Dansey and Dansey (No. 2)

[2021] FedCFamC1A 100

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dansey & Dansey (No. 2) [2021] FedCFamC1A 100

Appeal from:

Dansey & Dansey [2021] FamCA 462;

Dansey & Dansey (No. 2) [2021] FamCA 631

Appeal number(s):

EAA 73 of 2021;
NAA 5 of 2021

File number(s):

SYC 3614 of 2021

Judgment of:

TREE, RIETHMULLER & CAMPTON JJ

Date of judgment:

22 December 2021

Catchwords:

FAMILY LAW – APPEAL – COSTS – Where the mother’s appeals were dismissed by the Full Court – Where the mother seeks that there be no order as to costs, or alternatively, costs be ordered as agreed or assessed – Where the father seeks his party/party costs – Financial circumstances – Letter of offer – Wholly unsuccessful – Circumstances justify an order for costs – Mother to pay the father’s costs in a fixed sum – Where no order as to costs of the ICL.

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Number of paragraphs:

26

Date of last submission/s:

10 December 2021

Date of hearing:

By way of written submissions

Place:

In Chambers

Counsel for the Appellant:

Mr Todd

Solicitor for the Appellant:

Burgess Family Law

Counsel for the Respondent:

Dr Barnett

Solicitor for the Respondent:

Pearson Emerson Family Lawyers

Counsel for the Independent Children's Lawyer:

Mr Gould

Solicitor for the Independent Children's Lawyer:

G & D Lawyers

ORDERS

EAA 73 of 2021;
NAA 5 of 2021
SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DANSEY

Appellant

AND:

MR DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	TREE, RIETHMULLER & CAMPTON JJ
DATE OF ORDER:	22 DECEMBER 2021

THE COURT ORDERS THAT:

1.The appellant pay the respondent’s costs in the sum of $15,398.15 within 28 days.

2.The Independent Children’s Lawyer’s application for costs is dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

TREE, RIETHMULLER & CAMPTON JJ:

INTRODUCTION

1. On 19 November 2021, for reasons then delivered, we dismissed an appeal brought by Ms Dansey (“the mother”) from interim parenting orders. At the hearing of the appeal on 3 November 2021, by consent we had dismissed the mother’s appeal from the primary judge’s refusal to stay the interim parenting orders. In accordance with the mother’s request at that hearing, also on 19 November 2021, we made a timetable for the filing and exchange of any materials and submissions as to costs, but otherwise reserved the question of costs.

2. Having now considered the parties’ material filed pursuant to that timetable, for the reasons which follow, there will be an order that the mother pay the costs of Mr Dansey (“the father”) in the sum of $15,398.15 within 28 days.

   PARTIES’ PROPOSALS

3. For her part, the mother primarily sought that there be no order as to costs, or alternatively, that she pay the father’s costs within three months of them being agreed or assessed (mother’s costs submissions filed 30 November 2021, paragraph 1.3). However later in her submissions, she contended that the father’s costs should be fixed at $15,000 (mother’s costs submissions filed 30 November 2021, paragraph 4.2.3) by reference to handwritten comments and calculations made on the father’s costs schedule which, in fact, resulted in his costs being reduced to a total of $15,398.15.

4. For his part, the father primarily sought an order that the mother pay his costs in the sum of $26,300.19, or alternatively, in the sum of $15,398.15. He did not propose any specific timeframe for payment, and we infer that he seeks they be paid within 28 days.

5. The Independent Children’s Lawyer sought an order that the parties equally pay his costs totalling $4,476, or alternatively, that the mother bear those costs entirely.

   SHOULD THE MOTHER PAY THE FATHER’S COSTS

6. Whilst the default position established by s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is that each party should bear their own costs, s 117(2) permits a court to make such costs order as it considers just if there are circumstances which justify doing so. Section 117(2A) then lists considerations which the court must have regard to in determining whether to make a costs order.

7. By reference to such of those matters that are relevant and engaged here, firstly we note that although the father is in a markedly better financial position than the mother, nonetheless she has a share portfolio said to be worth slightly in excess of $120,000 as at 19 October 2021, and then also had over $15,000 in her bank accounts. That said, apart from child support in the sum of $621 per week, her principal source of income is a Centrelink payment of $382 per week.

8. Given these facts, we are unpersuaded that her “financial circumstances might be fairly described as impecunious” (mother’s costs submissions filed 30 November 2021, paragraph 3.7.1.2) although nonetheless there is a clear disparity between the parties’ financial positions.

9. Secondly, the mother abandoned the stay appeal on the day of the hearing, although its futility should have been obvious to her prior to the day of the hearing. That said, the substantive appeal was conducted efficiently, with appropriate concessions being made, which to some slight degree, tells against an order for costs.

