness, even though it is ordinarily desirable for an intermediate court of appeal to determine all grounds of appeal (see Kuru v NSW (2008) 236 CLR 1 at 6). Success of the appeal on either of those two bases would vitiate the decision at first instance and mandate remitter of the proceedings for fresh hearing.
Denial of procedural fairness and manifest injustice
The numerous allied contentions about procedural unfairness and manifest injustice set out within the Notice of Appeal need not be recited in full since they were prolix and there was no misunderstanding about the nature of the asserted errors under the rubric of those principles.
In order to demonstrate the denial of procedural fairness it is necessary to advert to the discourse between the trial judge and counsel during final submissions and to compare that with the trial judge’s reasons and the orders made.
As to the property settlement orders, although the parties sought division of the assets and superannuation interests in different proportions, both parties plainly contended for the compilation of two separate pools of property – one comprising assets and the other comprising superannuation interests – which the trial judge well understood.
During the husband’s counsel’s submissions to her Honour, the following exchanges occurred:
Mr Batey: What then as to the approach to be taken? I would agree with my friend – I think one of the few areas we do – that it should be a two pooled approach. The easier pool to approach is, of course, the superannuation, and that being that it’s not in contest.
…
Her Honour: Well, since both counsel have asked for it, I’m going to treat the two pools separately…
(Transcript 3/8/12; page 79, lines 39-41; page 85, lines 19-20)
It was also plainly the wife’s case that she was entitled to 65 per cent of the assets and 50 per cent of the superannuation interests, which submission the trial judge indicated she understood. The following exchanges occurred during the wife’s counsel’s submissions:
Mr Shoebridge: …the wife’s position will be ultimately that your Honour would award 65 per cent of the non-superannuation to her, and 50 per cent of the superannuation interests to her.
…
Her Honour: All right. So 65/35 overall on the asset pool, excluding superannuation.
Mr Shoebridge: Yes, your Honour.
Her Honour: And equal sharing in the superannuation.
Mr Shoebridge: Yes, your Honour.
(Transcript 3/8/12; page 69, line 46 to page 70, line 2; page 70, lines 28-35)
The husband instead contended for the wife to receive 55 per cent of the assets, together with 45 per cent of his superannuation interest to add to her own superannuation interest worth $26,700, and again the trial judge indicated she understood this. The following exchanges occurred during the husband’s counsel’s submissions:
Mr Batey: Whatever the pool is that your Honour finds, then it should be 55 per cent to the wife and 45 per cent to the husband of the amended net tangible asset pool…
Her Honour: …45 per cent of the husband’s superannuation should be attributed to the wife…
Mr Batey: Correct.
Her Honour: …and
Mr Batey: 55 per cent of the non-super pool to the wife.
Her Honour: Yes. All right.
Mr Batey: Well, be careful with – yes.
Her Honour: Excluding 26,000
Mr Batey: I have used the wrong terminology. 45 per cent of his superannuation entitlements…
Her Honour: No. I understand that it’s in addition to the 26,700 that the wife presently has in superannuation.
Mr Batey: Yes.
Her Honour: It’s 45 per cent of the husband’s superannuation…should be attributed to the wife…and joined with her pool.
Mr Batey: Yes.
(Transcript 3/8/12; page 83, line 11 to page 84, line 11)
That being the case, the parties were 10 per cent apart on the wife’s proportional entitlement to the assets, which amounted to little more than $50,000, and slightly less than about $60,000 apart on the manner of distribution of their superannuation interests.
Despite concurrence about the Court approaching the task of property settlement by reference to two separate pools and also the wife’s overall share of those two pools being pitched considerably lower by both parties, the
trial judge determined the wife’s entitlement to be 65 per cent of the entirety of the parties’ assets and superannuation interests (at [21], [47]). The trial judge’s decision to adopt that approach without notice to the husband deprived him of the opportunity to address the Court about critical considerations: why advertence to two pools rather than one was the preferable course and how, if one consolidated pool was to be used, a just and equitable result might be achieved when the husband’s superannuation interest alone amounted to more than 72 per cent of that single pool.
