Adult Guardian and Mother's Parents v B and Child's Representative - [2002] FamCA 874

[2002] FamCA 874

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA Appeal No. NA 27 of 2002
AT BRISBANE File No. BR 4390 of 1990

BETWEEN:

THE ADULT GUARDIAN

First Applicant

- and -

THE MOTHER’S PARENTS

Second Applicants

- and -

B

Respondent

- and -

THE CHILD’S REPRESENTATIVE

REASONS FOR JUDGMENT OF THE FULL COURT
IN RELATION TO TWO APPLICATIONS FOR SECURITY FOR COSTS
(Edited for publication)

BEFORE: Finn, Holden and Dessau JJ.

HEARD: 21 August 2002

JUDGMENT: 6 September 2002

APPEARANCES:

Ms Cassidy of Counsel (instructed by the Office of the Adult Guardian, Level 14, 15 Adelaide Street, BRISBANE QLD 4000) appeared on behalf of the Adult Guardian.

Mr Jarrett of Counsel (instructed by Crowley & Greenhalgh, Solicitors, PO Box 504, KENMORE QLD 4069) appeared on behalf of the Mother’s Parents.

B appeared on his own behalf.

The appearance of the Child’s Representative (whose address for service is Legal Aid Queensland, GPO Box 2449, BRISBANE QLD 4001) was excused by the Court.

APPEAL SUMMARY

MATTER:THE ADULT GUARDIAN and THE MOTHER’S PARENTS and B and THE CHILD’S REPRESENTATIVE

APPEAL NUMBER: NA 27 of 2002 (BR 4390 of 1990)

CORAM: Finn, Holden and Dessau JJ
DATE OF HEARING: 21 August 2002

DATE OF JUDGMENT: 6 September 2002

CATCHWORDS:

APPEALS – APPLICATION FOR SECURITY FOR COSTS – Family Law Act 1975 s 117(2) and s 117(2A) – Luadaka v Luadaka (1998) FLC 92-830 and Jones and Jones (2001) FLC 93-080 applied - consideration of the merits of an appeal - Webster and Another v Lampard (1993) 112 ALR 174 - NEXT FRIEND – Family Law Rules O 15 Division 4 - Watson and Watson (2002) FLC 93-094 - Guardianship and Administration Act 2000 (Qld)

This judgment concerns two applications for the provision by B of security for the costs of an appeal which B has lodged against orders made by Barry J on 29 May 2002.

B describes himself as the fiancé of the mother of a 13 year old child. The mother has a mental disability, and the child has for most of her life resided (pursuant to orders of this Court) with the mother’s parents, although having some contact with the mother. The mother and B have shared a house for at least 5 years.

At the end of 2001, B brought proceedings in the Guardianship and Administration Tribunal seeking that he and the mother’s father be appointed the mother’s guardians for purposes of Queensland law. The Tribunal refused to appoint B as the mother’s guardian and appointed only the mother’s father as her guardian. B has subsequently instituted a number of proceedings in the Supreme Court of Queensland seeking to challenge the Tribunal’s decision. The mother’s parents have been the respondents to those proceedings.

In March 2002, B and the mother filed an application in the Family Court relating to contact between the mother and the child and also seeking that B be appointed next friend of the mother for the purpose of those proceedings. The mother’s parents filed a Response seeking that the Adult Guardian, who is a Queensland statutory officer charged with protecting the interests of disabled adults, be appointed the mother’s next friend.

On 9 April 2002, a Registrar appointed the Adult Guardian as the mother’s next friend, and dismissed B’s application to be so appointed.

B applied to review the Registrar’s decision. That review was heard and dismissed by Barry J on 29 May 2002. In addition to confirming the orders of the Registrar, his Honour also refused an application by B to intervene in the contact proceedings.

On 5 June 2002, B filed a Notice of Appeal against Barry J’s orders. The mother’s parents and the Adult Guardian were named as respondents to the appeal.

On 5 August 2002 and 9 August 2002 respectively, the Adult Guardian and the mother’s parents filed applications seeking that B provide security for their costs in the appeal. Those applications were heard by the Full Court on 21 August 2002.

