[2014] FamCAFC 161

FAMILY LAW - APPEAL - APPLICATION IN AN APPEAL - COSTS - where the mother seeks costs in the sum of $5,274.50 - where the father opposes the mother's application and seeks an order that each party bear their own costs - where the father has been wholly unsuccessful - where the mother was represented by Legal Aid Queensland and has incurred costs she should not have been required to - costs ordered as sought by the mother.

Family Law Act 1975 (Cth) s 117

[2012] FMCAfam 347

(1) The father pay the costs of the mother of and incidental to the application for leave to appeal fixed in the sum of $5,274.50.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

1. On 28 March 2014 we made orders dismissing the application for leave to appeal filed by the father, and we published our reasons for judgment.
2. On 23 April 2014 the mother filed an application in an appeal seeking an order that the father pay her costs of the application for leave to appeal, in the amount of $5,274.50.
3. On 11 June 2014 the father filed a response opposing the application and seeking an order that each party bear their own costs.
4. The mother filed an affidavit in support of her application as well as providing written submissions. The father has filed two affidavits which also effectively comprise his written submissions.

1. Costs orders are governed by s 117 of the Family Law Act 1975 (Cth) ("the Act"), and that section relevantly provides as follows:

(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 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), (4A), 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.

1. Of the factors the court is to have regard to in considering whether there are circumstances justifying an order for costs, and if so what that order should be, those that emerge as relevant from the respective written submissions of the parties are their financial circumstances (a), the fact that the mother is the recipient of legal aid (b), and the fact that the father was wholly unsuccessful in his application for leave to appeal (e).
2. Prima facie the latter two circumstances justify an order for costs, and thus the question becomes whether the respective financial circumstances of the parties can, or should, affect that result. The relevance of course of the mother receiving legal aid is that, apart from the relatively minor contribution of $610 that the mother has had to make, her costs have been met by Legal Aid Queensland from scarce and finite funds provided by the Federal and State Governments.
3. As to their financial circumstances, the father suggests that he earns very little if anything, and he now has a substantial child support debt.
4. In relation to the father's income, he relies on what he says the Child Support Agency accepted his income to be in the 2013 financial year, namely approximately $16,000 per annum, but he also wants this court to accept an estimate of his income for that same year allegedly prepared by his accountant comprising a loss of $33,418.
5. These figures must be seen in the light of the father having operated a business or businesses, and having a company and trust structure, and we are not prepared to accept them at face value. Indeed, the figures are inconsistent being for the same financial year, and there is no evidence before us to explain this.
6. The father says that he is the "sole carer" for his partner who he claims is "in receipt of a 100% disability pension from Veteran Affairs". However, the only detail the father provided about that is that his partner is not able to do anything "in the business", and the time that he spends in caring for her is to the "detriment of the business".
7. We also note that the father has failed to put any information before this court about "the business", and in particular the value of the business assets, or indeed any detail at all of any of his assets. All we are told is that as a result of the dismissal of his application for leave to appeal he has been left with a child support debt of $100,760.
8. As to his own legal costs, we note that the father was represented by solicitors and counsel both before the primary judge and before us, and he says that he relied on his family to meet his total costs of $40,000.
9. In relation to the financial circumstances of the mother, we are told that she has met and continues to meet the income and assets test requirements of Legal Aid Queensland, and to repeat, that she was required to only contribute $610 to her costs, which total $5,274.50.
10. In these circumstances, we are not persuaded that the respective financial circumstances of the parties, and in particular those of the father, should prevent an order for costs being made, and in the terms sought by the mother. The father brought the application for leave to appeal, and the mother was obliged to obtain legal aid to oppose that application. The father has been wholly unsuccessful, and thus the mother through Legal Aid Queensland has incurred costs that she should not have been required to. The father made the choice to bring the application, and he cannot escape the consequences of it being unsuccessful.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Hogan JJ) delivered on 2 September 2014.