WINTERS & MCGUIGAN
[2017] FamCAFC 13
•9 February 2017
FAMILY COURT OF AUSTRALIA
| WINTERS & MCGUIGAN | [2017] FamCAFC 13 |
| FAMILY LAW – APPEAL – COSTS – Application for costs of abandoned appeal – Where the appeal was deemed abandoned because the appellant failed to comply with an order for the filing of the appeal books – Where the financial circumstances of the parties are a relevant consideration – Where the parties have property proceedings currently before the court – Costs ordered to be paid from the appellant’s property settlement entitlement. |
| Family Law Act 1975 (Cth) s 117 |
Family Law Rules 2004 (Cth) r 22.43
| APPLICANT: | Mr McGuigan |
| RESPONDENT: | Ms Winters |
| FILE NUMBER: | SYC | 2213 | of | 2013 |
| APPEAL NUMBER: | EA | 93 | of | 2016 |
| DATE DELIVERED: | 9 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Kent JJ |
| HEARING DATE: | By way of written submissions filed by the respondent on 7 December 2016 and the applicant on 23 November 2016 and 20 December 2016. |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 June 2016 |
| LOWER COURT MNC: | [2016] FamCA 421 |
SUBMISSIONS RECEIVED FROM:
| SOLICITOR FOR THE APPLICANT: | Dettmann Longworth Lawyers |
| THE RESPONDENT: | In person |
Orders
That the appellant mother pay the respondent father’s costs of and incidental to the appeal excluding the costs associated with the application for expedition, such costs to be agreed or assessed.
That the costs payable pursuant to the above order be paid from the appellant mother’s entitlement to a property settlement made by way of final order pursuant to s 79 of the Family Law Act 1975 (Cth).
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 Winters & McGuigan 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 93 of 2016
File Number: SYC 2213 of 2013
| Mr McGuigan |
Applicant
and
| Ms Winters |
Respondent
REASONS FOR JUDGMENT
By Application in an Appeal Mr McGuigan (“the father”) seeks costs of abandoned appeal EA 93 of 2016 in which he was the respondent. The appeal was filed by Ms Winters (“the mother”). The application for costs was filed out of time and leave was granted to the father to bring the application.
The mother appealed from parenting orders made by Rees J on 1 June 2016 by a Notice of Appeal filed on 28 June 2016. On that same day the mother also filed an Application in an Appeal seeking expedition of the hearing of that appeal.
The parenting orders of Rees J provided that the two children of the parties live with the father and not spend time with the mother until December 2016. Up until the time of the hearing before her Honour, the children had lived primarily with the mother and, at the time of the hearing, were spending no time with their father.
The application for expedition was heard by Aldridge J on 12 July 2016 and his Honour made orders expediting the appeal. The father opposed the expedition of the appeal.
On 27 July 2016 the mother filed an application seeking an extension of time to file a draft index for the appeal book. The father consented to the extension of time.
On 19 August 2016 Registrar Cameron made procedural orders in which the mother was to file and serve the appeal books by 9 September 2016. The mother failed to do so and consequently the appeal was deemed abandoned.
The father now seeks costs of the abandoned appeal. Initially, the father’s claim for costs included the costs of his unsuccessful opposition to the expedition of the appeal. However, he no longer seeks to include those costs in the order sought against the mother.
The father was one day late in filing his application for costs of the abandoned appeal and so sought an extension of time in which to bring the costs application. That application was heard by Ainslie-Wallace J on 15 November 2016. The mother appeared on the application by telephone because she could not afford to take time off work to appear personally in court.
The extension of time was granted. The parties were directed to file and serve submissions in relation to the father’s application for his costs of the abandoned appeal. It was agreed that following the receipt of those submissions the application would be determined by the Full Court without need for a further court appearance.
In accordance with these orders both the father and mother filed submissions on the costs issue and the father filed submissions in reply.
The father’s written submissions seek an order that the mother pay his costs and disbursements in relation to the appeal (excluding costs in relation to the opposition to the mother’s application for expedition) of $9,844.34. There are property settlement proceedings between the parties presently before the court and the father seeks payment of his costs from the sum received by the mother by way of property settlement. There is $884,304 currently held in the parties’ joint names in a controlled money account being the proceeds of the sale of the parties’ marital home.
The application
Rule 22.43 of the Family Law Rules 2004 (Cth) provides that when an appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all the other parties.
An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”), which provides a general principle that each party to proceedings under the Act shall bear his or her own costs.
However, where the Court is of the view that there are circumstances that justify the making of an order against a party, it must consider the provisions of s 117(2A) which sets out the matters to which the Court must have regard in determining whether to make a costs order.
Relevant to this application are the financial circumstances of each of the parties to the proceedings (s 117(2A)(a)) and the conduct of the parties in relation to the proceedings (s 117(2A)(c)).
The fact of the mother’s failure to comply with the order for the filing of the appeal books is a relevant circumstance.
Both parties also raised their financial circumstances as a matter to which the Court should have regard.
The father deposes that his weekly income is $2,311 and his weekly expenditure is $4,080. Pursuant to the orders of 1 June 2016 the children of the parties live with the father, spending two hours per week with the mother. The father also owns a share in a business and has some superannuation.
The mother asserts that she is employed on a part-time basis, working 30 hours per week. She deposes in her financial statement that her weekly income is $851, and that her weekly expenditure is $1043.
In written submissions in reply to those filed by the mother the father challenges the veracity of the mother’s assertions about her financial circumstances. It is impossible to determine the challenge on the information presently before the Court nor are the father’s asserted challenges sufficient of themselves to cast significant doubt on what the mother says. We thus propose to accept for these purposes both parties’ assertions as to their relative financial circumstances. The mother said that although she “took all necessary steps to move the Appeal forward, with very limited financial resources” she ultimately found the “the financial burden was too substantial”, leading to the appeal being abandoned.
It is against these factual circumstances that the father’s application must be considered.
The decision of Rees J effected a significant change in the lives of the children and the mother’s appeal raised important issues. Although understandable, the decision to not continue the appeal has wrought financial consequences for the father.
It is thus appropriate in the circumstances that an order be made that the mother pay the father’s costs of responding to the appeal to the point at which it was deemed abandoned, excluding any costs incurred or relating to the father’s opposition to the mother’s application for expedition.
The father’s application seeks a determined sum of $9,844.34. Insufficient evidence was adduced to support that claimed amount and we will thus order that the father’s costs be agreed or assessed. Payment of the sum will be deferred until the conclusion of the parties’ property settlement proceedings and will be ordered to be paid by the mother from any sum received by her as part of the property settlement orders.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Kent JJ) delivered on 9 February 2017.
Associate:
Date: 9 February 2017
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