Wernham & Campagnola - [2012] FamCAFC 137

FAMILY COURT OF AUSTRALIA

WERNHAM & CAMPAGNOLA

[2012] FamCAFC 137

FAMILY LAW ─ APPEAL ─ Appeal against an interlocutory order made by the trial Judge pursuant to s 79A of the Act ─ Whether the trial Judge lacked the jurisdiction to entertain the proceedings under s 79A of the Act ─ Where the Court was not persuaded that because jurisdiction under s 79A is discharged by a single exercise of power, that is, by the making of an order dismissing an application or allowing it, and setting aside or varying previous orders under s 79, that, as a matter of law or logic, the power cannot be exercised after a series of stages or steps, at which findings of fact are made ─ Not established that the trial Judge erred in the exercise of her discretion in any of the ways which the authorities recognise could give rise to appellate intervention ─ Where the Court was not persuaded, having regard to the authorities that the trial Judge’s reasons for judgment were inadequate ─ No error of principle or substantial injustice to the appellant husband demonstrated ─ Application for leave to appeal dismissed.

FAMILY LAW ─ APPEAL ─ Point of law ─ Whether the words in rule 10.13 “decision on any issue” should be read to mean a legal issue ─ Where the rule comfortably accommodates the word “issue” having application to an issue of fact or an issue of law ─ Where the rule does not purport to limit the powers of the Court, or as in this case, the trial Judge to order a discrete hearing on an issue of fact or law, or both ─ Challenge to the application of rule 10.13 rejected.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appellant husband was wholly unsuccessful ─ Where the circumstances within s 117(2A) of the Act justify the making of an order for costs ─ Where the financial circumstances of the appellant husband do not preclude the making of a costs order ─ Where the risks of this application being unsuccessful would have been well-known to those advising the appellant husband, and no doubt communicated to him ─ Husband ordered to pay $7500 by way of costs to the respondent wife, with six months to pay such sum.

Family Law Act 1975 (Cth) ss 79, 79A
Family Law Rules 2004 (Cth) rr 10.13, 10.14

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bennett and Bennett (1991) FLC 92-191
Bruce F McLaren Holdings Pty Ltd and Others v McLaren and Another (2000) FLC 93-030
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
House v The King (1936) 55 CLR 499
Jeeves and Jeeves [2011] FamCAFC 94
Lancer and Lancer [2008] FamCAFC 112
Lovell v Lovell (1950) 81 CLR 513
Oastler and Oastler (1993) FLC 92-390
Patching and Patching (1995) FLC 92-585
Rutherford and Rutherford (1991) FLC 92-255
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud (1989) VR 8

APPELLANT:

Mr Wernham

RESPONDENT:

Ms Campagnola

FILE NUMBER:

SYC

4027

2011

APPEAL NUMBER:

2012

DATE DELIVERED:

22 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace and Ryan JJ

HEARING DATE:

22 August 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 February 2012

LOWER COURT MNC:

[2012] FamCA 66

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kearney

SOLICITOR FOR THE APPELLANT:

Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC with Ms Richards

SOLICITOR FOR THE RESPONDENT:

APA Lawyers

Orders

That the application for leave to appeal is dismissed.
That the husband pay the wife’s costs of and incidental to the application for leave to appeal filed 22 March 2012 as assessed and agreed in the sum of $7,500 within 6 months.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wernham & Campagnola 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 SYDNEY

Appeal Number: EA 34 of 2012

File Number: SYC 4027 of 2011

Mr Wernham

Appellant

And

Ms Campagnola

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

coleman j

This is an application by Mr Wernham (“the husband”), for leave to appeal against an interlocutory order made by Rees J on 24 February 2012 in proceedings between the husband, and Ms Campagnola, (“the wife”), pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).
The trial Judge’s order provided that the proceedings “be listed for hearing before Rees J for determination, in the first instance, of the threshold issue”. Her Honour made a procedural directions order to enable the determination of the “threshold” issue to proceed.
The law governing this application is not in doubt. It was summarised by the Full Court of this Court in Rutherford and Rutherford (1991) FLC 92-255, when, consistent with the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, and consistently with the approach taken by the Federal Court, the Full Court said that the applicant must show an error of principle and/or that the decision appealed from caused the applicant a substantial injustice. Again consistently with the decision of the High Court and the Full Court of the Federal Court of Australia, the Full Court of this Court concluded that it was uncertain whether the test was conjunctive or disjunctive, and that it was not necessary to resolve that particular issue. In my view, for reasons which will emerge, it is also unnecessary in this application to resolve that issue.