10. Thirdly, the mother has been wholly unsuccessful in both appeals.

11. Fourthly, the mother offered to settle the appeal on 19 October 2021 on terms considerably better than ensued from the dismissal of her appeal or, in other words, the outcome was far worse than her offer to settle. However we do not think this speaks in favour of an order for costs, but rather is neutral.

12. We should also note that whilst the mother may genuinely believe that the father poses an unacceptable risk of harm to the children if not professionally supervised, and may continue to press that view at trial, that cannot of itself render her immune to a costs order in an appeal from interim orders. The simple fact is that, being unsatisfied with the outcome at first instance, she initiated the appeal, presumably conscious of the risks of a costs order against her if she failed.

13. Further, whilst the proceedings relate to the parties’ children, that does not in any significant way militate against a costs order in a wholly unsuccessful appeal.

14. Weighing those matters in the balance, we are satisfied that the circumstances justify an order for costs in this matter.

    WHAT FORM SHOULD THE COSTS ORDER AGAINST THE MOTHER TAKE

15. There are four live options as to the form which the costs order might take. Firstly, that the costs should be assessed or agreed; secondly, that they be fixed in the sum of $26,300.19; thirdly, that they be fixed in the sum of $15,398.15, or fourthly, that they be fixed in the sum of $15,000.

16. The first and fourth options can be quickly dismissed. As to the first, that is because the very purpose of taking costs submissions at the hearing of the appeal is to, if at all possible, determine costs issues without the need for additional work to be undertaken and costs incurred. That approach is now supported – indeed mandated – by r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The fourth option is simply the rounding down of what the mother contends is the proper quantum of the father’s party/party costs. No warrant for rounding them down is established.

17. As to the remaining choices, the larger figure is the result of some modest concessions made by the father as to items in his costs schedule which are not properly party/party costs, whereas the smaller figure is the result of the mother’s more stringent critique of that schedule. Particularly she asserts that many items claimed in the schedule are not properly party/party costs, but rather solicitor/client costs, or perhaps indemnity costs.

18. We agree. Indeed the schedule looks like it is a list of all legal work undertaken for the father, but charged at scale. That is not a proper basis for a costs schedule as required by the appeal judicial registrar’s orders of 17 September 2021. Rather, it is only that work which was necessary for the attainment of justice which should be included in a party/party schedule, not work which falls within some other formulation, such as work which a reasonably prudent litigant would undertake, or all work in fact undertaken.

19. In effect, the mother invites us to tax the individual items in the father’s schedule, but that is not the function of the Full Court. However on the other hand, the father does not invite us to fix a figure for his party/party costs for ourselves, other than either his figure or the mother’s.

20. Although it may be rather rough justice, nonetheless given that the father’s figure demonstrably contains items which are not properly party/party costs, beyond those which he is prepared to concede, we will order costs in the sum as calculated by the mother, being $15,398.15.

    WHEN SHOULD COSTS BE PAYABLE BY THE MOTHER

21. The mother wants a “significant period of time” to pay any costs (mother’s costs submissions filed 30 November 2021, paragraph 4.2.3) although earlier, at paragraph 1.3.2 of her costs submissions, she had suggested a period of three months. The father’s submissions were silent as to the time for payment, however he certainly did not concede the mother’s alleged impecuniosity, and hence we infer his position is that the usual period of 28 days should be the time for payment.

22. The simple fact is that even on the mother’s own financial statement of 19 October 2021, she then had sufficient monies in her bank account to pay the amount of the costs order, even without the imminent receipt of proceeds of share sales in the sum of $6,947. This alone dissuades us from extending the time for payment beyond 28 days.

    SHOULD THERE BE ANY COSTS ORDER IN FAVOUR OF THE ICL

23. The Independent Children’s Lawyer sought a costs order against both parties, as that was the policy of Legal Aid. However notwithstanding s 117(3) of the Act, we do not think that, at least in this case, the successful respondent father should bear any part of the costs occasioned solely by the unsuccessful appellant mother.

24. As to whether the mother should then bear those costs, we find it difficult to see how the Independent Children’s Lawyer added anything to what the father did to resist the appeal. In those circumstances, prudence might suggest that the Independent Children’s Lawyer simply adopt the father’s submissions in their Summary of Argument, but not otherwise engage or appear in the appeal.

25. We are not satisfied that there should be any order against the mother in relation to the Independent Children's Lawyer’s costs in any amount.

    OUTCOME

26. There will therefore be an order that the mother pay the father’s costs fixed in the sum of $15,398.15 within 28 days.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Riethmuller & Campton.

Associate:

Dated:       22 December 2021