HELD, granting both applications for security for costs (assessed at $3,000):

It was common ground that B was impecunious and it was likely that he would not be able to meet an order for security for costs. Nor was it likely that any order against him for costs in favour of the applicants would be able to be enforced. (Dillon v Baltic Shipping Co (1991) 102 ALR 482 referred to).

While it is a matter of serious concern that an impecunious appellant may be prevented by the making of an order for the provision of security for the costs of the appeal, from pursuing his or her rights of appeal, however, that concern must be balanced against an equally serious concern for the position of a respondent to the appeal who, in the event that the appeal should fail, and because of the impecuniosity of the appellant, will be left to bear the burden of his or her own costs of successfully resisting the appeal. In these circumstances, the issue of the merits (or otherwise) of the appeal must assume particular significance. (Webster and Another v Lampard (1993) 112 ALR 174 applied).

In the present case, it was difficult to see that the appeal against the decision to appoint the Adult Guardian – an independent, statutory officer charged with protecting the interests of disabled persons - as the next friend for the mother, or the decision to refuse leave to B – a stranger in blood - to intervene in the contact proceedings between the mother and her parents, would have any great likelihood of success.

Whatever responsibility B may consider he has personally for the mother and the child, from an objective viewpoint, his claims to be involved in their affairs, either as next friend or intervener, might be said to be somewhat remote (given that he is not a blood relative of the child, and that he apparently does not claim to be in the position of a step-parent to the child or otherwise to have had the care of the child). Having regard to the history of the litigation in this Court and in the Supreme Court, and also to the independent nature of the Adult Guardian, B’s claims might be said to border on the vexatious.

So far as the Adult Guardian’s application was concerned, it was a relevant matter that the Adult Guardian is funded out of the public purse.

B ordered to pay the costs of the two applications, assessed at $1,000 in the case of the Adult Guardian and $2,000 in the case of the mother’s parents.

REPORTABLE.

Introduction

This judgment concerns two applications for the provision by B of security for the costs of an appeal which B has lodged against orders made by Barry J on 29 May 2002. The two applications are:
· an application (filed 5 August 2002) by a Queensland statutory officer known as the Adult Guardian for an order in the following terms:
That unless [B] within one (1) month of the date of this order provides security for the Adult Guardian’s Next Friend’s costs of appeal in the sum of $5,000.00 in a form acceptable to the Registry Manager of the Brisbane Registry of the Court, the appeal stand dismissed.

· an application (filed 9 August 2002) by [the mother’s parents] for an order in the following terms:
That unless the Respondent [B] pays security for the costs of Appeal of the Applicants [the mother’s parents] in the sum of Five thousand dollars ($5,000.00) in a form acceptable to the Registry Manager of the Brisbane Registry of the Court, within thirty (30) days of the date of this Order, the Appeal be dismissed.

We propose first to set out the factual background which is largely common to both applications. We will then refer to the statutory provisions and relevant principles governing applications for security for costs in relation to appeals under the Family Law Act 1975 (“the Act”), before considering and determining separately each application.

Factual background to both applications

The following background in relation to the two applications now before us emerges from the material which was relied on by the various parties before us (and which we will later detail).

The mother who was born in 1960, and who currently suffers a mental disability, gave birth in 1988 to a child, A (“the child”). Since 1990, the child has resided with the mother’s parents, apparently pursuant to a custody order made by the Family Court on 24 July 1990. We will refer hereafter to the mother’s parents, either collectively as “the mother’s parents”, or individually as “the mother’s father” or “the mother’s mother”.

The mother has for at least the last five years shared a house with B, who describes himself (in his Outline of Argument to us) as her fiancé.

On 23 October 2001, B lodged an application with the Queensland Guardianship and Administration Tribunal (“the Tribunal”) seeking that he and the mother’s father be appointed joint guardians of the mother, and that the mother’s father and the Public Trustee of Queensland be appointed joint administrators of the financial affairs of the mother.

On 18 December 2001, the Tribunal made orders appointing only the mother’s father as both her guardian and administrator.