background

The background to the proceedings is concisely and, it appears to me, accurately recorded in the written outline of argument of Counsel for the appellant husband which records as follows:
2.The appellant was born [in 1945] (67 years) and [Ms Campagnola] [the respondent] on [in 1951] (61 years) [...].
3.The parties were married [in 1972] and separated on 13 January 1993. The parties were divorced 7 March 1995 [...]. Thus the parties cohabited for some 20 years.
4.There are two children of the marriage, [A] born [in 1979] (32 years) and [M] born [in 1983] (28 years) [...].
5.On 4 April 1995 final orders were made by consent pursuant to section 79 of the Act in the Family Court of Australia [...] [the 1995 Orders]. In December 1994 the parties entered into a Child Support Agreement [...].
6.On 1 July 2011 the appellant commenced proceedings in the Family Court of Australia, Sydney, seeking that the 1995 Orders be varied pursuant to section 79A of the Act [...]. On 24 August 2011 the respondent filed a Response seeking a dismissal of the application and seeking various interlocutory orders [...]. Of particular relevance, the respondent sought an order in the following terms:
“1.That the Court determine whether, pursuant to s 79A of the Family Law Act [the appellant] is entitled to a variation of the Orders made on 4 April 1995 as a separate determination pursuant to rule 10.13 of the Family Law Rules.”
7.On 30 or 31 August 2011 a Registrar ordered the respondent to file a financial statement, an order which the respondent reviewed successfully on 24 October 2011 [...]. On 24 October 2011, His Honour Justice Watts also made orders [...] for the filing of submissions in relation to whether the appellant’s application “will be divided into two separate hearings with the issue of whether there has been a miscarriage of justice being considered in a discrete preliminary hearing”.
8.On 24 February 2012 Rees J delivered reasons for judgment [...] and entered an order [the Order] [...] as follows:
“That the matter be listed for hearing before the Honourable Justice Rees for determination, in the first instance, of the threshold issue”.
9.On 30 March 2012 the Order was stayed pending determination of this appeal [...]. On 2 May 2012 orders were made for the hearing of the application for leave to appeal, and the appeal, at the same time. (Original emphasis)
The husband’s contentions are contained in a closely argued written outline of argument to which I will shortly refer. At the commencement of his oral submissions, Counsel for the husband referred the Court to the wife’s Response to Initiating Application filed on 24 August 2011, which recorded the relief sought by the wife before Rees J. As I understand his submission, Counsel for the husband suggested that the issue determined by the trial Judge was in some way not identical with that which the wife had agitated before her Honour. To the extent that there may be a distinction, for my part, the distinction is one without a difference.
Having read the transcript of the proceedings, and the reasons for judgment of Rees J, I am in no doubt that the issue which was agitated before her Honour was whether, as the wife sought, there should be a determination of whether or not the husband could demonstrate a ground for possible relief pursuant to s 79A of the Act by reference to events in 1995, or events surrounding the making of orders by the Court in 1995, or as the husband contended, that before determining his application, the trial Judge should hear evidence with respect, potentially, to events from approximately 1993 to 2012, or the date of the trial of the proceedings, whenever that was to occur.
In his written outline of argument Counsel for the husband agitated what he submitted was a jurisdictional issue in the following terms:
16.By way of overview, these grounds advance the propositions that:
16.1the form of the Order entered is one that the Court had no jurisdiction to enter; and,
16.2properly construed, section 79A requires a single exercise of discretion and does not permit determination on such a basis in any event.
With all due respect to the industry, and ingenuity of Counsel for the husband, nothing to which he has referred to this Court persuades me that the single exercise of power pursuant to s 79A of the Act precludes the determination of how that power will be exercised occurring by a series of stages or steps. Nothing to which we have been referred persuades me that s 79A does not permit determination of issues other than, as it were, in one step.
