Thomas & Markson
[2024] FedCFamC1A 180
•15 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Thomas & Markson [2024] FedCFamC1A 180
Appeal from: Markson & Thomas [2024] FCWA 104 Appeal number: NAA 161 of 2024 File number: PTW 916 of 2011 Judgment of: AUSTIN, WILLIAMS & SCHONELL JJ Date of judgment: 15 October 2024 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed by consent – Where the Full Court made orders by consent to reflect the intention of the primary judge pursuant to the slip rule – Where the respondent made an application for costs in circumstances where the appeal could have been avoided by application of the slip rule – Costs order granted in favour of the respondent in a fixed sum Legislation: Family Law Act 1975 (Cth) ss 66L, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 13.23
Cases cited: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557; [1995] FamCA 80
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Number of paragraphs: 32 Date of hearing: 2 October 2024 Place: Heard in Sydney (via video link), delivered in Newcastle Counsel for the Appellant: Mr Sweetman Solicitor for the Appellant: KDK Family Law Counsel for the Respondent: Mr Van Der Merwe Solicitor for the Respondent: Corinne Griffin & Co ORDERS
NAA 161 of 2024
PTW 916 of 2011FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR THOMAS
Appellant
AND: MS MARKSON
Respondent
ORDER MADE BY:
AUSTIN, WILLIAMS & SCHONELL JJ
DATE OF ORDER:
15 OCTOBER 2024
THE COURT ORDERS THAT:
1.Within 45 days, the appellant pay the respondent’s costs of the appeal, fixed in the sum of $10,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thomas & Markson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & SCHONELL JJ
On 31 May 2024, a judge of the Family Court of Western Australia made orders (“the May 2024 orders”) under s 66L of the Family Law Act 1975 (Cth) (“the Act”) for the appellant to pay adult child maintenance for the parties’ two children, Mr B and Ms C, now aged 23 and 21. (“the children”).
Order 1(a) of the May 2024 orders require the appellant to pay adult child maintenance for Mr B, and Orders 1(b) and 2 requires him to pay adult child maintenance for Ms C. The appellant’s liability under both orders terminates upon the children completing their current university degrees.
By a Notice of Appeal filed 28 June 2024, at Part D, the appellant appealed against all of the May 2024 orders, although the appeal was prosecuted only in relation to Orders 1 and 2.
During the hearing of the appeal, it was evident the primary concern of the appellant was that Orders 1 and 2 of the May 2024 orders, did not include a specified end date for his liability to pay adult child maintenance for the children.
Despite the absence of a specific end date in the orders as made, an examination of the reasons at [8], [35], and [73] demonstrates the primary judge was clearly aware Mr B is due to complete his degree at the end of 2024, Ms C is due to complete her degree at the end of 2026, and her intention was for the adult child maintenance orders to cease at those dates.
During the hearing, both counsel ultimately consented to amendment of the orders pursuant to r 10.13(1)(f) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the slip rule”) and agreed the appeal should be dismissed. Orders were subsequently made, to reflect the intention of the primary judge and the agreement reached between counsel.
Therefore, the only outstanding issue for determination is the respondent’s application for the appellant to pay her costs of the appeal fixed at $10,500 in accordance with her Schedule of Costs filed 25 September 2024. The appellant did not seek for the respondent to pay his costs but resisted the respondent’s application for costs.
For the reasons that follow, an order will be made for the appellant to pay the respondent’s costs fixed at $10,500.
Legal principles
Parties to proceedings under the Act generally bear his or her own costs (s 117(1)), although if there are circumstances which justify doing so (s 117(2)), a court may make a costs order. In considering whether to make a costs order, the court must have regard to certain mandated factors (s 117(2A)).
The relevant factors in s 117(2A) must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of a costs order: In the Marriage of I & I (No 2) (1995) 22 Fam LR 557.
No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the judge’s discretion: Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at 80,400. It is not necessary for each of the factors listed in s 117(2A) of the Act to be met for the court to make a costs order; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 33 Fam LR 123 at 124.
The matters set out in s 117(2A) of the Act which are relevant to costs in this matter are as follows.
Financial circumstances (s 117(2A)(a))
The respondent is employed as a part time public servant with modest income and assets, who the primary judge accepted at [30], has shouldered the financial burden of providing for the children, with little assistance from the appellant, subsequent to cessation of the appellant’s child support obligations.
The respondent’s financial circumstances were heavily scrutinised during the hearing before the primary judge. Notwithstanding aggressive cross-examination, which was described by the primary judge as hostile, the primary judge found at [20] the respondent attempted to give her evidence honestly and openly and much of her evidence in both her Financial Statement and trial affidavit was either unchallenged or unsuccessfully challenged.
The primary judge found at [52], the respondent’s income from her employment is approximately $102,000 per annum (or approximately $1,961 per week) and her net assets and superannuation entitlements total $895,000.
The appellant is employed on a full-time basis as a construction professional. At [56] the primary judge summarised the appellant’s financial position, as disclosed in his incomplete Financial Statement filed on the second morning of the hearing. His disclosed income was $322,348 per annum, or $6,199 per week and his necessary expenses were $5,135 per week. His net assets and superannuation entitlements totalled approximately $1,187,050.
