Whitcomb and Whitcomb - [2019] FamCAFC 66

FAMILY COURT OF AUSTRALIA

WHITCOMB & WHITCOMB

[2019] FamCAFC 66

FAMILY LAW – APPEAL – Application for costs of two discontinued applications in two appeals – Conduct of the parties – Consideration of relevant matters under s 117 of the Family Law Act 1975 (Cth) – Husband ordered to pay the wife’s costs of the discontinued applications – Costs as assessed on a party/party basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Whitcomb

RESPONDENT:

Ms Whitcomb

FILE NUMBER:

PAC

6361

2017

APPEAL NUMBER:

EAA
EAA

156
20

of
of

2018
2019

DATE DELIVERED:

16 April 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

16 April 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

7 November 2018
30 January 2019

LOWER COURT MNC:

[2018] FCCA 3486
[2019] FCCA 584

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

Glenn R Walters & Co

Orders

That in appeal EA 156 of 2018 Mr Whitcomb pay the wife’s costs of his Application in an Appeal filed on 29 March 2019, in the amount of $500, within two (2) months from the date of these orders.
That in appeal EA 20 of 2019 Mr Whitcomb pay the wife’s costs of his Application in an Appeal filed on 2 April 2019, in the amount of $500, within four (4) months from the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitcomb & Whitcomb has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
SYDNEY

Appeal Number: EAA 156 of 2018; EAA 20 of 2019
File Number: PAC 6361 of 2017

Mr Whitcomb

Applicant

And

Ms Whitcomb

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an application by Ms Whitcomb (“the respondent”) for her costs in relation to two applications in two appeals, filed by Mr Whitcomb (“the applicant”) on 29 March 2019 and 2 April 2019. The two applications sought expedition of two appeals from orders made by Judge Harman in relation to the parties’ son (“the child”), who was born in 2016.
The gravamen of the orders under appeal was to allow the respondent to relocate the child to live in another state. Although a formal order was not made, the effect of the orders is that the respondent’s application was granted. The primary judge having so ordered, an application was made by the applicant for a stay of those orders, pending determination of his appeal. The application for a stay was dismissed, hence the second appeal.
The parties attended a procedural hearing before an appeals registrar on 3 April 2019, when directions were made for the preparation of the appeal. The directions would see the appeal ready to be heard in late June 2019. Given the state of the appeals list, that is, the fact that appeals are now in the position to be brought on quite quickly, it is reasonable to assume the appeals would be heard in either late June or July this year. Reading between the lines, it should be inferred that having been provided with that information, or information along those lines, the applicant decided that it was no longer fruitful to prosecute his applications for expedition. That was a reasonable approach to take.
The question that now arises is whether the respondent to the appeals has incurred costs unnecessarily and whether she should be reimbursed by an order for costs. The notices of discontinuance for the application in both appeals were received yesterday. In response to the notices being received, the Appeals Registry made contact with the parties and sought to clarify, in effect, what should happen with the listing now that the applications had been discontinued. The gist of the advice provided by the Registry was that the parties had to be in agreement that the matter should be removed from the list and absent that agreement, the matters would remain listed and any outstanding issues, relevantly costs, would be dealt with today.
An attempt was made by the solicitor for the respondent to negotiate an agreement with the applicant in relation to the respondent’s costs. Thus, an offer was made at 1:30 pm yesterday to settle the question of costs, on the basis that the applicant would pay a total sum of $440. The applicant did not agree and in response asked for an itemised schedule of costs. The solicitor for the respondent declined and by letter yesterday at 5:25 pm, provided some additional albeit limited information concerning the costs calculation. Furthermore, the offer of $440 was withdrawn as the question of costs had not been resolved and there would now be costs of the appearance today. The applicant was informed that costs would be sought in excess of $1,000.
The costs sought today in relation to the two matters are in the vicinity of $1,600, relevantly $798.46 on one application and $808.48 on the other application.
An application for costs falls to be determined in accordance with s 117 of the Family Law Act (1975) (Cth) (“the Act”). By that provision, parties will bear their own costs to proceedings unless the court is satisfied there are circumstances which justify an order for costs. In deciding what order, if any, should be made, the provisions of s 117(2A) are relevant. I am satisfied in this case that the presentation of an application which was discontinued amounts to justifying circumstances. This is because the respondent in such application has inevitably incurred costs unnecessarily.
Turning then to s 117(2A), the respondent is in receipt of legal aid and I infer that she is a person of limited financial circumstances. The applicant is in paid employment, however is indebted to the extent of about $80,000 in relation to the costs of trial, and now in order to spend time with his son, he incurs not inconsiderable travel costs. His submission that his financial circumstances are also limited, should be accepted. However, it needs to be understood that impecuniosity is not an automatic bar to an application for costs.
The respondent, as mentioned, is in receipt of a grant of legal aid in relation to the appeal. The fact that the tax payer would ultimately meet the respondent’s costs of this application, does not influence my decision about whether or not an order for costs should be made. In my view it does not matter whether it is the tax payer or the respondent who incurs costs unnecessarily, the more relevant point is that they were incurred unnecessarily.
Turning then to the question of whether there is any other fact or circumstance the court should take into account, it does seem to me that had the applicant made proper enquiry, whether of the Registry or sought legal advice, he would have understood that the timeframe for hearing his appeals was going to be quite prompt. Certainly in years gone by, it has taken quite a long time for appeals to be called on for hearing, but innovations in relation to appeals have seen a dramatic reduction in the amount of time between when an appeal is filed, particularly an appeal which involves the refusal of a grant of stay and the hearing has taken place. Those enquiries, if made, would have helped the applicant understand that he did not in the instant case, require an order for expedition in order for the appeal to be heard promptly and in a timeframe that he could actually manage to meet.
In those circumstances, I am satisfied that an order for costs should be made. The question then becomes one of quantum. The solicitor for the respondent provided helpful detail in relation to the quantum of costs sought. This left me with the impression that although the costs had been calculated at the rate provided by the Family Law Rules 2004 (Cth), there is also an element of solicitor/client costs involved in the calculation.
I do not therefore propose to order the payment of the full amount sought and will order that in relation to each of the applications, the applicant pays the sum of $500, which gives the total sum payable of $1,000. The first payment will be made two months from today and the second amount will become payable four months from today. This is longer than what I would ordinarily order, the common order being the payment of the entire sum due within 28 days, but there needs to be some recognition that this will occasion some financial difficulty for the applicant.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 16 April 2019.

Associate:

Date: 31 May 2019