There is authority in relation to the exercise of power pursuant to s 79 generally, which is consistent with rejecting the assertion that the single exercise of discretion under s 79 precludes determination of issues necessarily arising in the context of the proceedings in which the discretion will be exercised on any but a single basis. That is unsurprising, and is a conclusion which is well-supported by the authorities to which Counsel for the husband referred in his written outline of argument (see Oastler and Oastler (1993) FLC 92-390, Patching and Patching (1995) FLC 92-585, and Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143).
The crux of the submissions in support of the jurisdictional challenge raised on behalf of the husband, is found in the following paragraphs of Counsel for the husband’s written outline of argument:
20.Put another way, determination of the issue as identified by the respondent necessarily and properly involves the Court in determination of the entirety of the issue to be determined by the Court pursuant to section 79A – being whether a further order is to be made pursuant to section 79. Whilst determination of that issue may involve the Court in making a series of findings, the need to make such findings ought not be confused with the proposition that there is but one issue to properly be determined by the Court: see for example Naylor [2006] FamCA 1232; Buxton [2008] FamCA 179.
21.The Order made is not one permitted by either of section 79A or rule 10.13 in that it appears to contemplate the Court making a series of findings as to various factual matters rather than determining any issue which the Court is required and able to determine separately. The Court’s power to determine an issue is, ultimately, one that may only properly be exercised by entry of an order. The Court has no independent power to simply make findings without proceeding to the entry of an order.
22.As was submitted before Her Honour [...], and which proposition ground 3 contends Her Honour failed to determine, the appellant contends that section 79A requires a single exercise of discretion. Thus the Order could not properly be entered in any event, requiring as it does (at least potentially) the exercise of the discretion pursuant to section 79A on multiple occasions.
With respect to the submissions of Counsel for the husband, the case of Oastler (supra) to which Counsel for the husband referred (see par 23 of his written outline of argument), in my view, does not support the asserted absence of jurisdiction, but rather is a case which goes to the exercise of the power which arises by virtue of the existence of jurisdiction.
In this case, it cannot, in my view be successfully contended that the trial Judge lacked jurisdiction to entertain the proceedings under s 79A of the Act. Her Honour had not purported to exercise the power which the section confers, nor, as her reasons for judgment clearly explain, could she do so without first having made a series of findings of fact. The issues before the trial Judge were in my view correctly identified by her Honour during the course of the trial, and reiterated cogently, and accurately in a series of paragraphs in her reasons for judgment, which recorded:
5.The substance of the husband’s assertions are found at Paragraph 9 of his affidavit sworn 1 July 2011. To understand his assertions, it is necessary to have regard to the affidavit sworn 20 March 1995 by the wife in support of the making of the consent orders which is annexure D to the affidavit of the husband in these proceedings.
6.He asserts that, although she disclosed owning three shares in [A Pty Ltd], her estimate of their value was incorrect. He further asserts that the wife “would have known” that her estimate of value was “not true”. Her estimate of the value of the shares was $3. The Financial Statement for the year ended 30 June 1994, discloses that [A Pty Ltd ] was a bare trustee.
7.He asserts that, although she disclosed that she was a beneficiary of the [O Family Trust, the G Family Trust and the C Trusts], and annexed to her affidavit the financial statements of those trusts as at 30 June 2004, she did not disclose the value of the trusts. In support of that assertion he annexes a copy of a letter from [S Accountants] dated 10 November 1993 valuing a 20 per cent interest in the trusts. The evidence does not establish whether the wife knew of the valuation. However, she was a director and shareholder of [A Pty Ltd].
8.At Paragraph 10 of her affidavit sworn 20 March 1995, the wife gives no evidence of the value of the trusts.