Thereafter B has filed a considerable number of applications in the Supreme Court, including an application for judicial review of, and an appeal against, the Tribunal’s decision. It is unnecessary to set out here the detail of B’s various applications to, or hearings in, the Supreme Court. It is sufficient to say that the latest application was filed by him as recently as 2 August this year.

It appears from a judgment of Fryberg J of the Supreme Court given on 10 May 2002, that by that date, the mother’s father had decided that he wished to withdraw as the mother’s guardian, and that orders were made by Fryberg J permitting this to happen.

On 7 March 2002, B and the mother filed an application in the Family Court seeking orders relating to the mother’s contact with the child, and also that B be appointed as next friend of the mother (presumably for the purpose of those contact proceedings). The mother’s parents were the respondents to that application.

On 9 April 2002 the mother’s parents filed a response seeking (amongst other orders) that the Adult Guardian be appointed as next friend of the mother.

It may be useful if we interrupt this chronology at this point to explain briefly the position both of a next friend under the Family Law Rules and of the Queensland statutory officer known as the Adult Guardian.

Order 15 Division 4 of the Family Law Rules contains rules concerning the appointment of, and conduct of proceedings by, a next friend for a party to proceedings who, in the language of the Rules, “needs a next friend”. For present purposes, it is only necessary to draw attention to the following rules in Division 4 of Order 15:
9 In this Division:
person who needs a next friend , in relation to proceedings, means a person who, because of physical or mental infirmity, does not understand the nature and possible consequences of the proceedings or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceedings.

10 A person who needs a next friend may institute, continue, defend or seek to intervene in proceedings by his or her next friend.

11 A person appointed under this Order as the next friend of a party to proceedings:
(a) must do anything required by these Rules to be done by the party; and
(b) may do anything permitted by these Rules to be done by the party.

…

14(1)    [Court appointment of person as next friend] If a party to proceedings is a person who needs a next friend, the court may appoint a person to be next friend of the party:
(a)       on the application of a person under this Order; or
(b)      if it appears to the court to be necessary, of its own motion.

14(2)    [Where person is not corporation] If the person to be appointed is not a corporation mentioned in subrule 15(2) , before making an appointment the court must be satisfied that the person:
(a)      is a fit and proper person to be next friend of the party; and
(b)      has no interest in the proceedings adverse to the party; and
(c)has filed a consent in accordance with Form 29 .

…
16(1)    [Committee, trustee or manager] This rule applies if, for a person who needs a next friend, there is:
(a)      a committee of the person; or
(b)      no committee of person, but a committee of the estate of the person; or
(c)      under the law of a State or Territory, a trustee or manager of the person.

16(2) [Appointed as next friend] The committee, trustee or manager is taken to be appointed as the next friend of the person unless:
(a)the committee, trustee or manager is unable or unwilling to be next friend; or

(b) another person has been appointed as next friend under this Order.

…
19      The court may make such orders as it thinks fit for the payment of the costs and expenses of a next friend (including the costs of an application for the appointment of a next friend):
(a)      by a party; or
(b)      from the income or assets of the person for whom the next friend is appointed.

(For a further discussion of the position of a next friend under the Family Law Rules, see the judgment of Lindenmayer J in Watson and Watson (2002) FLC 93-094.)

The Guardianship and Administration Act 2000 (Qld) provides for the appointment of an Adult Guardian (see s 173 and ss 199 – 207). That Act provides in ss 174 and 175 for the following functions and powers of the Adult Guardian:

174 Functions

(1)The adult guardian’s role is to protect the rights and interests of adults who have impaired capacity for a matter.
(2)The adult guardian has the functions given to the adult guardian by this Act or another Act, including the following functions—
(a)protecting adults who have impaired capacity for a matter from neglect, exploitation or abuse;
(b)investigating complaints and allegations about actions by—
(i)an attorney; or
(ii)a guardian or administrator; or
(iii)another person acting or purporting to act under a power of attorney, advance health directive or order of the tribunal made under this Act;

(c)mediating and conciliating between attorneys, guardians and administrators or between attorneys, guardians or administrators and others, for example, health providers, if the adult guardian considers this appropriate to resolve an issue;

(d)acting as attorney—
(i)for a personal matter under an enduring power of attorney; or
(ii)under an advance health directive; or
(iii)for a health matter if authorised as a statutory health attorney; or
(iv)if appointed by the court or the tribunal;

(e)acting as guardian if appointed by the tribunal;
(f)seeking help (including help from a government department, or other institution, welfare organisation or provider of a service or facility) for, or making representations for, an adult with impaired capacity for a matter;
(g)educating and advising persons about, and conducting research into, the operation of this Act and the Powers of Attorney Act 1998.

