Whipp and Richards (Costs)
[2009] FamCAFC 61
•30 March 2009
FAMILY COURT OF AUSTRALIA
| WHIPP & RICHARDS (COSTS) | [2009] FamCAFC 61 |
| FAMILY LAW – APPEAL – COSTS – Withdrawal of Appeal – Costs sought on an indemnity basis – Withdrawal of appeal does not contain basis for an indemnity costs order – Appellant ordered to pay costs of respondent as agreed and in default of agreement as assessed |
| APPELLANT: | Ms WHIPP |
| RESPONDENT: | Mr RICHARDS |
| FILE NUMBER: | SYC | 4363 | of | 2007 |
| APPEAL NUMBERS: | EA | 141 | of | 2008 |
| EA | 5 | of | 2009 |
| DATE DELIVERED: | 30 March 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | WARNICK, BOLAND, O'RYAN JJ |
| HEARING DATE: | 30 March 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 28 November 2008 12 December 2008 |
| LOWER COURT MNC: | [2008] FamCA 1061 [2009] FamCA 107 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Knox |
| SOLICITOR FOR THE APPELLANT: | Diana Perla & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Manfre |
| SOLICITOR FOR THE RESPONDENT: | Meyer Pidgon |
Orders
That the mother pay the father's costs of and incidental to the appeals as agreed and in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Whipp and Richards (Costs) is approved 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 Numbers: EA 141 of 2008
EA5 of 2009
File Number: SYC4363 of 2007
| Ms WHIPP |
Appellant
And
| Mr RICHARDS |
Respondent
REASONS FOR JUDGMENT
WARNICK J: Two appeals by Ms Whipp were listed in these sittings. They related to parenting orders and ancillary orders made by two judges of the Court. Those appeals have been discontinued. The father seeks costs on an indemnity basis.
It sometimes happens that appeals are withdrawn in circumstances which show that since the institution of the appeals other events have meant that argument of the appeals would be academic. Often in those circumstances no reference can be drawn as to the merit of the appeals. This is not, in my view, one of those circumstances. There is no explanation put forward on behalf of the mother which indicates that pursuit of the appeals would have been academic. One of only two reasons referred to as possibly explaining withdrawal of the appeal, is the failure of proceedings by the mother in America about which we do not know a great deal but we have been told something. But in my view that failure does not constitute the sort of circumstance which apparently renders the appeals academic. The only other reason alluded to, but from which I would not draw any particular inference for myself, was that a change of solicitors for the mother led to some change in advice.
So that, from my view, what presents to the Court are simply appeals instituted but subsequently withdrawn without a reason of the nature I initially described being demonstrated. Of itself, in my view, that is a powerful reason for an order that the mother pay the father's costs. However, contained within that reason I see is no basis for costs on an indemnity basis as sought. I would not draw any of the inferences about motive, the sort of motive that might found costs on an indemnity basis, which Ms Manfre for the father seeks that we draw. The only other relevant matter in my view are the financial circumstances of the parties and a significant impediment in addressing that as a factor is that, as Ms Knox points out, we know nothing of the father's financial circumstances. We know what is put before us on behalf of the mother in an affidavit by her. For myself, what she says of her financial circumstances is deserving of attention but she has some capital, albeit not immediately available. I would say simply that there is nothing in the mother's financial circumstances which I think outweighs the strength of the position arising from the institution and then withdrawal of appeals.
In my view the order should be that the mother pay the father's costs of and incidental to the appeals as agreed in default of agreement as assessed.
BOLAND J: I agree with the reasons of Warnick J and I have nothing further to add. I also would make an order that costs be paid on a party-party basis.
O'RYAN J: I also agree with the reasons of Warnick J and the orders proposed. I have nothing to add.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 21 April 2009
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