Seymour and Seymour (Costs)
[2011] FamCAFC 185
•12 September 2011
FAMILY COURT OF AUSTRALIA
| SEYMOUR & SEYMOUR (COSTS) | [2011] FamCAFC 185 |
| FAMILY LAW – APPEAL – COSTS – where both parties were wholly unsuccessful in their respective applications for leave – where the financial circumstances of the parties is such that they are able to meet any order for costs – where the wife seeks a primary order that each party bear their own costs – where the husband’s submissions suggesting an order for costs is justified were not accurate – there be no order for costs. |
| Family Law Act 1975 (Cth) s 117 |
| APPLICANT: | Ms Seymour |
| RESPONDENT: | Mr Seymour |
| FILE NUMBER: | LNC | 71 | of | 2008 |
| APPEAL NUMBER: | SA | 85 | of | 2009 |
| DATE DELIVERED: | 12 September 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | By way of written submissions |
| JUDGMENT OF: | Strickland J |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 13 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 846 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Andrea Trezise |
| SOLICITOR FOR THE RESPONDENT: | G. A Richardson |
Orders
There be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Seymour & Seymour (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 85 of 2009
File Number: LNC 71 of 2008
| Ms Seymour |
Applicant
And
| Mr Seymour |
Respondent
REASONS FOR JUDGMENT
Introduction
On 3 May 2011 I made orders dismissing the application filed by the wife on 2 December 2009 for leave to appeal against orders made by Federal Magistrate Roberts on 13 August 2009, and the application filed by the husband on 15 June 2010 for leave to cross-appeal against those same orders.
At the same time I gave each party liberty to file written submissions within 28 days in relation to the costs of those applications as well as the costs of the application in an appeal filed by the husband on 15 June 2010 seeking an extension of time to file a notice of cross-appeal against the said orders made by Federal Magistrate Roberts. On 24 August 2010 I granted the husband’s application in an appeal and reserved the question of the wife’s costs in relation thereto.
I then allowed a further 28 days for each party to file any submissions in response.
Pursuant to those orders the wife filed written submissions on 30 May 2011, the husband filed written submissions on that same day, and the wife filed responding submissions on 21 June 2011.
The wife sought an order that “each party pay their own costs of and incidental to all proceedings”. In the alternative she sought the following orders:
(a)The Respondent pay the Appellant’s costs of and incidental to the Application in an Appeal and Application for Leave to Cross-appeal filed the 15th of June 2010;
(b)The Respondent pay the Appellant’s costs of and incidental to the Appellant’s preparation for and appearance at the hearing on the 12th of May 2010 and mention on the 2nd of June 2010;
(c)In the event that the Appellant is ordered to pay the Respondent’s costs of the Application for Leave to Appeal filed the 2nd of December 2009, the Orders for costs in favour of the Appellant as sought in sub-paragraphs a and/or b hereof be set off against any Order in favour of the Respondent for costs;
(d)costs be ordered on a party-party basis.
The husband sought an order that “the wife pay the husband’s taxed costs of the wife’s application for leave to appeal”. The wife opposed this order in her responding submissions.
The applicable legislation
An application for costs is governed by s 117 of the Family Law Act 1975 (Cth), and the relevant subsections are as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
Discussion
Both parties were “wholly unsuccessful” in their respective applications for leave, and this circumstance justifies orders for costs in favour of each of them.
With the husband’s application for an extension of time, although he was successful, the circumstances of the application would ordinarily justify an order for costs in the wife’s favour.
I observe that neither party has indicated what the amount of their costs might be, but it is common ground that the financial circumstances of each party is such that they are able to meet an order for costs if one is made.
Despite the fact that the wife would be entitled to an order for costs in relation to the husband’s application for an extension of time, she has adopted a sensible approach of primarily seeking that each party bear their own costs in respect of all matters.
It is also arguable that by taking that approach the wife is conceding costs that she would otherwise be entitled to as a result of the husband’s conduct.
As the wife correctly submits, her application for leave to appeal was listed for hearing on 12 May 2010, yet the hearing did not proceed because of the late receipt of submissions on behalf of the husband asserting that the Federal Magistrate did not have jurisdiction to hear the application of the wife in the first place, and that not being a matter that was raised with the Federal Magistrate.
That of course resulted in the husband filing his application seeking an extension of time and the filing of his application for leave to cross-appeal. The latter application was of course ultimately dismissed by me.
In these circumstances it is frankly outrageous for the husband to seek an order for costs in his favour. Looking at the matter with hindsight, if he had not sought to agitate the claim of lack of jurisdiction and the matter proceeded simply on the wife’s application for leave to appeal he would have been entitled to costs, but his unsuccessful application for leave to cross-appeal which justified an order for costs in favour of the wife, clearly offsets any order for costs that he is otherwise entitled to.
In his written submissions the husband’s counsel suggests that an order for costs is still justified because:
The husband’s application for leave to cross-appeal was only ever filed in response to the wife’s application for leave to appeal and in any event involved a relatively insignificant amount of the court time involved in the determination of the matter.
However, that submission is not accurate. The husband’s application for leave to appeal was not strictly in response to the wife’s application. It was a stand alone application raising the issue of lack of jurisdiction on the part of the Federal Magistrate to make the orders. In other words, just as the wife was complaining about the orders made by the Federal Magistrate, the husband was doing likewise but for different reasons.
Further, it is not accurate to suggest that the time taken to hear the husband’s application involved “a relatively insignificant amount of the court time”. Indeed, there were two applications of the husband that needed to be determined, the application for an extension of time and the application for leave to cross-appeal, and they took up at least as much of the court time as the wife’s application for leave to appeal.
Thus the husband is indeed fortunate that the wife primarily seeks only an order that each party bear their own costs.
In the circumstances I propose to make no order for costs which will have the effect of each party bearing their own costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 12 September 2011.
Associate:
Date: 12 September 2011
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