(3)In performing a function or exercising a power, the adult guardian must apply the general principles and the health care principle.

(4) In subsection (2)(b) and (c)—
“attorney” means—
(a)an attorney under a power of attorney; or
(b)an attorney under an advance health directive or similar document under the law of another jurisdiction; or
(c)a statutory health attorney.

“power of attorney” means—
(a)a general power of attorney made under the Powers of Attorney Act 1998; or
(b)an enduring power of attorney; or
(c)a power of attorney made otherwise than under the Powers of Attorney Act 1998, whether before or after its commencement; or
(d)a similar document under the law of another jurisdiction.

175 Powers

(1) The adult guardian has the powers given under this Act or another Act.
(2)Also, the adult guardian may do all things necessary or convenient to be done to perform the adult guardian’s functions.

The provisions of s 178 of the Guardianship and Administration Act 2000 (Qld) should also be noted:
178 Consultation and employment of professionals
(1)The adult guardian may consult with, employ, and remunerate, the medical, legal, accounting or other professionals the adult guardian considers necessary.
(2)The adult guardian is entitled to reimbursement from an adult for remuneration paid concerning the adult.
We return now to the history of this matter.

On 9 April 2002 the application filed by B and the mother on 7 March 2002 (apparently by that time in an amended form) and the response to that application by the mother’s parents came before Registrar Spelleken for hearing. On that occasion, B and the mother were both in Court, with B explaining to the Registrar that he sought to be appointed as the mother’s next friend “to represent her” (Transcript, 9 April 2002, p. 2). A solicitor, Ms Jarrett, appeared for the mother’s parents.

Also in Court on that occasion was a lawyer, Ms Whitman, who informed the Registrar that she was a lawyer from the Office of the Adult Guardian, and went on to explain her position in the proceedings in the following way (Transcript, 9 April 2002, p.4):
MS WHITMAN: … The role of the adult guardian is provided under The Guardianship and Administration Act of 2000 and the role of the adult guardian is to protect the rights and interests of adults with impaired capacity.

REGISTRAR: All right.

MS WHITMAN: In this case [the mother] has been diagnosed with schizophrenia, bipolar and manic depression, and in the statutory role as adult guardian, in order to protect her rights and interests, we are present before the Court. In addition to that purpose, there is a cross-application seeking our appointment as next friend in substitution for the application made by [B], so I am here in the event that you’re prepared to consider that application to consent to that appointment, if appropriate.
…

MS WHITMAN:   … [The mother’s father] is his daughter’s guardian and he has the right to make personal decisions for her. He is also her administrator so he has the right to make financial decisions for her. The adult guardian’s role is to protect her rights and interests, so whilst I would not be acting as her independent lawyer it would be my role to ensure that her interests are protected through these proceedings. In any event that would be my role regardless of whether I was appointed next friend or not. If I were appointed next friend then of course I would have the additional responsibilities of conduct of that litigation.
REGISTRAR:     So if the Court makes an order in your favour in terms of being a next friend, it would be you personally?
MS WITMAN:    Well, in my role as a delegate of the adult guardian and as a lawyer representing the Office of the Adult Guardian, it would be my acting as delegate of the adult guardian - - -

In a decision given on 9 April 2002, Registrar Spelleken expressed herself satisfied that, on the basis of what she termed “a report from a health professional”, a next friend should be appointed for the mother. The Registrar also concluded that it was appropriate that the Adult Guardian should be the next friend for the mother, and she dismissed the application for the appointment of B as the next friend.

On 11 April 2002, B filed an application seeking to review the decision of Registrar Spelleken, and also seeking a range of orders, including that B be appointed the next friend for the mother.