The appellant failed to provide proper disclosure of his financial circumstances in the proceeding before the primary judge and failed to make and file a Financial Statement until ordered to do so by the primary judge on the first day of the hearing. At [57] of the reasons, the primary judge referred to omissions and deficiencies in the appellant’s Financial Statement, his failure to provide disclosure of any relevant documents concerning his current financial position and failure to adduce evidence about his family trust and activities undertaken by the trust. Those deficiencies hindered the respondent’s ability to accurately identify the appellant’s true financial position.
At [58] the primary judge found, notwithstanding the highly unsatisfactory nature of the appellant’s evidence, she was satisfied the appellant’s financial position is superior to that of the respondent, and in accordance with his concession, he was financially able to pay the maintenance sought by the respondent.
During the costs submissions of the appeal hearing, the appellant’s counsel again conceded that the appellant’s financial circumstances were superior to those of the respondent.
Conduct of the parties (s 117(2A)(c))
Counsel for the respondent was critical of the appellant’s conduct throughout the appeal proceedings and submitted the appeal was unnecessary, without merit and wholly unsuccessful. The appeal could have been avoided, by application of the slip rule, to rectify the contentious orders in accordance with the intention of the primary judge, which was ultimately agreed to by the appellant.
The ostensible challenges to findings of fact under Ground 4 of the Notice of Appeal, were improper, vague, not particularised and failed to comply with r 13.23(3).
In an attempt to justify the necessity for the appeal, as opposed to simply rectifying the contentious orders via the slip rule, counsel for the appellant argued there was some merit in his submissions challenging the use of the word “proper” to qualify “needs”, in the last sentences of [44] and [49] of the reasons. He submitted the challenge was relevant to Grounds 1(c) and (d), 2(c) and (d), and 4 of the appeal. We have difficulty understanding that submission at all and reject it, because there is no discernible relevance to any of the grounds of appeal.
We agree with and accept the submission of the respondent as to the appellant’s unsatisfactory conduct and the lack of merit in the grounds of appeal.
Any offer to settle the proceedings (s 117(2A)(f))
The appellant relied upon his written offer to settle the appeal, set out in the letter from his lawyers to the respondent’s lawyers dated 3 July 2024, together with a Minute of Proposed Orders attached to the letter. The letter and attachment are Exhibit A in the appeal.
The relevant part of the letter is as follows:
Fortunately, in our view, Her Honour has fallen into appealable error in several respects and rather than pursue that debate at great cost to our respective clients, and interesting only the lawyers , our client proposes to:
1.Remedy the Orders made by Her Honour so that they are not indefinite Orders, whilst not disturbing the quantum of maintenance;
2.Offer a $50,000 cash payment to your client, within 7 days of the making of Orders, in full and final discharge of his obligations pursuant to those Orders.
(As per the original)
If the respondent were to elect option one, the attached Minute of Proposed Orders imposes further conditions including dismissal of the appeal, stringent restrictions regulating the children’s employment, residence, attendance and progress with their current tertiary study, a requirement for the respondent to provide to the appellant the semester results of each child and enabling the appellant to obtain relevant information about the childrens progress directly from the university.
If the respondent were to elect option two, the Minute of Proposed Orders require her to bear her own costs of the primary hearing and the appeal.
Counsel for the appellant attempted to identify the purported benefits and advantages to the respondent, in the event she had accepted the appellant’s offer, in particular the payment of a lump sum of $50,000. Whilst doing so, counsel conceded the appellant had not made any payments pursuant to the May 2024 orders. The submissions did not persuade us there was any apparent benefit to the respondent if she accepted either of the two proposed options.
Counsel for the respondent submitted the offer to resolve the proceedings for $50,000 was less than the appellant’s own calculations of the cumulative amount of the sums ordered to be paid. At paragraph 15 the appellant’s affidavit filed on 23 November 2023, he estimated the respondent’s claim was roughly $67,000, significantly in excess of the lump sum proposed. Additionally, there are extant applications for costs arising from the hearing before the primary judge, where the respondent’s claim for costs is around $35,000. The respondent would be significantly financially disadvantaged had she accepted the lump sum offer of $50,000 and the conditions and restrictions attached to the periodic payments were onerous and unacceptable.
We agree with the submissions of the respondent’s counsel and fail to see how the respondent’s rejection of either of the appellant’s offers could possibly be considered imprudent, when acceptance of the offers would require her to either agree to intrusive conditions, or forgo both periodic payments which accrued between May 2024 and July 2024 and the real possibility of recovery of her costs both of the hearing before the primary judge and the appeal.
Disposition
Having weighed and balanced the relevant considerations, we are satisfied there are circumstances warranting departure from the usual principle that each party bear his or her own costs, and that the appellant should pay the respondent’s costs fixed at $10,500. The appellant did not dispute the quantum of the costs claimed by the respondent.
There were no submissions from either counsel about the timeframe for payment of any costs ordered. Having regard to the disclosed financial circumstances of the appellant, we consider 45 days is an appropriate timeframe.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams and Schonell. Associate:
Dated: 15 October 2024
0
0
2