T v S

[2015] WASCA 225 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	T -v- S [2015] WASCA 225 (S)

CORAM	: NEWNES JA MURPHY JA MITCHELL J
HEARD	:  ON THE PAPERS
DELIVERED	:  2 FEBRUARY 2016
FILE NO/S	:  CACV 103 of 2015
BETWEEN	: T

Appellant

AND

S

Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram	: DUNCANSON J
Citation	:  [2015] FCWA 50
File No	:  PTW 4345 of 2014
Catchwords:

Family law - Costs of unsuccessful appeal - Costs of unsuccessful application for stay pending appeal to the High Court - Turns on own facts

[2015] WASCA 225 (S)

Legislation:

Family Court Act 1997 (WA), s 211, s 237

Result:

Appellant to pay respondent's costs

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	Bannerman Solicitors
Respondent	:	W G McNally Jones Staff Lawyers

Case(s) referred to in judgment(s):

Hitch v Hitch [2012] FamCAFC 124; (2012) 47 Fam LR 603
KD v GB [2014] WASCA 165 (S)
Mallet v Mallet (1984) 156 CLR 605
Penfold v Penfold (1980) 144 CLR 311
S and T [2015] FCWA 50
S v D [2014] WASCA 224 (S)
T v S [2015] WASCA 225
T v S [No 2] [2015] WASCA 235
Trask v Westlake (Costs) [2015] FamCAFC 214

[2015] WASCA 225 (S)

REASONS OF THE COURT

1. REASONS OF THE COURT: On 16 November 2015 we dismissed the appellant's appeal against parenting orders in respect of the parties' child, J. The circumstances giving rise to that appeal are described in our principal reasons.[1]

   [1] T v S [2015] WASCA 225.

2              On 19 November 2015, Murphy JA and Mitchell J dismissed an

application for a stay of the orders made by the court on 16 November 2015 pending the resolution of an application for special leave to appeal to the High Court.[2]

[2] T v S [No 2] [2015] WASCA 235.

3              The respondent now seeks an order that the appellant pay her costs of

the appeal, including reserved costs,[3] and the application for a stay. The court has made orders for the question of costs to be determined on the papers.

[3] The costs of the appellant's successful application for a stay of the parenting orders made by the Family Court

4              It is common ground that the court's discretion in relation to the costs

of the appeal under s 211(3) of the Family Court Act 1997 (WA) (Act) is governed by s 237 of the Act.[4] Section 237(1) provides that, subject to certain exceptions, each party to proceedings under the Act is to bear the party's own costs.

[4] See S v D [2014] WASCA 224 (S) [5] and cases there cited.

5              The only presently relevant exception to that general rule is found in

s 237(2) of the Act. In its application to the present case, s 237(2) empowers the court to make such order as to costs as it thinks just if it 'is of the opinion that there are circumstances that justify it in doing so'.

6 While s 237(1) expresses a general rule, the general rule must yield

whenever the court finds in a particular case that there are circumstances justifying the making of an order for costs. There is no additional or special onus on an applicant for an order for costs, beyond the requirement for a finding of justifying circumstances as an essential preliminary to the making of a costs order.[5]

[5] Penfold v Penfold (1980) 144 CLR 311, 315; Mallet v Mallet (1984) 156 CLR 605, 631 - 632; KD v GB

7 Section 237(3) identifies a number of matters to which the court

must have regard in considering what order, if any, should be made under
s 237(2) of the Act. Those matters are:

[2015] WASCA 225 (S)

REASONS OF THE COURT

(a)	the financial circumstances of each of the parties to the proceedings; and
(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; and
(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; and
(d)	whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court; and
(e)	whether any party to the proceedings has been wholly unsuccessful in the proceedings; and
(f)	whether a party to the proceedings has made an offer in writing to another 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.

1. We turn to consider those matters.

9              The parties have not sought to adduce any further evidence of these

matters on the costs application. Our consideration of these matters must therefore be based on the evidence adduced in the primary proceedings and any facts which appear from the parties' written submissions to be common ground.

10            The respondent is Indonesian and lives in Indonesia. She cares for

two young dependent children. The primary judge found that the respondent had a lack of funds.[6] The appellant is a student who works part time and lives with his parents. While the evidence of the parties' financial position is limited, we infer that neither can be described as wealthy. The respondent's financial position would appear, on the limited available evidence, to be much more precarious than that of the appellant. It has been recognised that a disparity in financial resources between the parties may favour an award of costs to the party with fewer financial resources.[7]

[6] S and T [2015] FCWA 50 [209].

[7] Hitch v Hitch [2012] FamCAFC 124; (2012) 47 Fam LR 603 [56].

[2015] WASCA 225 (S)

REASONS OF THE COURT

1. It is common ground that the appellant was in receipt of legal aid and the respondent was not.

12            In our view there has been nothing in the conduct of the parties in

relation to the proceedings which counts towards a departure from the
ordinary rule as to costs.

1. The present proceedings were not necessitated by any failure to comply with the orders of a court.

14            The appellant has been wholly unsuccessful in the appeal, and the

respondent wholly successful. The Full Court of the Family Court of Australia has observed in relation to the equivalent s 117 of the Family Law Act 1975 (Cth):[8]

[8] Trask and Westlake (Costs) [2015] FamCAFC 214 [4].

While costs do not 'follow the event' any more on an appeal than they do in any other proceedings (s 117(1)), it is often said that a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the 'fruits of their judgment', can be of great significance.

1. There is no evidence of any relevant offer to settle the proceedings having been made.

2. It is relevant that the genesis of the appeal proceedings was the circumstance that J was sent for a 12-day visit to Australia on 1 July 2014, and the appellant made the unilateral decision to retain him in Australia. That decision required the respondent to participate in these proceedings from Indonesia. The respondent was required to participate in the proceedings in order to maintain her relationship with J, and make submissions in support of the primary judge's conclusion that it was in J's best interests to live in Indonesia. The burden of the litigation on the respondent must have been increased by the requirement for her to participate in the proceedings from Indonesia.

17            Having regard to all of these matters, we are of the view that the

circumstances of the case justify an order that the appellant pay the
respondent's costs of the appeal. The most significant factors are that:

1.	the appellant was wholly unsuccessful;
2.	the proceedings resulted from the appellant's unilateral decision to retain J contrary to the understanding on which J was sent to Australia; and

[2015] WASCA 225 (S)

REASONS OF THE COURT

3.          the respondent has been subject to a special burden in having to litigate in a foreign country without the support of legal aid despite her limited financial resources.

18            It is also common ground between the parties that the costs in the

application for a stay of this court's orders are governed by the court's ordinary discretion. Given the matters canvassed above, the costs of that application should follow the event even if, contrary to the position adopted by the parties, the discretion were governed by s 237 of the Act.

19            For these reasons we will order that the appellant pay the

respondent's costs of the appeal and the application for a stay of this
court's orders, including reserved costs, to be taxed.

of Western Australia were reserved by orders made on 17 July 2015.

[2014] WASCA 165 (S) [9] - [10].