Shirley and Moore
[2019] FamCAFC 197
•31 October 2019
FAMILY COURT OF AUSTRALIA
| SHIRLEY & MOORE | [2019] FamCAFC 197 |
| FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – DISCONTINUED APPEAL – Where the appeal was discontinued by the appellant – Where the applicant was the respondent to the discontinued appeal – Where the applicant seeks costs of and incidental to the discontinued appeal on an indemnity basis – Where the respondent seeks costs of and incidental to the applicant’s Application in an Appeal – Where the respondent’s financial circumstances and conduct of the appeal justify departure from s 117(1) of the Family Law Act 1975 (Cth) – Where an award of indemnity costs is not appropriate – Where no orders for costs associated with the Application in an Appeal are made – Ordered the respondent pay the applicant’s costs of and incidental to the discontinued appeal in a fixed amount – Where costs are calculated on an ordinary party/party basis – Applications otherwise dismissed. |
| Family Law Act 1975 (Cth) ss 117(1), 117(2A) |
| Bant v Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35 Bhatt & Acharya (Costs) [2017] FamCAFC 71 Caffyn & Caffyn [2018] FamCAFC 259 Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116 Parke & The Estate of The Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248 Ralton & Ralton [2017] FamCAFC 182 Rankin & Rankin (No.3) [2019] FamCAFC 133 SCVG & KLD [2017] FamCAFC 95 Tsay & Lou (No. 2) [2018] FamCAFC 245 Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681 |
| APPLICANT: | Mr Shirley |
| RESPONDENT: | Ms Moore |
| INDEPENDENT CHILDREN’S LAWYER: | DA Family Lawyers |
| FILE NUMBER: | PAC | 3139 | of | 2013 |
| APPEAL NUMBER: | NOA | 108 | of | 2018 |
| DATE DELIVERED: | 31 October 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Kent & Austin JJ |
| HEARING DATE: | 31 October 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 November 2018 |
| LOWER COURT MNC: | [2018] FamCA 988 |
REPRESENTATION
| THE APPLICANT: | In person (via telephone) |
| SOLICITOR FOR THE RESPONDENT: | Fallu McMillan Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | DA Family Lawyers (Appearance excused) |
Orders
(1)The respondent shall pay the applicant’s costs of and incidental to the appeal, fixed in the sum of $2,800.
(2)Otherwise, the Application in an Appeal filed on 2 August 2019 and the Response to an Application in an Appeal filed on 30 August 2019 are dismissed.
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 Shirley & Moore 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 108 of 2018
File Number: PAC 3139 of 2013
| Mr Shirley |
Applicant
And
| Ms Moore |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Austin J
On 5 July 2019, the respondent mother (who was the appellant in the appeal) discontinued the appeal she instituted on 23 November 2018 against final parenting orders made that same day (but amended on 27 November 2018 to correct a minor error) in respect of the parties’ child.
By an Application in an Appeal filed on 2 August 2019, the applicant father (the respondent in the appeal) sought an order that the respondent pay his costs of and incidental to the discontinued appeal on an indemnity basis. By her Response filed on 30 August 2019, the respondent sought orders that his application be dismissed and that he instead pay her costs of resisting his application.
In accordance with procedural orders made by the Regional Appeals Registrar on 12 August 2019, both parties filed evidence and written submissions to support their contradictory positions, though they both belatedly filed costs schedules quantifying their costs. The applicant indicated in his application that he did not want his application determined on the papers in chambers so both were given the opportunity to appear before the Full Court on 31 October 2019 to orally emphasise their submissions. Both parties did so briefly.
Costs of the discontinued appeal
The applicant accepted that parties to proceedings under the Family Law Act 1975 (Cth) (“the Act”) should usually bear their own costs of the proceedings, but he nevertheless sought that the respondent completely indemnify his costs in the abandoned appeal, not merely that she meet his party/party costs.
For the short reasons which follow, the applicant is entitled to his ordinary party/party costs incurred in the abandoned appeal but, as the respondent submitted, there is no proper basis upon which such costs should be ordered on an indemnity basis. No aspect of the submissions made in support of the application engaged “circumstances of an exceptional kind” such as to justify the “very great departure from the normal standard” (see Yunghanns v Yunghanns (2000) FLC 93-029; Kohan and Kohan (1993) FLC 92-340; SCVG & KLD [2017] FamCAFC 95 at [57]; Rankin & Rankin (No.3) [2019] FamCAFC 133 at [8]).
The three reasons advanced by the applicant justifying his entitlement to indemnity costs were: the respondent’s financial circumstances, which he contended were sufficient to enable her to afford his costs; the manner in which she conducted the appeal, which was the factor he accentuated; and her unreasonable rejection of his offer to accept a compromised amount of $4,500 in satisfaction of his costs.
The respondent submitted she is “not in a strong financial position”, which is a fair description of her financial predicament. She is in full-time employment and has no dependents, but incurs expense to spend supervised time with the parties’ child every third week. She lives in her own home, encumbered by mortgaged loan, which liability she deposed entirely off-sets the value of the home. The applicant was doubtful about the accuracy of the respondent’s evidence as to her financial affairs, but any factual dispute desirably should and can be avoided because of uncontroversial basal facts. The respondent was represented in this dispute and has engaged lawyers to represent her in the fresh proceedings she instituted against the respondent contemporaneously with her discontinuance of the appeal, so she is able to muster funds to pay legal costs when necessary. Her financial circumstances are not so constricted as to preclude her payment of a modest costs order.
