Woden and Silver (Costs)

[2016] FamCAFC 260

FAMILY COURT OF AUSTRALIA

WODEN & SILVER (COSTS) [2016] FamCAFC 260

FAMILY LAW – APPLICATION FOR COSTS OF DISCONTINUED APPEAL – Where the wife required leave to file her application – Where leave to file application was granted – Where the wife sought costs consequent upon the husband filing a notice of discontinuance of appeal – Where circumstances favoured orders be made for costs in favour of the wife – Where the husband repeatedly failed to comply with rules and orders in respect of the process of the appeal – Where the issues agitated in the husband’s notice of appeal were issues that had been resolved by the trial judge – Whether the wife’s conduct at first instance operated as a discretionary factor militating against an order for costs being made in her favour – Where the husband was ordered to pay the wife’s costs of the appeal in a fixed sum.  

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Dickson and Dickson (No. 2) (1999) FLC 92-857
Parke & The Estate of the Late A Parke [2016] FamCAFC 248

Woden & Silver (No. 2) [2015] FamCA 1108
Woden & Silver [2016] FamCA 692

APPELLANT: Mr Woden

RESPONDENT: Ms Silver

FILE NUMBER: WOC 367 of 2013

APPEAL NUMBER: EA 13 of 2015

DATE DELIVERED: 6 December 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bryant CJ, Kent & Cronin JJ

HEARING DATE: 6 December 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 15 January 2015

LOWER COURT MNC: [2015] FamCA 6

REPRESENTATION

FOR THE APPELLANT:	In person
COUNSEL FOR THE RESPONDENT:	Ms Bailey

SOLICITOR FOR THE RESPONDENT: Rebecca Bailey & Associates

Orders

1. The applicant wife have leave to file her application for costs in respect of the appeal which has been discontinued by the respondent husband.

2. Within twenty-eight (28) days of the date of these orders the respondent husband pay to the applicant wife the sum of $2,700 in respect of the applicant wife’s costs of and incidental to the appeal and this application for costs.

3. All other applications in an appeal and the orders sought by the respondent husband in his response filed on 20 October 2016 be dismissed.

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 Woden & Silver (Costs) 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 13 of 2015
File Number: WOC 367 of 2013

Mr Woden

Appellant

And

Ms Silver

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

KENT J

1. Before the Court is an application by Ms Silver (“the wife”) for leave to file an application for costs consequent upon Mr Woden (“the husband”) having filed the notice of discontinuance of this appeal on 2 August 2016.

2. By her substantive application for costs, the wife seeks an order pursuant to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) for costs fixed in the sum of $2,758.74, plus the costs of her solicitor’s appearance today.

3. The wife requires leave because r 22.42(3) of the Family Law Rules 2004 (Cth) mandates that an application for costs consequent upon the filing of a notice of discontinuance of an appeal is to be filed within 28 days after the filing of the notice. The wife’s application was filed on 5 September 2016 and thus was six days late.

4. The affidavit evidence of the wife and of her solicitor, unchallenged by the husband in this respect, is that the notice of discontinuance was not served until 8 August 2016, six days after its filing.

5. Whilst the wife does not provide any direct explanation otherwise for her delay, the delay in service of the notice and the relatively short and equivalent period of lateness in the filing of this application, operates in favour of leave being granted.  As the husband, in opposing leave, does not identify any prejudice to him referable to the short period of delay under discussion, in my judgment leave should be granted to the wife to file her application for costs.

Merits of the wife’s claim

1. Whilst the wife’s written submissions contended that costs should follow as a consequence of the husband having filed a notice of discontinuance of this appeal, her solicitor confirmed on the hearing this morning that this contention was not pursued in light of the recent decision of the Full Court in Parke & The Estate of the Late A Parke [2016] FamCAFC 248.

2. The wife primarily relies upon the following s 117(2A) matters to establish “circumstances that justify” the order she seeks, within the meaning of s 117(2), namely:

   a)The parties’ respective financial circumstances (s 117(2A)(a));

   b)The husband’s conduct of the appeal proceedings (s 117(2A)(c));

   c)An offer made by the wife to settle the proceedings (s 117(2A)(f)).

