STERN & COLLI
[2018] FamCAFC 183
•19 September 2018
FAMILY COURT OF AUSTRALIA
| STERN & COLLI | [2018] FamCAFC 183 |
| FAMILY LAW – APPEAL – COSTS – Where the appeal was discontinued – Where the respondent sought an order for costs relying on the conduct of the appellant and the futility of the appeal – Where that application was opposed – Where there are circumstances justifying an order for costs being made but only between 2 January 2018 and 5 April 2018 – Costs ordered in favour of the respondent with such costs to be assessed in default of agreement. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 22.42(2) |
| APPELLANT: | Mr Stern |
| RESPONDENT: | Ms Colli |
| FILE NUMBER: | MLC | 7373 | of | 2017 |
| APPEAL NUMBER: | SOA | 98 | Of | 2017 |
| DATE DELIVERED: | 19 September 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 10 May 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 December 2017 |
| LOWER COURT MNC: | NA – Transcript only |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Quintessential Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr R Smith |
Order 10 May 2018
The appellant pay the respondent’s costs of and incidental to the appeal incurred between 2 January 2018 and 5 April 2018, such costs to be assessed in default of agreement.
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 Stern & Colli 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 98 of 2017
File Number: MLC 7373 of 2017
| Mr Stern |
Appellant
And
| Ms Colli |
Respondent
REASONS FOR JUDGMENT
Introduction
On 10 May 2018 this Court made an order that Mr Stern (“the father”) pay the costs of Ms Colli (“the mother”) of and incidental to the appeal filed by the father on 18 December 2017, between 2 January 2018 and 5 April 2018, with such costs to be assessed in default of agreement.
Unfortunately, because there was insufficient time on 10 May 2018 to deliver ex tempore reasons, this Court indicated that the reasons for judgment would be delivered at a later date. These are those reasons.
Background
On 5 September 2017 Judge Stewart made interim parenting orders in relation to X (“the child”) born in 2017, and delivered extensive ex tempore reasons in support of those orders. Her Honour also transferred the matter to the Albury Circuit of the Federal Circuit Court of Australia, and adjourned it to 4 December 2017.
On 4 December 2017 the matter came before Judge Hartnett, ostensively to be listed for trial, but the father sought to have her Honour reconsider some of the orders made by Judge Stewart. Her Honour refused to do so, and listed the matter for final hearing on 22 February 2018.
On 18 December 2017 the father filed a Notice of Appeal, effectively against her Honour’s refusal to vary the interim parenting orders made by Judge Stewart.
On 16 January 2018 the mother’s solicitors put the father on notice that in the event of the appeal being unsuccessful they would be seeking costs.
On 5 February 2018 the Appeal Registrar informed the father that the appeal could not be heard and determined prior to the final hearing, and requested to be advised whether he still wished the appeal to proceed.
On 8 February 2018 the father advised the Appeal Registrar that he wished to proceed with the appeal. Apparently the parties had agreed to have the final hearing vacated, and a new date fixed for that hearing. However, as it turned out, that date, 10 April 2018, was still a date by which the appeal could not be heard and determined.
On 21 February 2018 the father filed an application in a case in the Federal Circuit Court of Australia seeking interim orders in similar terms to the orders that he sought in his Notice of Appeal.
On 26 March 2018 this Court conducted a directions hearing, listed the appeal for hearing on 10 May 2018, and made orders to prepare the appeal for that hearing. Importantly, the court again raised with the father the utility of the appeal, given that it could not be heard and determined before the date of the final hearing in the Federal Circuit Court of Australia, namely 10 April 2018.
On 27 March 2018 the father wrote to the mother’s solicitors pointing out that the trial judge had listed the final hearing for 10 April 2018, namely prior to the hearing of the appeal, and in those circumstances offering to settle the appeal on the basis that it be withdrawn, and each party bear their own costs.
On 28 March 2018 the mother’s solicitors replied, rejecting the father’s offer, but offering to resolve the matter on the basis that the appeal be withdrawn, and the father pay the mother’s costs thrown away fixed in the amount of $7,000. It seems that that offer was not taken up.
On 5 April 2018 a consent order was made in the Federal Circuit Court of Australia varying the orders of 5 September 2017, and on an interim basis, increasing the time that the child spends with the father.
On 10 April 2018 the Federal Circuit Court of Australia adjourned the final hearing to 20 June 2018.
On 16 April 2018 the father filed a Notice of Discontinuance of the appeal.
There were unsuccessful attempts to resolve the question of costs between 10 April 2018 and 26 April 2018, and on 8 May 2018 the mother’s solicitors wrote to the father confirming that on 10 May 2018 the mother would be seeking all of her costs thrown away in the appeal.
Discussion
Rule 22.42(2) of the Family Law Rules 2004 (Cth) provides that a party who discontinues an appeal may be ordered to pay the costs of the other party, but whether costs are in fact awarded, and what those costs might be, is still governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”).
That section provides that each party is to bear their own costs (s 117(1)), but where there are circumstances that justify an order for costs, then an order can be made (s 117(2)). Section 117(2A) sets out the factors that the court shall have regard to in considering what order, if any, should be made.
The mother says that there are circumstances here that justify an order for costs being made, and the factors relied on are the conduct of the father (s 117(2A)(c)), and other relevant matters, namely the futility of the appeal (s 117(2A)(g)).
The circumstances are the fact of the appeal being instituted, and then subsequently being discontinued, after the mother had incurred substantial legal costs in opposing the appeal. It is also said that the appeal was futile at all relevant times, yet despite that, the father determined to proceed with the appeal. It was futile because it could not be heard and determined before the dates provided by the Federal Circuit Court of Australia for the final hearing of the matter.
The submission of the father was that no costs should be awarded because he ultimately, on 5 April 2018, obtained an order by consent that gave the child increased time with him.
However, that submission is misconceived. That outcome was achieved through a further application to the Federal Circuit Court of Australia, and not as a result of the appeal process. It is not open to this Court to make any finding as to why that consent order was made, and certainly this Court cannot proceed on the assumption that the appeal had merit, or was not futile because of the outcome in the Federal Circuit Court of Australia.
The fact of the matter is the father filed an appeal on 18 December 2017, and from 2 January 2018 the mother incurred legal costs in opposing the same.
The only relevance of the consent order being made on 5 April 2018, was that from that date the appeal in effect became moot, and needed to be discontinued, which was done on 16 April 2018.
Plainly there are circumstances here that justify an order for costs, but only between 2 January 2018 and 5 April 2018.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 19 September 2018.
Associate:
Date: 19 September 2018
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