Turning to the issue of the respondent’s conduct of the appeal, little more need be said other than that the respondent abandoned the appeal after receiving the applicant’s written Summary of Argument and before filing her own written Summary of Argument. Given it was her appeal, the respondent was in breach of the procedural order made by the Appeals Registrar specifying the date by which her Summary of Argument was due to be first filed, but it obviously did not hinder the applicant’s stout and timely defence of the trial judge’s orders. Simply stated, the respondent was put to the unnecessary expense of responding to the appeal, for which he can be compensated in the orthodox way. No aspect of the respondent’s conduct of the appeal was so egregious as to warrant her payment of the respondent’s costs on an indemnity basis.
In an apparent attempt to neutralise the applicant’s submission about the respondent’s conduct, the respondent submitted the applicant’s own conduct induced her to discontinue the appeal and institute fresh first-instance proceedings, but the submission is rejected as irrelevant. While the applicant was apparently convicted of an offence on 20 June 2019, it is not for this Court to contemplate whether facts and circumstances which have developed since the appealed orders were made now justify fresh litigation between the parties over their child. For whatever reasons, the appellant made a voluntary decision to discontinue her appeal, which vindicated the applicant’s defence of it.
When the applicant learned of the respondent’s discontinuance of the appeal, his lawyers promptly wrote to the appellant offering to accept the sum of $4,500 in full satisfaction of his costs of the appeal so as to avoid the need for a contested costs application. The respondent did not initially respond but, when pressed, rejected the offer of compromise, following which the applicant filed his application for costs with the Court. During this costs dispute, the applicant has maintained his entitlement to different sums in satisfaction of his costs, but the material he placed before the Court established his party/party costs of the appeal probably did not exceed $2,800, which proposition he accepted. The respondent conceded a similar amount. In that event, the applicant’s offer of compromise was not competitive and does not bolster his claim for indemnity costs.
Although not raised by the applicant, due to the respondent’s apparent worry over the issue, it is as well to affirm that her discontinuance of the appeal does not equate to it having been wholly unsuccessful and so s 117(2A)(e) of the Act is not presently engaged (see Bant v Clayton (Costs) (2016) 56 Fam LR 31 at [21]-[23]; Parke & The Estate of The Late A Parke (2016) FLC 93-748 at 81,938; Tsay & Lou (No. 2) [2018] FamCAFC 245 at [14]; Caffyn & Caffyn [2018] FamCAFC 259 at [10]-[12]; cf Bhatt & Acharya (Costs) [2017] FamCAFC 71 at [7]-[8]).
The applicant was needlessly put to the expense of defending the trial judge’s orders in the now discontinued appeal and the respondent’s financial circumstances are not so dire as to reasonably excuse her payment of the costs she caused the respondent to bear. In combination, those factors justify departure from the usual rule that parties should bear their own costs of proceedings under the Act (s 117(1)) and an order should be made for the appellant to pay the respondent’s costs of and incidental to the appeal on an ordinary party/party basis, fixed in the sum of $2,800.
The applicant submitted in his written Summary of Argument that the reasons of the Full Court in Ralton & Ralton [2017] FamCAFC 182 were supportive of his application for costs, but he did not elaborate the submission orally. In fact, that case offers the applicant no support at all. Although the unsuccessful appellant was there ordered to pay the respondent’s costs of the appeal, unlike this case, the order for costs was made after the appeal was heard and dismissed on its merits and the costs were not payable on an indemnity basis.
Costs of the costs application
The applicant should not have his costs of the Application in an Appeal. He sought indemnity costs when there was no proper basis to award costs other than on an ordinary party/party basis. His pursuit of an indemnity costs order was as misguided as the respondent’s resistance to any costs order at all.
The respondent sought an order for the applicant to pay her costs of resisting his costs application, which she quantified at $3,403.04. On the face of the application set out in her Response to an Application in an Appeal filed on 30 August 2019, she sought her costs regardless of whether her resistance to the applicant’s application was successful or not. She successfully resisted his application for indemnity costs, but failed to resist an order requiring her to pay the applicant’s costs on an ordinary party/party basis and her opposition to any costs order at all was unreasonable. Otherwise, the respondent made no written or oral submission to support her application for costs of the application.
Proposed orders
In my view, the following orders should be made:
(1)The respondent shall pay the applicant’s costs of and incidental to the appeal, fixed in the sum of $2,800.
(2)Otherwise, the Application in an Appeal filed on 2 August 2019 and the Response to an Application in an Appeal filed on 30 August 2019 are dismissed.
Kent J
I agree with the orders proposed and the reasons of Austin J.
Strickland J
I too agree with the orders proposed and the reasons of Austin J. The orders of the Court will be:
(1)The respondent shall pay the applicant’s costs of and incidental to the appeal, fixed in the sum of $2,800.
(2)Otherwise, the Application in an Appeal filed on 2 August 2019 and the Response to an Application in an Appeal filed on 30 August 2019 are dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Kent & Austin JJ) delivered on 31 October 2019, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 5 November 2019
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