Starkey and Starkey

[2011] FamCAFC 163

FAMILY COURT OF AUSTRALIA

STARKEY & STARKEY [2011] FamCAFC 163

FAMILY LAW - APPEAL – Costs of discontinued appeal.

Family Law Act 1975 (Cth)

APPELLANT: Ms Starkey

RESPONDENT: Mr Starkey

FILE NUMBER: SYC 2645 of 2009

APPEAL NUMBER: EA 69 of 2011

DATE DELIVERED: 4 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Coleman J

HEARING DATE: 4 August 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 6 May 2011

LOWER COURT MNC: [2011] FMCAfam 738

REPRESENTATION

REPRESENTATION FOR THE APPELLANT: No appearance

SOLICITOR FOR THE APPELLANT: Herbert Weller Solicitor

REPRESENTATION FOR THE RESPONDENT: Mr Dowd, Solicitor

SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

1. That the appellant file a Notice of Discontinuance of the Notice of Appeal filed 2 June 2011 within 7 days.

1. That if Order 1 hereof not be complied with, the Notice of Appeal filed 2 June 2011 shall be dismissed as and from 4 pm on 11 August 2011.

1. That the appellant pay the respondent’s costs of and incidental to the Notice of Appeal filed 2 June 2011 assessed by the Court in the sum of $750.00 PROVIDED THAT payment of such sum is stayed for 28 days or the further order of the Court.

1. That within 21 days the appellant file and serve any submissions in opposition to the making of the order for costs in favour of the respondent referred to in these orders. 

IT IS NOTED that publication of this judgment under the pseudonym Starkey & Starkey is approved 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: EA 69 of 2011
File Number: PAC 2645 of 2009

MS STARKEY

Appellant

And

MR STARKEY

Respondent

REASONS FOR JUDGMENT

1. By Notice of Appeal filed 2 June 2011, Ms Starkey (“the appellant”) appealed against orders made by a Federal Magistrate in parenting proceedings between herself and Mr Starkey (“the respondent”).

2. By letter dated 4 August 2011 – that is, this day – the attorneys for the appellant, by facsimile transmission, advised the Appeals Registrar in the following terms that:

   The above matter is listed this morning at 10 am. 

   I have received instructions to withdraw the appeal. 

   A Notice of Discontinuance will be filed within seven (7) days.

   The Respondent’s solicitor has been informed. 

3. It is not entirely clear when the facsimile transmission was received, but it is quite clear, given the date of the letter, and the reference to the matter being listed this morning at 10 am, that it issued some time subsequent to midnight last night, and in all probability not long ago this morning. 

4. The respondent to the appeal, who lives at R, has attended and his counsel has informed the Court that his attendance, which though not obligatory, was entirely proper and appropriate, has resulted in lost wages which approximate $250, he being a carpenter who is not on wages. To put it bluntly, if he’s not working he’s not earning. Counsel for the respondent informed the Court that the respondent’s taxable income is in the order of $48,000, which broadly speaking is consistent with a $250 daily wage loss. 

5. Counsel for the respondent has sought his professional costs of, and incidental to, the Notice of Appeal including an appearance before the Court this morning, in the sum of $500. On any view of the matter, perusal of the Notice of Appeal, consideration of the grounds of appeal and at least giving preliminary advice to the respondent and attending to the Court this morning, suggest that $500 for professional costs is reasonable and may even be conservative. 

6. The crux of the application for costs on behalf of the respondent is that, having only been advised at 9.30 am this morning that the appellant was discontinuing the appeal, the respondent has reasonably incurred both his loss of wages in being in Sydney to attend Court and the cost of his legal representation before the Court.

7. Prima facie, the matters relied upon by counsel for the respondent would, in the absence of any compelling reasons to the contrary, provide ample foundation for the Court forming the opinion, required by s 117(2) of the Act, that the circumstances of the case justify an order for costs.  However, through no fault of counsel for the respondent, the appellant and her attorney, perhaps naively one might think given the time when the Notice of Discontinuance was first intimated, have no knowledge of this application. 

8. As a matter of natural justice, notwithstanding that it is difficult to see how the appellant could avoid a costs order, the opportunity to seek to do so must be afforded.  The most cost effective way in which to approach the question, in the circumstances of a potential costs order of $750, given the compelling nature of the respondent’s claim for costs, would appear to be to make the order, provided that the appellant have the opportunity to make submissions which, if they are made, and if they are accepted, may result in the Court discharging the order.

9. There are three potential scenarios. The first is that the appellant files no submissions for reasons that one can well imagine, given the quantum of the costs potentially awarded against the appellant, and the compelling nature of the respondent’s claim for costs. 

10. The second scenario is that within 21 days, being the time the Court intends to fix for that purpose, the appellant files submissions which do not persuade the Court to decline to form the requisite opinion, in which case after the 28^th day the order for costs would become operative.

11. The third scenario is that within 21 days, if submissions are made, they may raise matters of substance which the Court considers require the respondent to either file further submissions within seven days by way of response, or if counsel for the respondent considers the matters raised on behalf of the appellant would be likely to disincline the Court to maintain the requisite opinion, file nothing, in which case the Court would on the 28^th day discharge the order for costs. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 4 August 2011.

Associate: 

Date:  12.08.11