9.The husband asserts that the wife did not disclose that she was a shareholder in [C] Pty Ltd or [D] Pty Ltd although she disclosed that she was a Director of both companies and annexed the financial statements for both companies for the year ended 30 June 1994 to her affidavit. The financial statements for [C Pty Ltd] disclose that the principal activity of the company during the financial year was acting as a trustee company. The net profit was “Nil”. In relation to [D Pty Ltd], its financial statements indicate that its principal activity was “investment”, its current assets were $5,000 in cash and it had a liability of $5,000 being a loan to the [C] trust.
10.Lastly the husband asserts that the wife understated her income from the various entities in the financial year ended 30 June 2004. At Paragraph 10 of her affidavit sworn 20 March 1995, she deposed to having received a payment of $50,000 in the “last financial year”. Since the affidavit was sworn in March 1995, I infer that she was referring to income received in the financial year ended 30 June 1993.
The reference, which Counsel for the husband quite properly included, in paragraph 24 of his written outline of argument, to the decision of the this Court in Patching (supra) provides further support for concluding that the trial Judge had jurisdiction, and power to make the order she did. Indeed, the absence of authority in support of Counsel for the husband’s proposition, which is in my view unsurprising, reinforces the correctness of concluding that her Honour did not, in the approach she took to the application before her, fall into appealable error.
In paragraph 25 of his written outline of argument, Counsel for the husband sought to invite, or perhaps inveigle this Court into revisiting a “line of authority relied upon in support of the availability of separate hearings”. With respect to Counsel, I perceive nothing in the decision of the Full Court in Hickey (supra), or analogies, or reliance upon the Rules, which either warrants this Court revisiting the asserted line of authority, or deviating from it. As the transcript of debate with Counsel for the husband would hopefully confirm, there is potentially some blurring of the distinction between jurisdiction to make orders, and the power with which the Court is invested by virtue of having jurisdiction on the one hand, and the making of finding of facts which inform the exercise of discretion, which is reflected by the orders the Court make in the exercise of its powers.
As I have suggested earlier, in my view, there is no basis for concluding that because jurisdiction under s 79A is discharged by a single exercise of power, that is, by the making of an order dismissing an application or allowing it, and setting aside or varying previous orders under s 79, that, as a matter of law or logic, the power cannot be exercised after a series of stages or steps, at which findings of fact are made.
The second broad area of complaint sought to be agitated by the husband relates to the trial Judge’s exercise of discretion. Albeit the written submissions on behalf of the husband do not necessarily do so, it was sensibly conceded by Counsel for the husband during the course of oral submissions that, as with all challenges to the exercise of discretion, these proposed complaints must overcome substantial obstacles in order to succeed.
Counsel for the husband asserted:
26.The reasons for judgment appear to profer [sic] essentially two reasons for the Order [...] being:
26.1if the appellant “fails to meet the threshold test” the costs of preparing valuation evidence will be thrown away; and,
26.2the use of the Court’s time, the threshold issue being able to be dealt with in one day and the “substantive hearing” taking as least 5 days. (Original emphasis)
It was further submitted, in support of the above contention, that:
27.... there is at least implicit in the reasons the proposition that the Court is able to determine any threshold issue without making findings as to the financial circumstances of the parties at the time of the 1995 Orders and currently – it is submitted that such a proposition is erroneous.
For my part, I respectfully conclude that this is a complaint which is sought to be advanced in reliance upon a false foundation. Neither her Honour’s order, nor the paragraphs of her reasons to which I earlier referred, in which her Honour identified the issues for determination, or anything emerging from the transcript of the proceedings provides support for the factual assumption underpinning this challenge. Had it been otherwise, this complaint may have had some traction, but neither as a matter of fact in this case, nor as a matter of law did, or with respect to her Honour, could the trial Judge have constrained the determination of the threshold issue in the way Counsel for the husband submitted, particularly in paragraph 27 of his written outline of argument.

