West and White (Costs)
[2011] FamCAFC 83
•8 April 2011
FAMILY COURT OF AUSTRALIA
| WEST & WHITE (COSTS) | [2011] FamCAFC 83 |
| FAMILY LAW - COSTS – Where wife wholly successful against husband’s appeal – Where husband with limited means to pay an order for costs |
| Family Law Act 1975 (Cth) s 117 |
| APPELLANT: | Mr West |
| RESPONDENT: | Ms White |
| FILE NUMBER: | (P)NCC | 3 | of | 2007 |
| APPEAL NUMBER: | EA | 127 | of | 2008 |
| DATE DELIVERED: | 8 April 2011 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | By written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 975 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self represented |
| COUNSEL FOR THE RESPONDENT: | Mr Fox |
| SOLICITOR FOR THE RESPONDENT: | Attwaters |
Orders
That the husband pay, by way of contribution to the wife’s costs of and incidental to the appeal to this Court, the sum of $2,000, payment of which shall be by way of 20 equal monthly instalments, each of $100, the first payment to be made on or before 30 April 2011.
IT IS NOTED that publication of this judgment under the pseudonym West & White is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Glanton & Holden.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 127 of 2008
File Number: NCC 3 of 2007
| Mr West |
Appellant
And
| Ms White |
Respondent
REASONS FOR JUDGMENT
On 8 April 2010, for reasons which the Court then delivered, the husband’s appeal against orders made in the Federal Magistrates Court was dismissed. The Court at that time reserved costs and directed that written submissions be filed in support of, and in opposition to, the wife’s application for an order for costs of the appeal.
On 15 April 2010, written submissions were made by Counsel for the wife, who had been “wholly successful” in the appeal proceedings. Counsel for the wife relied upon her success in the appeal, and the husband’s absence of success, in support of her application for costs.
It was submitted in support of the wife’s costs application that her only property of substance arose from her entitlement to an order for settlement of property made on 16 December 2008, pursuant to which the wife was entitled to receive 50 per cent of the net proceeds of sale of the former matrimonial home of the parties. Whilst the selling price of the home was referred to, as was the repayment of legal fees approximating $100,000, the submissions on behalf of the wife did not reveal what, if any, the wife presently had by way of property. The submissions of Counsel for the wife asserted that the wife was substantially dependent upon Centrelink benefits and nominal child support from the husband.
A number of submissions were then made under the heading “Assessment of Costs”. It is unnecessary to refer to those matters. If an order for costs is appropriate to be made, it will be on a party and party basis as agreed or assessed.
The husband was apparently a few days out of time filing his submissions. Sensibly, Counsel for the wife did not oppose the husband having an extension of time within which to file his submissions. Regrettably, for reasons which the Court is at a loss to understand or explain, it has taken until now for the Court to dispose of this extremely simple, but no doubt, at least to the parties, important issue.
As was suggested to the husband at the conclusion of the hearing of his appeal, the only real basis upon which he might avoid liability for costs would be by reference to his financial circumstances, given that his appeal was wholly unsuccessful and always going to be so, notwithstanding that the husband was undoubtedly bona fide in bringing the proceedings at first instance, and appealing against his lack of success in the lower Court.
With respect to the husband, the only matter which could result in the “lenient consideration” sought by him relates to his financial circumstances. The husband stated that he was in receipt of Centrelink Newstart Allowance of $460 per fortnight, a figure which can be accepted having regard to the statement from Centrelink attached to his submission. The husband does not disclose owning any property and no submission subsequently filed on behalf of the wife appears to put that issue in dispute. On the material before this Court, the husband’s assertion that he is “financially in a difficult position” appears likely to be true.
On the other hand, the submissions of the wife’s Counsel do not suggest that she is likely to be materially better off than is the husband. If the husband’s capacity to pay were not problematic, the Court would unhesitatingly award the wife her costs as agreed or assessed in accordance with the appropriate scale.
Making an order for costs against the husband which is likely, when assessed, to be in the order of several thousand dollars, and which is unlikely to be satisfied, however superficially appealing, is probably not ultimately likely to be of any real worth to the wife.
On the other hand, it is unfair that the wife, who has only ever sought to defend the success she achieved in the lower Court, and has been wholly successful in doing so, should be out of pocket in those circumstances.
The Court is of the opinion that an order for costs is appropriate in all the circumstances. The more difficult question is how much those costs should be, and on what terms they should be payable. Realistically, given the amount sought on behalf of the wife, which on its face appears reasonable having regard to the details of its composition, subjecting the wife to the expense of having her costs assessed would be disproportionate to the amount of costs sought. Although it is less than desirable, the Court is disposed in the circumstances to assess as a reasonable contribution to the wife’s costs the sum of $2,000.
Implicit in the husband’s submissions is a request for time to pay. Given that, through no fault of either party really, a year has passed since the husband’s appeal was dismissed, any orders for payment on terms should take account of the fact that the husband has not had to confront his liability over the past 12 months. In the circumstances, the Court proposes ordering that the husband pay to the wife her entitlement to costs of $2,000 by monthly instalments of $100, and the Court will so order.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 8 April 2011.
Associate:
Date: 8 April 2011
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