3. On the wife’s affidavit evidence, not challenged by the husband in his affidavit or otherwise, the wife’s financial circumstances are significantly inferior to those of the husband.  Moreover, her evidence details repeated failures by the husband to comply with relevant rules concerning the steps he was, as appellant, required to undertake to progress his appeal; as well as similar kinds of failures by the husband to comply with directions made by Registrars.  The wife incurred legal costs, and consequently greater legal costs than necessary (for example, for an additional directions hearing) directly related to the husband’s defaults.  The wife also deposes to an offer made by her to the husband on 3 March 2015 (following the husband’s failed application for a stay of orders pending appeal), which offer afforded the husband an opportunity to withdraw his appeal without penalty as to costs.  These matters may be accepted as the husband does not dispute them.

4. In the usual case these factors would operate powerfully in favour of the conclusion that justifying circumstances exist for the making of a costs order.  However, there are features of this case concerning the wife’s conduct, emphasised by the husband in his defence of this claim, that fall for consideration.

Relevance of the wife’s conduct at first instance

1. There is authority to support the contention that subsection (g) of s 117(2A), which refers to “such other matters as the court considers relevant” allows a Full Court considering a costs application with respect to an appeal to have regard to, as “relevant”, matters occurring in the course of proceedings at first instance (see Parke & The Estate of the Late A Parke (supra) and Dickson and Dickson (No. 2) (1999) FLC 92-857).

2. The subject appeal concerned the husband’s application for leave to appeal and, if leave be granted, an appeal against order (2) of the interim orders made by Stevenson J on 15 January 2015.  Order (2) was an order for the husband to pay the wife interim spouse maintenance of $200 per week.  It was made in the context of substantive property proceedings between the parties which were then on foot.

3. On 12 February 2015, Stevenson J rejected the husband’s application for a stay of that order pending appeal.  The wife opposed the husband’s application for a stay of the order.

4. On 11 December 2015, on the husband’s application at first instance, Rees J discharged “as at the date to which it stands paid” the interim maintenance order.

5. It is clear from the reasons for judgment of Rees J that the husband’s application was premised on the contention that when the application for interim maintenance was heard by Stevenson J on 12 January 2015, the wife was then living in a de facto relationship which was undisclosed to the husband and undisclosed to the Court. Framed in terms of s 83 of the Act, the husband’s case before Rees J was that the wife had withheld material facts from the Court, or given false evidence to the Court concerning her living circumstances (within the meaning of s 83(2)(c) of the Act) at the time of hearing and determination of her application for interim spouse maintenance.

6. In her reasons for judgment delivered on 11 December 2015[1] Rees J said this:

   19.The husband has established that, since the making of the Order for spouse maintenance, the wife has entered into a stable and continuing de facto relationship. That fact, coupled with the uncertainties associated with Mr [C’s] contribution to expenses which he should share, justifies the variation of the order in accordance with the husband’s application.

   20.The evidence does not allow me to assess whether the Order was paid up to the date on which the de facto relationship commenced. The wife in her affidavit deposed to the issue of Third Party Debt Notices which recovered two amounts. A third Notice has been issued seeking arrears from 14 April 2015 and I therefore assume that the wife concedes that maintenance was paid or recovered up to that date.

   21.In July 2015, the wife had been living with Mr [C] for “seven or eight months”. I cannot say with certainty that this information was withheld from Stevenson J in the hearing conducted on 12 January 2015. However, if the wife and Mr [C] were not living in a de facto relationship on 12 January 2015, it must have commenced immediately thereafter. That fact was withheld from the Court and from the husband until the release of the Family Report on 28 July 2015.

   22.The obligation upon the wife of full and frank disclosure is ongoing throughout the proceedings. It was her obligation to inform the husband and the Court when she entered into a de facto relationship. She did not do so.

   23.In those circumstances it is appropriate that the Order be discharged as at the date to which it stands paid.

   (emphasis added)

   [1] Woden & Silver (No. 2) [2015] FamCA 1108.

7. Those reasons also reflect that for the purpose of that hearing the wife had filed a financial statement sworn 10 September 2015 and her de facto partner had also provided affidavit evidence to the Court.  At [11] and [12] of those reasons Rees J referred to the wife’s evidence as to no expenses being paid by her de facto partner on her behalf and as to the de facto partner making no contribution to the wife’s rental expense.  Rees J recorded at [16] that there was no evidence before her of the ability of the wife’s de facto partner to contribute to the expenses of the family by undertaking paid employment, even on a

   
   

   part-time basis.