Further support for that conclusion is gained from paragraph 11 of the trial Judge’s reasons for judgment, at which paragraph her Honour referred to the judgment of the Chief Justice in the decision of Lancer and Lancer [2008] FamCAFC 112. Taken in conjunction with the other matters recorded by her Honour, and the terms of her orders, I cannot accept that her Honour’s orders did, or were intended to constrain the ambit of the threshold hearing in the ways which have been submitted on behalf of the husband. In those circumstances, it is unnecessary to refer to a number of the submissions which follow paragraph 27 of Counsel for the husband’s written outline of argument.
Paragraphs 28, 29, 30, and 31 of Counsel for the husband’s written outline of argument, with respect to him, either inaccurately reflect the effect of the trial Judge’s orders, and the reasons provided by her Honour in support of them, or fail insofar as they assert the failure in the exercise of discretion to have regard to the relevant matters, facts, or circumstances to be substantiated when regard is had to the trial Judge’s reasons.
It was further submitted on behalf of the husband at paragraph 32.2.1 that if the issues to be determined are those apparently contended for by the respondent wife, any determination as to the same will not dispose of the proceedings, whatever the outcome. If I understand it correctly, I cannot agree with that proposition. At the risk of oversimplification, the trial Judge’s orders meant that if, after a hearing in relation to the circumstances surrounding the orders of the Court in 1995, the husband did not satisfy the threshold to which the Chief Justice referred in Lancer (supra), that is to say, failed to demonstrate a ground for possible relief in terms of a relevant provision of s 79A, then the case would be at an end, there being no possible basis for intervention pursuant to s 79A of the Act.
As is well-known, s 79A of the Act is not a provision which is intended to, or operates as an avenue of redress for a party who has, or believes he or she has, in the light of subsequent events, made a bad bargain. That is why, as the authorities reveal, there are cases, particularly where a long period has intervened between the making of the orders which give rise to the s 79A application and the s 79A application, for having a threshold determination (see Oastler (supra), and Patching (supra)). The trial Judge’s order accordingly, and in the interests of both parties, had the potential to facilitate a cheaper and more expeditious determination of the proceedings if the husband could not, by reference to events in, and surrounding the 1995 orders, demonstrate a possible basis for relief under s 79A.
Conversely, and again, as the trial Judge’s reasons make clear, her Honour’s orders facilitate, if, having determined the threshold issue, the husband demonstrated a basis for possible s 79A relief, then the proceedings would continue in relation, potentially, to events spanning the 17 years subsequent to the making of the orders in 1995. In that eventuality, nothing would have been lost by “splitting” the trial. To the extent that the submissions of Counsel for the husband may assert that the orders of the trial Judge had no potential utility, I am thus unable to agree that such was the case.
As I have endeavoured to explain, if the husband cannot satisfy the threshold requirement, the orders have the potential to save both parties very considerable expense. In all probability, it would be the husband who would be saved such expense, because, if he failed to meet the threshold requirement, then his application would fail, and he would be likely to be visited with days and days of costs which could have been averted had the adverse findings of fact been made in relation to the threshold issue, and the power exercised to dismiss his application if those findings supported so doing at that stage.
As Counsel for the husband acknowledged in his oral submissions, the issue determined by the trial Judge involved the exercise of discretion. The authorities to which Counsel for the husband referred clearly recognise that the issue which the trial Judge determined in this case was one involving the exercise of discretion. The principles governing challenges to discretionary judgments are not in doubt, and require no restating in this application. Since House v The King (1936) 55 CLR 499, the High Court has consistently reiterated the tests which govern this proposed appeal. Nothing to which we have been referred satisfies me that the trial Judge erred in the exercise of her discretion in any of the ways which the authorities recognise could give rise to appellate intervention (see Lovell v Lovell (1950) 81 CLR 513, De Winter and De Winter (1979) FLC 90-605, and Gronow v Gronow (1979) 144 CLR 513).
It remains to deal with two remaining complaints agitated on behalf of the husband. The first is articulated at paragraph 32.5 of Counsel for the husband’s written outline of argument. It was there submitted, in essence, that the course adopted by the trial Judge “will certainly involve the Court in findings which will result in the trial judge being prevent [sic] from continuing to hear the matter”. I cannot accept that to be the case, either in fact or in law. The possibility of recusal in the event of the threshold requirement being satisfied is, on the material before this Court, in my view, neither greater nor less than in any other case in which rulings are made during the course of a trial.
Having regard to the issues raised by the husband in relation to the threshold issue in this case, which appear likely to turn significantly if not decisively upon documents which were, or were not produced in 1995, or prior to the making of the orders in 1995, and the accuracy, and adequacy of documents which were produced, the scope for subsequent recusal may be even less than in such cases, but that is not a matter about which I need speculate. The trial Judge will, as in any other case where findings of fact are made, and rulings are given, record findings with respect to the threshold issue that may or may not give rise to a recusal application.
The second of the two remaining challenges to which I refer is the challenge agitated on behalf of the husband in relation to the adequacy of the trial Judge’s reasons. In what way the trial Judge’s reasons were asserted to have been deficient has been but vaguely suggested. That is unsurprising having regard to the ability of Counsel for the husband to agitate his various criticisms of the trial Judge’s reasons for judgment in the preceding 10 pages of his written outline of argument. I have no difficulty discerning the path of reasoning which led her Honour to conclude as she did in relation to the issue before her.
As suggested earlier, nothing to which the Court has been referred persuades me that her Honour misunderstood the issue before her, or failed to articulate the essence of the issue, or to determine it, or to leave the reader of her reasons clearly understanding the bases upon which her Honour did so.
In the course of his oral submissions, Counsel for the husband referred the Court to the very reasons which the trial Judge provided in relation to the issue determined by her Honour. I am not persuaded, having regard to the authorities with respect to adequacy of reasons for judgment, which are not in doubt, and need not be restated in this appeal, that the trial Judge’s reasons for judgment were inadequate (see Sun Alliance Insurance Ltd v Massoud (1989) VR 8, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, and Bennett and Bennett (1991) FLC 92-191).
No error of principle or substantial injustice to the husband having been demonstrated, I would dismiss his application for leave to appeal.
I invite Ryan J to give her reasons.

