TAYLOR & TAYLOR
[2013] FamCAFC 187
•27 November 2013
FAMILY COURT OF AUSTRALIA
| TAYLOR & TAYLOR | [2013] FamCAFC 187 |
| FAMILY LAW – APPEAL – Discontinued appeal. FAMILY LAW – COSTS – Application for costs relating to discontinued appeal. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Taylor |
| RESPONDENT: | Mr Taylor |
| FILE NUMBER: | SYC | 1163 | of | 2012 |
| APPEAL NUMBER: | EA | 42 | of | 2013 |
| DATE DELIVERED:: | 27 November 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 24 September 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 March 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 176 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT/ WIFE/RESPONDENT: | Mr Grant of Watson & Watson |
| SOLICITOR FOR THE APPLICANT/HUSBAND/RESPONDENT: | Mr Restuccia of Pelosi & Associates |
Orders
Each party is to pay his or her own costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Taylor & Taylor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 42 of 2013
File Number: SYC 1163 of 2012
| Ms Taylor |
Appellant/Wife/Respondent
And
| Mr Taylor |
Applicant/Husband/Respondent
REASONS FOR JUDGMENT
Following a hearing of their property proceedings by Altobelli FM (“the Federal Magistrate”) as he then was, the wife, Ms Taylor filed an appeal against his Honour’s orders. Pursuant to a direction from the Chief Justice, the appeal was listed to be heard by one member of the Full Court of the Family Court. Procedural directions were given and the matter listed for hearing of the appeal. Some days before the scheduled hearing date, the wife discontinued her appeal. The husband seeks an order for costs of the appeal.
The husband’s initial application for costs sought an order for indemnity costs. Sensibly, at the hearing, that application was amended and the husband sought the usual order for costs.
In support of the application the husband through his affidavit and submissions asserts a number of circumstances which it is said warrant an order for costs.
First, the husband relies on an offer of settlement of the appeal made on
24 June 2013 in which the husband offered that the appeal be dismissed with each party to pay his or her own costs. That offer was rejected.
Secondly the husband submits that notwithstanding the procedural directions for the filing of summaries of argument, the wife did not file her summary as directed.
In response to the husband’s application the wife submitted that her financial circumstances were such that it would not be appropriate for her to pay the husband’s costs.
Section 117(1) of the Family Law Act 1975 (Cth) is the relevant provision concerning costs and provides the general rule that subject to s 117(2), s 117AA and s 118 each party to proceedings under the Act shall bear his or her own costs. If there are circumstances that justify it in so doing, the court may make an order for costs pursuant to s 117(2) as the Court considers just. In considering what order, if any, should be made, the court must have regard to the provisions of s 117(2A) of the Act and take them into account, identify and balance the relevant matters.
The husband argued that his financial circumstances are worse than those of the wife, and asserted that he has significant debts. This submission, while objectively accurate, needs some exploration. A significant and largely uncontroversial issue in the primary hearing before the Federal Magistrate was the husband’s excessive gambling. Without the wife’s knowledge the husband gambled using funds drawn against the parties’ credit cards with the result that a significant debt was owed by the parties. In the course of his reasons, the Federal Magistrate took the husband’s conduct into account in determining the interests of the parties and he found that notwithstanding the husband’s assertion that of the debt $183,000 only $128,000 related to his gambling, the whole of the debt was incurred in this way.
In the result, the effect of the Federal Magistrate’s orders was that when the marital property is sold and the parties’ debts paid, each will receive about $352,898. The husband will have a debt of $183,000 to repay from his share.
That having been said, the resultant orders left the husband with responsibility for debt thus incurred. Thus the husband’s claim to being in a poorer financial position to the wife should be seen as a circumstance largely of his own making.
Pursuant to the orders of the Federal Magistrate, the wife is able to purchase the husband’s interest in their former marital home. It was submitted for the husband that once his interest is acquired by the wife and after discharging debts for which he is responsible and having paid his legal costs, his financial circumstances will be “difficult”.
For the wife, it was submitted that her means too were limited and, once acquired, she will have the further burden of the mortgage over the marital home. It seems from the financial document filed with her submissions, that the wife’s income is a government pension or allowance.
Both parties are of limited means. There is no significant disparity which, of itself, would warrant an order for costs.
It was argued by the husband that in discontinuing the appeal, the wife could properly be regarded as having been “wholly unsuccessful” in the appeal. Whether or not a discontinued appeal can be so characterised, it is relevant to the issue of costs as is the rejection of the husband’s offer of settlement.
However in all the circumstances of this matter warrant I will not make an order for costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
27 November 2013.
Associate:
Date: 27 November 2013
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