Walter & Walter (Costs)
[2016] FamCAFC 103
•10 June 2016
FAMILY COURT OF AUSTRALIA
| WALTER & WALTER (COSTS) | [2016] FamCAFC 103 |
| FAMILY LAW – APPEAL – CHILDREN – COSTS – where the appeal was dismissed – where the appellant was “wholly unsuccessful” – where the circumstances of the case justify the departure from s 117(1) of the Family Law Act1975 (Cth) that each party shall bear his or her own costs – appellant ordered to pay the respondent’s costs of and incidental to the appeal. |
| Family Law Act 1975 (Cth) ss 117(1), 117(2) and 117(2A) |
| Trask & Westlake (Costs) [2015] FamCAFC 214 |
| APPELLANT: | Ms Walter |
| RESPONDENT: | Mr Walter |
| FILE NUMBER: | MLC | 6449 | of | 2010 |
| APPEAL NUMBER: | SOA | 93 | of | 2014 |
| DATE DELIVERED: | 10 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 November 2014 |
| LOWER COURT MNC: | [2014] FCCA 2479 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr North SC and Mr Nehmey |
| SOLICITOR FOR THE APPELLANT: | Taussig Cherrie Fildes Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bartfeld QC |
| SOLICITOR FOR THE RESPONDENT: | Susan Snyder |
Orders
The appellant mother pay the respondent father’s costs of and incidental to the appeal in such amount as agreed in writing between the parties or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walter & Walter (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 93 of 2014
File Number: MLC 6449 of 2010
| Ms Walter |
Appellant
And
| Mr Walter |
Respondent
REASONS FOR JUDGMENT
On 14 April 2016 we made orders dismissing the mother’s appeal against orders made by Judge Burchardt on 24 November 2014. The parties sought to make written submissions in respect of the costs of the appeal and we made directions accordingly.
The respondent father seeks an order that the appellant mother pay his costs of and incidental to the appeal. The mother contends that each party should bear their own costs.
The father relies on three circumstances said to justify departure from s 117(1) of the Family Law Act 1974 (Cth) (“the Act”) which requires that in the absence of justifying circumstances each party shall bear their own costs. By reference to s 117(2A) of the Act the respondent father contends that:
a)he has been “wholly successful” in the proceedings;
b)the mother’s financial circumstances are superior to his; and
c)the mother’s conduct in the lead up to the appeal was superfluous and unnecessary, creating additional costs for the respondent.[1]
[1] Respectively ss 117(2A)(e), (a) and (c) of the Act.
In respect of lack of success on an appeal an earlier Full Court has said:
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…[2]
[2] Trask & Westlake (Costs) [2015] FamCAFC 214, at [4].
The respective submissions of the parties make reference to their financial circumstances.
It is accepted that the appellant mother works as a professional albeit choosing to “mainly” work for no pay.[3] She has not been in remunerative employment since about April 2010.[4] The mother has re-partnered and it is said in the written submissions filed on her behalf that she “supports herself from the capital she received from her property settlement”. The reasons for judgment of Judge Hartnett in property proceedings between the parties[5] reveal that the mother purchased a property in a suburb in Melbourne for slightly more than $3 million in 2011 and, about a year later in 2012, she received cheques totalling $3 million in satisfaction of a deed of gift from her father’s estate. In addition it is said by the father, without demur from the mother, that the mother owns an apartment in Town P, a Land Rover motor vehicle, a Volvo motor vehicle and a Mercedes motor vehicle.
[3] Affidavit of the mother filed 22 July 2014, at paragraph 5.
[4] Affidavit of the mother filed 22 July 2014, at paragraph 4.
[5] Reasons for Judgment of Judge Hartnett, [2012] FMCAfam 434, 6 June 2012, at [22].
The father is unemployed and the mother contends that he has not actually worked in paid employment for a number of years but holds a Bachelor degree and a Graduate Diploma. Otherwise, his assets consist of a motor vehicle worth approximately $27,000 and savings of approximately $340,000 representing the balance of his property settlement. He owes his parents approximately $400,000.
The mother contends that “[b]oth parties have conducted themselves appropriately in relation to the appeal”. It is contended on behalf of the father, that despite earlier filing a summary of argument which was responded to by the father, two days prior to the hearing, the mother filed an amended Notice of Appeal, amending one ground and introducing two additional grounds. At approximately 8.15 pm on the evening prior to the hearing of the appeal counsel for the mother served a supplementary outline that “extensively addressed Ground 3 of the Amended Notice of Appeal, criticising the conduct of the Trial Judge”.[6] However as the father’s submission goes on to contend accurately, at the commencement of oral submissions on the appeal senior counsel for the mother conceded that, in light of the comments made by the appellant’s then senior counsel to the trial judge, ground 3 could not be meaningfully pressed (albeit that it was not formally abandoned).
[6] Written submissions of the father filed 27 July 2015, at paragraph 29.
We are of the opinion that the circumstances of this case justify departure from the position prescribed by s 117(1) of the Act that each party shall bear his or her own costs.[7]
[7] Section 117(2) of the Act.
By considering what order to make we have had regard to the financial circumstances of each of the parties, the conduct of the parties in and about the conduct of the appeal and the fact that in our view, the mother can be seen to be wholly unsuccessful in the appeal.[8]
[8] Section 117(2A) of the Act.
In our judgment an order should be made that the appellant mother pay the respondent father’s costs of and incidental to the appeal, in such amount as might be agreed in writing between the parties or, failing agreement, as shall be assessed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Murphy JJ) delivered on 10 June 2016
Associate:
Date: 10 June 2016
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