Whipp and Richards (Costs)
[2012] FamCAFC 91
•27 June 2012
FAMILY COURT OF AUSTRALIA
| WHIPP & RICHARDS (COSTS) | [2012] FamCAFC 91 |
| FAMILY LAW ─ APPEAL ─ COSTS ─ Where the mother’s appeal to this Court was allowed in part ─ Where the father sought an order that the mother be ordered to pay his costs of and incidental to the appeal, on the basis that the father was overwhelmingly successful in resisting the mother’s numerous challenges to the trial Judge’s decision ─ Where the mother sought that the parties each be granted costs certificates with respect to the appeal and the re-trial of the proceedings but that, if the Court declined to award cost certificates, there be no order for costs due to the mother’s “modest” financial circumstances and the “partial success and failure” of her appeal ─ Where only one of the six grounds of appeal pursued by the mother found favour ─ Where the issue with respect to which the mother was successful in her appeal did not involve sufficiently greater complexity than the grounds which were unsuccessful to justify treating it as materially different to the grounds in respect of which the mother failed ─ Where the making of a costs order against a party does not preclude the granting of a costs certificate to that party for the purpose of a new trial ─ Mother ordered to pay 75 per cent of the father’s costs of and incidental to the appeal as agreed or assessed on a party and party basis ─ Each party granted a costs certificate with respect to the new trial. FAMILY LAW ─ APPEAL ─ Re-exercise of discretion ─ Where the history of the proceedings between the parties rendered it almost inevitable that the further evidence upon which the mother might rely, and any evidence of the father in response to it, would be controversial ─ Where this Court is not well placed to hear and determine disputed issues of fact ─ Where the issue with respect to which the mother was successful in her appeal was remitted to a single judge for re-determination. |
| Family Law Act 1975 (Cth) ss 117, 117(2A) Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9 |
| Allesch v Maunz (2000) 203 CLR 172 Ruscoe and Walker (2002) FLC 93-093 |
| APPELLANT: | Ms Whipp |
| RESPONDENT: | Mr Richards |
| FILE NUMBER: | SYC | 4363 | of | 2007 |
| APPEAL NUMBER: | EA | 35 | of | 2011 |
| DATE DELIVERED: | 27 June 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Thackray & Young JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 February 2011 |
| LOWER COURT MNC: | [2011] FamCA 141 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPELLANT: | Diana Perla & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Campton |
| SOLICITOR FOR THE RESPONDENT: | Karras Partners Lawyers |
Orders
That the payment and apportionment of travel costs for the child L pursuant to the orders of Watts J 28 February 2011 be remitted for re-hearing before a single judge of the court.
That the appellant mother pay 75 per cent of the respondent father’s costs of and incidental to the mother’s Notice of Appeal as agreed or assessed on a party and party basis.
That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whipp & Richards (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 SYDNEY |
Appeal Number: EA 35 of 2011
File Number: SYC 4363 of 2007
| Ms Whipp |
Appellant
And
| Mr Richards |
Respondent
REASONS FOR JUDGMENT
COSTS
Upon the Court allowing the appeal of Ms Whipp (“the mother”) against one of the orders made by Watts J in parenting, and other proceedings between herself and Mr Richards (“the father”) on 3 February 2012, directions were made in relation to the consequences of allowing the appeal, and the costs of the appeal. The Court has received submissions from both parties with respect to the two issues to which the Court’s directions referred.
Consequences of allowing the appeal
In submissions on her behalf, the solicitor for the mother sought that the Court remit for re-hearing by a single judge, other than Watts J, the issue of payment and apportionment of travel costs for the child of the parties in accordance with Watts J’s undisturbed orders. A number of reasons were articulated in support of that application. For reasons which will become apparent, we do not need to refer to those submissions in detail.
Counsel for the father proposed that the proceedings be re-determined by this Court. A number of cogent submissions were advanced in support of that proposal.
Whilst there is no doubt that there has been “chronic, intense and toxic litigation between the parties” over a lengthy period, and at great expense, that would not in our view, for reasons which we will shortly state, be persuasive, either in relation to this Court re-exercising the trial Judge’s discretion, or remitting the matter for re-determination by the trial Judge or another judge.
The crux of the submissions of Counsel for the father was that:
1.2… In circumstances where no aspect of the Trial Judge’s findings and objectives were impugned on Appeal, the comments of Justice Watts in paragraph 292 of the Judgment stand. It is both appropriate and proper that the Full Court exercise discretion to implement Justice Watt’s basal finding.