8. It is important to note that s 83 of the Act, pursuant to which Rees J discharged the interim maintenance order “as at the date to which it stands paid” contains provision to discharge an order with retrospective operation to such date as the Court considers appropriate. That is, subsection (6) of s 83 provides:

   (6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

9. It is clear, then, that the parties joined issue in the proceedings before Rees J as to any modification to the order and, if the order was to be discharged, any retrospectivity to be applied.  As already noted, it was the husband’s case that the wife was living in a de facto relationship as at the time the subject order for interim spousal maintenance was made and that she “failed” to disclose that.

10. If that case were established, there would be no reason for Rees J not to have discharged the order with retrospective effect from the time of its making.  However, as already noted, Rees J did not make such a finding and the retrospective effect of the discharge order was confined to April 2015. 

11. There was no appeal by either party from the order made by Rees J. 

12. Undoubtedly, in the context of then extant property proceedings between the parties, the wife’s obligation to make full and true disclosure included the requirement that she disclose the existence of her de facto relationship.  So much is noted by Rees J in her Honour’s judgment as well as the recording that the disclosure only came via the family report process in the associated child proceedings then on foot and was thus revealed to the husband for the first time in about July 2015.

13. The point is, though, that the subject issue was the subject of the controversy resolved by the orders of Rees J made on 11 December 2015. Whilst her Honour was critical of the wife’s failure to make proper and timely disclosure of the fact of her de facto relationship, her Honour did not make a finding falling within s 83(2)(c) as to the wife withholding material facts or giving false evidence as at the time the interim spouse maintenance order was made.

14. Further, the same judge, Rees J, heard the trial of the property proceedings between the parties in August 2016 in respect of which her Honour made orders on 22 August 2016.[2]

    [2] Woden & Silver [2016] FamCA 692.

15. In her reasons for judgment in the property proceedings Rees J traces the relevant history of the proceedings and at [14] to [24] (inclusive), [75] to [78] (inclusive) and [132] of those reasons Rees J makes various references relevant to this particular topic.

16. The point is that it was open to the husband to re-agitate issues for the purpose of the final trial surrounding interim maintenance if there were reasons to suppose the history impacted upon the property orders to be made.  However, as Rees J’s reasons for judgment reflect, the husband apparently elected not to provide any affidavit evidence with respect to financial issues nor did he file a financial statement (at [34]) and as Rees J recorded at [70] of those reasons:

    70.The husband did not comply with orders for financial disclosure. He did not file a Financial Statement.

Resolution

1. In these circumstances I do not consider that the wife’s conduct, viewed in the context of the issues determined, and orders made by Rees J on 11 December 2015 and 22 August 2016 respectively, now operates to deny the wife’s application.

2. For the same reasons there is no substance in the husband’s claim via his response that not only should there be no order for costs made in the wife’s favour, an order for costs in his favour ought be made.

3. The husband seeks an order from this Court that the amounts paid by way of interim spousal maintenance should be refunded to him.  That issue has already been conclusively determined by Rees J, expressly by the orders made on 11 December 2015 and by necessary inference the final property orders made on 22 August 2016.

4. The substance of the husband’s appeal was never directed to the wife’s conduct as referred to.  Moreover, the husband pursued his appeal for a long time prior to its discontinuance only on 2 August 2016, and long after the other determinations referred to.

5. The wife should have her costs of the appeal in a rounded off fixed sum of $2,700.  Pursuant to r 19.18(1)(a) the costs should be fixed to avoid these parties engaging in further litigation.  The wife sets out a reasonable basis to enable the costs to be fixed in a sum certain and in the amount proposed.

6. I would make the following orders:

   1.The applicant wife have leave to file her application for costs in respect of the appeal which has been discontinued by the respondent husband.

   2.Within twenty-eight (28) days of the date of these orders the respondent husband pay to the applicant wife the sum of $2,700 in respect of the applicant wife’s costs of and incidental to the appeal and this application for costs.

CRONIN J

1. I agree with the orders proposed by Kent J and the reasons given for those orders.

BRYANT CJ

1. I agree with the reasons of Kent J and the orders as proposed and have nothing further to add.  The formal orders will be as follows:

   1.The applicant wife have leave to file her application for costs in respect of the appeal which has been discontinued by the respondent husband.

   2.Within twenty-eight (28) days of the date of these orders the respondent husband pay to the applicant wife the sum of $2,700 in respect of the applicant wife’s costs of and incidental to the appeal and this application for costs.

   3.All other applications in an appeal and the orders sought by the respondent husband in his response filed on 20 October 2016 be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Kent & Cronin JJ) delivered on 6 December 2016.

Associate: 

Date:  8 December 2016