Whisler and Whisler (Costs)
[2010] FamCAFC 24
•17 February 2010
FAMILY COURT OF AUSTRALIA
| WHISLER & WHISLER (COSTS) | [2010] FamCAFC 24 |
| FAMILY LAW - APPEAL – COSTS – Substance of appeal was against parenting orders – Appeal against parenting orders entirely unsuccessful – Appellant to pay fifty percent of the respondent’s costs |
| APPLICANT: | Mr WHISLER |
| RESPONDENT: | Ms WHISLER |
| APPEAL NUMBER: | SA | 53 | of | 2009 |
| FILE NUMBER: | MLC | 9819 | of | 2008 |
| DATE DELIVERED: | 17 February 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 17 February 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 May 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 445 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bowden |
| SOLICITOR FOR THE APPLICANT: | JDB Law |
| COUNSEL FOR THE RESPONDENT: | Ms Hall |
| SOLICITOR FOR THE RESPONDENT: | Nevett Ford |
Orders
That the husband pay fifty percent (50%) of the wife’s costs of and incidental to the appeal, as agreed, and in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Whisler and Whisler (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
APPEAL NUMBER: SA53 of 2009
FILE NUMBER: MLC 9819 of 2008
| Mr WHISLER |
Applicant
And
| Ms WHISLER |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
I don’t intend to make any other order about how that payment is met, because I consider that really involves an exercise of jurisdiction at first instance because I am being asked to, in effect, make an order that affects the carrying into force of property orders. And in my view that is in the nature of a variation or alteration to first instance orders that I shouldn’t make, on an application in relation to the costs of the appeal.
By way of reasons, the success of the husband in setting aside the spousal maintenance order is in my view a very minor success, and even had that point been conceded by the wife long ago, there is no sign that the appeal would therefore have been withdrawn or settled or compromised. The appeal was very much, as it was ultimately presented, an appeal against parenting orders and in that regard has entirely failed.
However, it is that failure and the nature of the proceeding which I regard as the most significant of the factors that bear upon the question of costs and support an order for the, in effect, successful respondent to be reimbursed, at least to some extent. I do not accept, however, that the appeal against the parenting orders was without prospects of success.
In my reasons I have referred to at least two instances where I think some lack of expressed reasons where they might have been expected in the Federal Magistrate’s reasons would have encouraged some hope in the husband of a successful appeal, although ultimately I have not been persuaded. Though that observation and the fairly poor financial circumstances of the husband - mind you, so are those of the wife - lead me, however, to not order payment of the full costs.
In relation to the percentage, I think the success, albeit in a very small part, of the appeal as I described again has some relevance, although it would not amount to a reason for ordering costs in the husband's favour. It acts as, I think to a small degree, a shield in relation to the extent of the costs sought by the wife.
I do not consider that I am in a position to deal with the costs of any of the interim matters that the parties have mentioned - stay proceedings, security application, failures to comply. I am not in a position to judge the rights and wrongs of those applications. And in any event, for reasons that I have given in relation to the order that the husband pay but 50 per cent of the wife’s costs, it might well be that even if there was some blame on the husband’s part, I would decline to make a costs order in respect of them. That will be the order then in relation to costs.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick
Associate:
Date: 1 March 2010
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