With respect to Counsel for the father, whilst those matters may remove some barriers to this Court being able to properly re-exercise the trial Judge’s discretion, other obstacles remain. The matters relied upon by Counsel for the father would be relevant to, and substantially limit the scope, and costs, of a re-hearing of the issue requiring determination if the matter is remitted to a single judge.
It was further submitted on behalf of the father that:
1.4Both the parents were aware at all times that Justice Watts was to determine how the costs of the child’s international travel was to be apportioned between them at trial. They invited the trial Judge to determine that issue on the material they put in evidence before him. They had every opportunity to put any additional evidence upon which they sought to rely before the Court at that time, including as to their financial circumstances. Each party tested the case of the other party at trial.
With respect to Counsel for the father, as the trial Judge’s reasons (par 292), and the reasons of this Court allowing the challenge to them reveal, the issue is not necessarily as simple as this submission asserts. Without further findings of fact than are presently available to this Court, or the provision of further uncontroversial evidence, this Court would be no better able to determine this issue than the trial Judge was. The unlikelihood of our receiving further uncontroversial evidence in this case is readily apparent.
To the extent that it was submitted on behalf of the father that remitting the proceedings for re-determination would give the mother a further opportunity to “re run” parenting issues, the Court cannot accept that a limited remitter, as it clearly would be, could have that consequence. As is not in doubt, the only issue requiring re-determination is the issue in respect of which the mother was successful in this Court. It is inconceivable that a trial Judge would, in the circumstances of this case, allow a broader inquiry than that issue reasonably required.
The submission on behalf of the father that, if the proceedings are remitted for re-hearing by a single judge the mother would “seek an alternate opportunity for lengthy contested litigation”, also ignores the reality that a trial judge would control the proceedings to avoid any attempt to abuse the Court’s processes, and have costs sanctions available to reinforce that ability.
At least inferentially, Counsel for the father submitted that, if the matter were to be remitted, it ought to be remitted for hearing by a judge other than Watts J.
We are, with great reluctance, not disposed to re-exercise the trial Judge’s discretion. We perceive that the Court could not, at least without first considering such evidence, preclude the wife from relying upon further evidence in relation to the re-exercise of the trial Judge’s discretion having regard to the judgment of the High Court in Allesch v Maunz (2000) 203 CLR 172.
The history of the proceedings between the parties renders it almost inevitable that the further evidence upon which the mother might rely, and any evidence of the father in response to it, would be controversial. This Court is not well placed to hear and determine disputed issues of fact, for reasons which are readily apparent.
If this Court were to re-exercise the trial Judge’s discretion, the only avenue of possible challenge to our decision would be by way of application for special leave to appeal to the High Court. Albeit of minor significance by comparison with the matters to which we have earlier referred, that is another reason for remitting the proceedings for hearing by a single judge.
As Counsel for the father submitted, and the authorities establish (see Ruscoe and Walker (2002) FLC 93-093), albeit probably unnecessary to do so, this Court can, and will, constrain the ambit of the re-hearing of the proceedings which are remitted to a single judge. It is unthinkable that, within the limited context of the issues which will be remitted for re-determination, the mother could be allowed any scope for attempting to revisit the numerous issues which she sought unsuccessfully to challenge in her appeal to this Court. Although we are confident that a trial judge would not permit the mother to endeavour to impermissibly re-agitate any of those issues, we will make orders which avoid any uncertainty in that regard.
There is considerable force in the submission on behalf of the mother that:
1.…
f.Bearing in mind the very adverse and strong credit findings and other criticisms that Watts J made of the appellant mother, if the proceeding was remitted to him, an application for disqualification would be made by the appellant mother and such an application would have almost inevitable prospects of success which would then prolong the litigation and increase the costs for each party.
The submissions, on behalf of the father, properly, do not fully engage with the topic. In all the circumstances, we are not prepared to make any orders in relation to whether Watts J should be recused from hearing the limited issue which the Court will remit for re-hearing.
Whilst it is ultimately a matter for Watts J, it may be that the interests of justice would be better served if a judge who has had no prior dealings with the parties were to undertake the re-hearing of the limited issue which we will remit to a single judge.
The costs of the appeal
The father sought an order that the mother be ordered to pay his costs of and incidental to the appeal, essentially on the basis that the father was overwhelmingly successful in resisting the mother’s numerous challenges to the trial Judge’s decision.
It was submitted on behalf of the father, correctly in our view, that of the seven grounds of appeal initially articulated by her, the mother pursued six grounds, five of which were unsuccessful. In those circumstances, it was submitted on behalf of the father:
7.… that in all the circumstances it would be an affront to the proper administration of justice and offensive to common notions of fairness for an Order to be made other than the Appellant Mother paying the Father’s costs of and incidental to the appeal.