The husband would likely have had considerably more to say on the matter if he had known the trial judge would adopt a different course to that consensually submitted by the parties and, just as significantly, expressly accepted as appropriate by the trial judge. The preferred approach was for the trial judge to deal separately with the parties’ assets and superannuation interests, and their contributions thereto (see Coghlan & Coghlan (2005) FLC 93-220 at 79,645-6). The husband had no need to address that legal issue in light of the parties’ agreement and the trial judge’s assurance that the preferred course would be adopted. We also observe that her Honour provided no reasons for departing from the usual course.
The contrary approach adopted by the trial judge without notice to the parties and without reasons resulted in the wife receiving assets and superannuation interests with a combined value of $1,267,512.
On the wife’s own submissions, by reference to the trial judge’s findings about the identity and values of the assets and superannuation interests, she would have received assets worth $327,119 and superannuation interests worth $723,379, totalling $1,050,498.
The wife therefore received assets and superannuation interests under the
trial judge’s orders worth $217,014 more than she proposed and nearly $330,000 more than the husband proposed she receive. The disparity between the actual result and the results contended for by the parties therefore represented a very substantial proportion of their entire assets and superannuation interests.
Despite the trial judge’s satisfaction that the result was just and equitable, we accept it was manifestly unjust to the husband. Apart from being well outside the scope of the dispute constructed by the parties, it resulted in the wife receiving more than 100 per cent of the tangible assets and actually required the husband to incur debt to raise cash to give to the wife.
The husband’s total entitlement was calculated by the trial judge at $682,506. Even if he liquidated every asset he owned to meet the cash payment due by him to the wife he would still be left with over $27,000 worth of debt, because the orders mandated that he receive a portion of his superannuation interest valued at $710,029. If he was interested in retaining any of the assets left within his dominion then he was obliged by the orders to enlarge the debt to satisfy the wife’s entitlement, which outcome on the facts as found by
her Honour was neither just nor equitable.
In deciding to apply the same proportional division to superannuation interests as was applied to assets, the trial judge omitted to give discrete consideration to the parties’ respective post-separation contributions to the superannuation interests, which was the gravamen of another of the husband’s complaints (Ground 7).
It will be remembered the parties agreed, and the trial judge accepted, their overall contributions were equal up until the time of separation. From the time of separation until the hearing, which was a period of only two years, the
trial judge found the wife’s contributions were greater than the husband’s and made a five per cent adjustment (at [36]). The reasons given for the adjustment did not incorporate any consideration of the husband’s post-separation contributions to his superannuation interest, which interest increased by some $246,000 in that post-separation period. The omission to incorporate that factor in deliberations under s 79(4)(a) of the Act was itself an error, but compounded the manifest injustice of the ultimate result.
As to the spousal maintenance orders, the scope of the parties’ dispute narrowed during the hearing. The husband initially proposed payment of $90,000 as lump sum spousal maintenance to the wife, packaged with the property settlement pursuant to s 77A of the Act, but then ultimately proposed payment of weekly spousal maintenance for a period of two years. The wife commenced the hearing seeking the husband’s payment to her of $366 per week for a finite period of five years, but in final submissions she reduced the claim to a period of only two years, even though she maintained the quantum of the claim at $366 per week. On that point, the following exchanges appear in the transcript:
Mr Shoebridge: …a claim for two years in the circumstances of my client at her age seeking to retrain herself is, in my submission, not ambitious at all. Your Honour, is there any other way that I can assist you?
Her Honour: No. I think that’s entirely clear to me about what your position is…And the basis for it.
