Cummings & Cummings [2010] FamCAFC 247; (13 December 2010)

Last Updated: 17 December 2010

FAMILY COURT OF AUSTRALIA

CUMMINGS & CUMMINGS

[2010] FamCAFC 247

FAMILY LAW - APPEAL – Costs – Costs of a discontinued appeal – Where the parties reached consent – The respondent mother to pay the applicant father the agreed fixed sum – Upon payment of this sum the father’s application is otherwise dismissed.

Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 r 22.42

Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor [2005] FamCA 158; (2005) 33 Fam LR 123

APPELLANT:

Mr Cummings

RESPONDENT:

Mrs Cummings

FILE NUMBER:

BRC

10126

of

2007

APPEAL NUMBER:

NA

102

of

2010

DATE DELIVERED:

13 December 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

13 December 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 August 2010

LOWER COURT MNC:

[2010] FMCAfam 1063

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Evans & Company

SOLICITOR FOR THE RESPONDENT:

Canning Lawyers

ORDERS

(1) That the mother pay the father’s costs of and incidental to the appeal, fixed in the sum of $1,000, with such costs to be paid within 28 days to Evans & Company Family Lawyers Trust Account.
(2) That the father’s application for costs be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cummings & Cummings is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 102 of 2010
File Number: BRC 10126 of 2007

Mr Cummings

Appellant

And

Mrs Cummings

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. An application in an appeal was filed by the father on 8 November 2010, seeking that the mother pay the father’s costs of and incidental to the mother’s discontinued appeal and this application.
2. The father sought that such costs be agreed or assessed, or in the alternative the fixed sum of $2,614, or any other amount the court deems fit.
3. On 9 December 2010 an email was sent to the Registry informing the court that the parties had “settled the application for costs, in accordance with the attached Consent Order”.
4. The minutes of consent, which are signed by each parties solicitors provide:
   1. That the Appellant Mother pay the Respondent Father’s costs of and incidental to the Appeal, fixed in the sum of $1,000, with such costs to be paid within 28 days to Evans & Company Family Lawyers Trust Account.
   2. That the Respondent Father’s Application for costs be otherwise dismissed.
5. Although an agreement has been reached it is necessary for me to provide a brief judgment.
6. In support of his application the father has filed an accompanying affidavit. This document sets out a brief history of the matter and it is of benefit that the contents are summarised.

BACKGROUND

7. The mother filed a notice of appeal on 15 September 2010. The father states in his affidavit that his solicitors received a copy of the notice of appeal by facsimile on 27 September 2010.
8. On same date the mother also served by facsimile an application in a case filed on 20 September 2010, seeking a stay of the orders made by Federal Magistrate Slack on 30 August 2010.
9. Upon receiving the notice of appeal, the father instructed his solicitor to write to the solicitors acting for the mother to seek clarification of certain aspects of the grounds of appeal. This was said to be due to the fact that some grounds appeared outside the “scope” of the Family Law Rules 2004 (“the Rules”).
10. The application in the case was heard by Federal Magistrate Baumann. His Honour dismissed the application and costs were reserved for determination as to liability and quantum to the trial Federal Magistrate.
11. The father states in his affidavit that during the course of the hearing of the application in a case the father’s written submissions said the following:

a. the chances of displacing the discretionary Judgment are ‘nil’.’

2. ‘given the short service, a proper opportunity has not existed for dialogue with the Appeals registrar about likely hearing dates, but It is anticipated, at least by this author, that any appeal in relation to this matter will be unlikely to be heard before the resumption of school in 2011 at the earliest.’

100. ‘That burden is likely to be overcome by the final hearing of the mother being listed, however, the case is not ready to be listed as a result of disclosure and valuation issues remaining outstanding.’

12. On 12 October 2010 the father states that he instructed his solicitor to write to both the mother’s solicitor and the Independent Children’s Lawyer, informing them that he intended filing a request to appear by telephone at the procedural hearing on 27 October 2010.
13. The father on 14 October 2010 is said to have instructed his solicitor to enquire as to why the draft appeal book index had not been received. An email from the mother’s solicitors was received in response, stating that a notice of discontinuance had been filed and that it would be served on the father.
14. On 15 October 2010 notice was received from the Registry informing the father that the mother had filed a notice of discontinuance.
15. The father then instructed his solicitors to draw a schedule of costs incurred by him, up to and including the hearing of this application in an appeal. This request was fulfilled. The total amounts to $2,614.84.
16. The father subsequently filed his application in the appeal on 8 November 2010, seeking costs for the discontinued appeal.

RELEVANT LAW

17. Rule 22.42 of the Rules provide for regulations for the discontinuation of an appeal. The three subsections of r 22.42 provide:

(1) A party may discontinue an appeal, an application for leave to appeal or an application in relation to an appeal by filing a notice of discontinuance.

(2) The party may be ordered to pay the costs of all other parties.

(3) An application for costs must be filed within 28 days after the filing of the notice of discontinuance.

18. The section of the Family Law Act 1975 (Cth) (“the Act”) that deals with costs is s 117. In the circumstances of this case the relevant provisions are contained in s 117(1), (2) and 117(2)A. These subsections provide:

(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

19. The Full Court (Kay, Warnick and Boland JJ) in Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor [2005] FamCA 158; (2005) 33 Fam LR 123 found that there is nothing to prevent any one factor being the sole determinate for an order of costs.

CONCLUSION

20. The husband has filed this application seeking costs for the abandoned appeal in accordance with the time limit imposed by r 22.42(3).
21. Therefore the question now turns to whether the general presumption, that each party bear their own costs is displaced. In considering whether such an order should be made, I give weight to the fact that the father has unnecessarily incurred legal costs.
22. In any event, the parties in this case have consented to orders providing that the mother pay the father the fixed sum of $1,000.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 13 December 2010.

Associate:

Date: 14 December 2010