Gilday & Nugent (Costs) [2009]

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the husband pay the wife’s costs of the appeal in such sum as may be outstanding pursuant to the order for costs made by the Full Court on 16 April 2006.

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

Appeal Number: EAA 126 of 2008
File Number: (P) PAC 3896 of 2008

Appellant

And

Respondent

REASONS FOR JUDGMENT

COSTS

1. On 5 March 2009, when delivering judgment with respect to the husband’s appeal, the Court reserved costs and directed that within 28 days the husband file and serve financial or other evidence in opposition to the wife’s application that he pay the costs of his unsuccessful appeal.
2. On 23 March 2009, the husband filed an affidavit pursuant to the Court’s directions. The great bulk of the diatribe agitated intemperately in such affidavit has no relevance for present purposes. The Court will not dignify the great bulk of the husband’s affidavit by either recounting it or responding to it.
3. What is relevant for present purposes is the husband’s allegation that he is in receipt of a disability pension and has “major debts” (paragraph 16). Also of relevance, albeit not for the reasons the husband appears to assert, are that he is likely to be required to pay a fine and undertake community service as a result of breaches of the motor traffic laws (paragraph 17). Also relevant is the husband’s “medical history” (paragraph 24).
4. Attached to the husband’s affidavit were a number of documents capable of corroborating his allegations of relevance. The “full summary” as at 9 March 2009 provided by an unidentified medical entity, lists a number of medical conditions, some of which could reasonably be expected to adversely impact upon the husband’s capacity for employment.
5. A statement from CentreLink with respect to the husband’s disability support pension payment in recent times and other benefits to which the document refers corroborate the husband’s claim that he is in receipt of a disability support pension the quantum of which at present is $562.10. It can reasonably be presumed that the disability support pension continues to be payable to the husband on the basis that he satisfies the medical criteria which govern such payment.
6. The husband’s ANZ Bank statements suggest that he has a debit balance as at 9 March 2009 of $13 305.51. For reasons which are not immediately apparent, the husband attached the costs orders made by the Full Court in relation to the substantive appeal which it heard and determined.
7. Inferentially (see paragraph 26) of the husband’s affidavit, he asserts that the wife has failed to comply with the costs order made against him by the Full Court in 2006.
8. The husband has also attached to his affidavit an account dated 8 June 2006 from the solicitors who previously, and successfully, represented him in the sum of $9 428.70. Inferentially the husband relies upon that debt, although there is no evidence that the solicitors to whom he is allegedly indebted have, in the period of almost three years since the fees were incurred, pursued the husband with respect to them.
9. The husband’s financial circumstances, combined with his undisguised determination to pay no costs to the wife, suggests that awarding costs against him would be unlikely to result in any such costs being recovered from the husband. In circumstances where it may be that the wife remains liable pursuant to the orders of the Full Court of April 2006 to pay monies to the husband, to allow that prospect to remain in circumstances where the husband’s present appeal has been dismissed for lack of merit would be regrettable.
10. In the circumstances, to award the wife costs equal to the costs awarded against her by the Full Court in April 2006 would, to the extent that any such order has not been complied with, be in the Court’s view an appropriate outcome with respect to costs in the present appeal.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:

Date: 26 March 2009