(Transcript 3/8/12; page 76, lines 21-29)
Mr Batey: It has got to be difficult to avoid a finding that she hasn’t got some form of need but your Honour would be well aware that open-ended spouse maintenance orders are not attractive to the court. I think my friend said two years at 366. Can I suggest to your Honour that two years at 200 might be more appropriate figure…
(Transcript 3/8/12; page 87, lines 39-42)
Thus, the parties were in agreement that any periodic spousal maintenance order should be confined to a period of two years. Implicitly they agreed the wife needed maintenance and the husband had the capacity to pay it. While they disputed the quantum of the weekly payment, the quantum was not the subject of any separate ground of appeal. That is hardly surprising since the husband’s gross annual income exceeded $300,000.
In circumstances where both parties submitted the weekly spousal maintenance payments should be confined to two years it was surprising for the orders to subsequently require payment of the maintenance for five years. The trial judge explained the period of five years was chosen to cover the remainder of the parties’ youngest child’s education and to facilitate the wife’s intended course of study (at [57]-[58]). Whether that was a correct determination on the evidence was itself an issue, but most importantly, the husband was deprived of any opportunity to argue why five years was an unreasonably long period when the parties jointly submitted to the Court that the maintenance payments should not exceed two years.
Procedural fairness is an essential characteristic of any judicial proceeding (see RCB v Forrest & Ors (2012) 247 CLR 304 at 309, 321), but its denial will not result in a successful appeal and a new trial if it was meaningless to the ultimate outcome (see Stead v State GIO (1986) 161 CLR 141 at 145). The denial of procedural fairness to the husband in these proceedings, however, was a significant feature of the hearing, both as to the property settlement and spousal maintenance components of it, since the orders made by the trial judge represented a substantial departure from agreed positions adopted by the parties without notice to them.
The appeal should be allowed and the proceedings remitted for re-hearing. The husband’s counsel asked us to consider re-exercising the discretion at least on the issue of spousal maintenance, but there is no utility in doing so because spousal maintenance is very much dependent on the orders made as to property settlement and thus both issues should be the subject of the re-hearing.
The parties both now reside in Queensland and both desired the re-hearing to be conveniently heard in Brisbane. The orders so provide.
Costs
At the conclusion of the hearing we sought submissions from counsel as to the question of costs depending on the result of the appeal.
In the event the appeal was successful the husband’s counsel sought an order for costs against the wife, but only from 22 February 2013. That was the date of a letter apparently sent on behalf of the husband to the wife’s solicitors outlining the arguments as to why the appeal should succeed. We were told there was no reply to this letter and it was said the husband should have his costs from that date. Alternatively, if no costs were ordered against the wife, the husband’s counsel instead sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and for the re-hearing, if the appeal succeeded on questions of law.
The wife’s counsel opposed any order for costs. He confirmed the letter dated 22 February 2013 had been sent, but that occurred prior to the filing of a summary of argument. It was common ground the letter did not contain any offer of settlement and so it was contended the wife could not be expected to respond to it.
The letter referred to in submissions was not produced and so it is impossible for us to resolve the controversy about whether or not it was unreasonable for the wife not to have responded to it in a timely way so as to avert the need for any further contest.
The appeal succeeded on a question of law, but on a relatively narrow ground which was, or should have been, reasonably obvious. The wife should have capitulated, but on the other hand, the appeal was unnecessarily complicated by the vast number of grounds of appeal and the length of the written submissions filed in support of those grounds. The wife was obliged to address all of the grounds and the submissions.
We are of the view that the success of the appeal on an obvious point warrants the wife’s payment of some costs to the husband, but the husband should not have all his costs because he caused the wife to needlessly incur expense addressing grounds and arguments that were not eventually pursued. Both parties must take responsibility for how the appeal has reached this stage. We therefore order the wife to pay one-half of the husband’s costs of the appeal on a party/party basis.
Since the appeal did succeed on questions of law it is appropriate to issue costs certificates to the parties in respect of the re-hearing now required, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 23 July 2014.
Associate:
Date: 23 July 2014
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