Goldstein & Goyle [2013] FamCAFC 72; (7 May 2013)

Last Updated: 10 May 2013

FAMILY COURT OF AUSTRALIA

GOLDSTEIN & GOYLE (COSTS)

[2013] FamCAFC 72

FAMILY LAW – APPEAL ─ COSTS ─ Where the respondent had filed submissions as to costs but several searches of the Court file failed to reveal any submissions to have been filed on behalf of the appellant in opposition to the respondent’s costs application ─ Where the appeal was wholly unsuccessful ─Where the respondent was put to expense in resisting the appeal and ought not be denied the opportunity to seek to recover that expense ─ Where the Court was of the opinion that the circumstances justified the making of a costs order against the appellant ─ Where the Court ordered that the appellant pay the respondent’s costs of and incidental to the appeal as agreed or assessed on a party and party basis ─ Where as a matter of natural justice, the Court afforded the appellant one last opportunity to make submissions in opposition to the awarding of costs to the respondent and hence stayed the order for costs against the appellant for 28 days

Family Law Act 1975 (Cth)

APPELLANT:

Mr Goldstein

RESPONDENT:

Ms Goyle

FILE NUMBER:

CAC

1761

of

2009

APPEAL NUMBER:

EA

19

of

2012

DATE DELIVERED:

7 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

By way of written submission

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 January 2012

LOWER COURT MNC:

[2012] FMCAfam 26

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self Represented

SOLICITOR FOR THE RESPONDENT:

Kennedy & Cooke Lawyers

ORDERS

(1) The appellant husband pay the respondent wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
(2) The operation of order 1 hereof be stayed for 28 days from the date of order.
(3) That, within the period of 28 days referred to in order 2 hereof, the appellant husband have leave to apply, at his risk as to costs, to a Judge of the Appeal Division of the Court to vary or set aside order 1 hereof.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 19 of 2012

File Number: CAC 1761 of 2009

Mr Goldstein

Appellant

And

Ms Goyle

Respondent

REASONS FOR JUDGMENT

COSTS

1. When the Court delivered judgment in this appeal on 11 September 2012 the successful respondent wife’s costs of the appeal were reserved.
2. Written submissions on behalf of the respondent wife were filed on 9 October 2012. Those submissions were served upon the appellant husband shortly thereafter. Several searches of the Court file have failed to reveal any submissions on behalf of the husband in opposition to the wife’s costs application having been filed.
3. The husband has been contacted by registry staff on a number of occasions in relation to the wife’s costs application. At various times the husband appears to have suggested that he did not intend to file submissions, that he intended to file submissions, and that he had in fact filed submissions. If the husband has filed submissions, they do not appear on the Court record. If they have been filed, such submissions have not been received by the solicitors for the respondent wife.
4. Whilst it would be possible for another judge to determine the costs which were reserved on 11 September 2012, the Court considers the preferable approach in the circumstances to be to proceed to do so in reliance upon the documentation currently on the Court’s file, but, as a matter of natural justice, to afford the appellant husband one last opportunity, at his risk as to costs, to make submissions in opposition to the awarding of costs to the respondent wife.
5. As is apparent from the Court’s reasons for judgment on 11 September 2012, the husband’s appeal was wholly unsuccessful and probably always going to be. It is not in doubt that the basis of the husband’s opposition to the costs of the appeal being awarded against him, is his asserted impecuniosity, details of which are recorded in the Court’s judgment of 11 September 2012.
6. Accepting for the purpose of these reasons that the husband’s financial position may be as difficult as he has previously asserted, or possibly now even worse, the Court would nevertheless be of the opinion that the circumstances justify the making of a costs order against him. The basis of such opinion is that the appeal was wholly unsuccessful and that the respondent was put to expense in resisting the appeal. The wife ought not be denied the opportunity to seek to recover that expense. In the Court’s view costs should be awarded on a party and party basis.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 7 May 2013.

Associate:

Date: 07.05.2013