The mother’s solicitor sought that the parties each be granted costs certificates with respect to the appeal and the re-trial of the proceedings but that, if the Court declined to award cost certificates, there be no order for costs.
In opposition to an order for costs, the mother relied upon an affidavit sworn by her solicitor in reliance upon which it was submitted:
5(iii)(c)
The fact that the appellant mother has been put to significant added expense in the conduct of the appeal unnecessarily as a consequence of the position taken by the respondent father as outlined in the Affidavit of Diana Perla is a factor that ought respectfully mitigate against a court order being made in favour of the respondent father.
The mother’s “modest financial circumstances” were sought to be relied upon, as were the “partial success and partial failure of the appeal”.
With respect to the submissions on behalf of the mother, before any consideration of the granting of costs certificates arises, it is necessary to consider the application of the father for costs. Only if the Court is not persuaded to award costs can it consider granting costs certificates with respect to the appeal.
As Counsel for the father submitted:
4.1The making of a Costs Order is governed by S.117(1) of the Family Law Act subject to subsection 2 – that is the existence of circumstances that justify the Court in departing from the position that each party pay their own costs. This statutory mandate applies to Appeals before the Full Court in the same way that it applies to first instance decisions.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
…
With respect to the various submissions of Counsel for the father, the matter of greatest significance within s 117(2A) of the Act raised on his behalf is in our view the reality that, of six grounds agitated on her behalf, the mother succeeded with only one ground. The mother was, as the submissions of Counsel for the father assert in detail, whilst not wholly unsuccessful, overwhelmingly or substantially unsuccessful. To endeavour to analyse the outcome of the appeal in any greater detail is unnecessary, and would be an artificial exercise in any event.
Whilst the Court is obliged to have regard to the “modest” financial circumstances of the mother in this case, so doing would not militate against making an order for costs if the Court were otherwise of the opinion that the circumstances justified doing so.
The obstacles to success of appeals against discretionary judgments are not in doubt and have been long established (see House v The King (1936) 55 CLR 499, Lovell v Lovell (1950) 81 CLR 513, Gronow v Gronow (1979) 144 CLR 513, CDJ v VAJ (1998) 197 CLR 172 and AMS v AIF (1999) 199 CLR 160). Those obstacles suggest that a party in modest financial circumstances should consider carefully whether to file, and prosecute a Notice of Appeal against parenting orders of the kind made by the trial Judge. The mother took the risk that her challenges could fail, thereby placing her at risk of a costs order. Had the mother’s appeal been wholly unsuccessful, we would have had little difficulty in forming the opinion that a costs order was appropriate.
Whilst it is literally correct to suggest that the mother’s appeal met with “partial success and failure”, as is not in doubt, only one of the six grounds pursued by her found favour. A balanced reading of the Court’s Reasons for Judgment in the primary appeal does not suggest that the issue with respect to which the mother was successful involved sufficiently greater complexity than the grounds which were unsuccessful to justify treating it as materially different to the grounds in respect of which the mother failed.
We do not accept that, if accepted in the face of opposition in that regard, the matters referred to in the mother’s solicitor’s affidavit should disincline us to form the opinion that the circumstances justify the making of a costs order. If established, some of those matters may impact upon the quantum of the costs agreed or assessed to be payable.
We are of the opinion that an order for costs should be made against the mother with respect to 75 per cent of the husband’s costs. It will be readily apparent that 75 per cent is somewhat less than 5/6th’s of what the husband’s costs might be. The quantum of costs awarded is, like a costs award itself, discretionary (see Penfold v Penfold (1980) 144 CLR 311). We are firmly of the opinion that, in all the circumstances, an order that the mother pay 75 per cent of the father’s costs is justified.
Properly, there has been no submission that the costs which are appropriate to be awarded should be other than on a party and party basis, and we will accordingly so order. Nothing to which we have been referred suggests that the discretion to award indemnity costs could reasonably have been enlivened.
Whilst a decision of the Court that each party to the appeal bears his or her own costs is a prerequisite to the granting of a costs certificate to an appellant pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), we do not understand that the making of a costs order against a party precludes the granting of a costs certificate to that party pursuant to s 8 of the Costs Act for the purpose of a new trial. The mother should have the benefit of a costs certificate pursuant to s 8 of the Costs Act. So should the father, as his Counsel seeks.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray & Young JJ) delivered on 27 June 2012.
Associate:
Date: 27.06.2012
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