ryan j

I agree with Coleman J and take the opportunity to address a submission advanced by the husband in relation to the application of rule 10.13 of the Family Law Rules 2004 (Cth).
Rule 10.13 provides:
A party may apply for a decision on any issue, if the decision may:
(a)dispose of all or part of the case;
(b)make a trial unnecessary;
(c)make a trial substantially shorter; or
(d)save substantial costs.
It will be recalled that before the trial Judge, the wife relied on her Response filed 24 August 2011. In relation to procedural orders she sought an order in the following terms:
1.That the Court determine whether, pursuant to s 79A of the Family Law Act, the Applicant Husband is entitled to a variation of the Orders made on 4 April 1995 as a separate determination pursuant to rule 10.13 of the Family Law Rules.
The gravamen of the submission advanced by counsel for the husband is that the words in rule 10.13 “decision on any issue” should be read to mean a legal issue. Thus, to engage rule 10.13, the issue would need to relate to more than a determination of a mere matter of fact.
The word “issue” is not so limited in the rule or by reference to its ordinary meaning. In my view, the rule comfortably accommodates the word “issue” having application to an issue of fact or an issue of law. Support for the correctness of this view is found in rule 10.14(d), which is a rule concerned with the nature of the orders that may be made pursuant to rule 10.13. Rule 10.14(d) clearly indicates that a discrete hearing may be ordered in relation to a matter of fact. In addition, as the note to the rule correctly states, the rule does not purport to limit the powers of the Court, or in this case, the trial Judge to order a discrete hearing on an issue of fact or law, or both. It follows that the argument advanced by the husband in relation to the application of rule 10.13 is rejected.

ainslie-wallace j

I agree with the comments made by Ryan J, and the reasons of Coleman J, and the orders proposed by him that the application should be dismissed.

Coleman J

Costs

In my view, circumstances within s 117(2A) of the Act justify the making of an order for costs. They are essentially that the appellant husband was wholly unsuccessful, and as Senior Counsel for the respondent wife submitted, there were, and remain by virtue of the application for leave to appeal being refused, significant potential benefits for the husband in the proceedings advancing in the way the trial Judge’s order contemplated. The hurdles to success, particularly with respect to an interlocutory order of a procedural nature such as that of the trial Judge, are well-known. Those hurdles are very substantial, as the authorities recognise (see Adam P Brown Male Fashions Pty Ltd (supra), Rutherford (supra), Bruce F McLaren Holdings Pty Ltd and Others v McLaren and Another (2000) FLC 93-030, and Jeeves and Jeeves [2011] FamCAFC 94).
The husband was entitled to, as it were, chance his arm with this application, but in my view, the wife having been wholly successful in resisting that application, she ought not be left unrecompensed in terms of costs. The financial circumstances of the husband would not in my view preclude the making of an order. As is well-known, the stakes are high in s 79A applications. The onus an applicant bears under that section is substantial. The risks of this application being unsuccessful would have been well-known to those advising the husband, and no doubt communicated to him. He elected to exercise his right to challenge her Honour’s decision.
In my view his inferior financial position would not be a matter that should disentitle the wife to a costs order, nor, given that this is a discrete appeal proceeding, would I be sympathetic to deferring enforcement of the costs order until after the proceedings are finally determined. I would, however, be sympathetic, particularly as no strong resistance has very properly been mounted by Senior Counsel for the wife, to the request that the husband have six months to pay the quantum of costs, $7500. This has sensibly not been disputed.
For those reasons, I would make an order that the husband pay $7500 by way of costs to the wife, and allow six months to pay such sum.

Ainslie-Wallace J

I agree.

Ryan J

I agree.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Ryan JJ) delivered on 22 August 2012.

Associate:

Date: 31.08.2012