B’s application to review the decision of the Registrar was heard and determined by Barry J on 29 May 2002. In his judgment, his Honour concluded that in light of the expert evidence, a next friend should be appointed and that the Adult Guardian should be so appointed, and that B’s application to be appointed next friend should be dismissed. Accordingly, his Honour made orders in the following terms:
1.That the application of [B] to be appointed next friend of [the mother] be dismissed.
2.That the Application for Review filed on 11 April 2002 be dismissed.
3.That the Adult Guardian be appointed next friend of [the mother].
4.That the Applicant [B] pay the Respondent Grandparents costs fixed at $2,500.00.

Following the delivery of his Honour’s judgment on 29 May 2002, there were apparently discussions between Counsel for the Adult Guardian as next friend of the mother and the solicitor for the mother’s parents. As a result of those discussions, his Honour made the following orders by consent:
1.That the Mother have contact with the child [A] born 12 October 1988 at all such times as may be agreed to between the parties.
2.That the contact referred to in paragraph 1 shall be facilitated on the first two or three occasions by an officer from the Adult Guardian’s office preferably Philippa Whitman.
3.That the applicant [the mother] shall not initiate any proceedings in the Family Court for the next 5 years unless such proceedings are initiated by the Adult Guardian on behalf of [the mother].
4.That the respondents are not required to appear on any application initiated by [the mother] except on application initiated pursuant to Order 3 herein or if ordered to appear by this Honourable Court.
5.That the Children’s (sic) Representative be discharged.
6.That all matters be removed from the pending cases list.

Also in the course of the proceedings before Barry J on 29 May 2002, B sought leave to intervene in the proceedings concerning contact between the mother and the child. His Honour refused that application (see Transcript of 29 May 2002 at pp.19-23).

On 5 June 2002, B filed a Notice of Appeal in which he appealed all orders made by Barry J on 29 May 2002. (B confirmed at the hearing before us on 21 August 2002 that his appeal was also against the orders made by consent by Barry J on 29 May 2002). The mother’s parents and the Adult Guardian were named as respondents to the appeal.

We will later set out the grounds contained in B’s Notice of Appeal and also the orders sought by B in his Notice of Appeal.

On 1 July 2002, the Appeal Book Index was settled by the Appeal Registrar.

On 9 July 2002, the Adult Guardian wrote to B in the following terms:
The Adult Guardian has received notice from the Regional Appeals Registrar, Family Court of Australia, confirming that the Appeal instituted by you has been listed for hearing for 1 ½ days before the Full Court Sittings at Brisbane in the week commencing November 25, 2002, subject to the filing of Appeal Books.
As you are aware, Directions have now been made requiring the Adult Guardian to file and serve a Summary of Argument and list of authorities in anticipation of this hearing. Counsel will be briefed for the hearing. Pursuant to Section 178 of the Guardianship and Administration Act 2000, the Adult Guardian may consult with, employ and remunerate legal or other professionals he considers necessary, and is entitled to reimbursement from an adult for remuneration paid concerning the adult the subject of the proceedings.
The Appeal instituted by you will involve substantial legal cost. The Adult Guardian has serious concerns that you do not have the financial ability to sustain a costs award, should a costs order be made by the Court against you. In these circumstances, you are now formally advised that the Adult Guardian requires that you pay the sum of Five Thousand Dollars ($5,000.00) into the Registry of the Family Court of Australia within seven (7) days from the date of this letter as security for costs in the Appeal. Should you fail to attend to payment, proceedings will be instituted without further notice to you requiring an Order seeking for (sic) costs before the Appeal proceeds.

On 5 August 2002, the Adult Guardian filed an application seeking that B provide security for the Adult Guardian’s “Next Friend’s costs” in the appeal, and on 9 August 2002, the mother’s parents also filed an application seeking that B provide security for their costs in the appeal. We have already in paragraph 1 of this judgment set out the exact terms of the orders sought by the Adult Guardian and the mother’s parents.

Both applications for the provision of security by B (which applications were opposed by him) were heard by this Full Court on 21 August 2002.

At the commencement of that hearing on 21 August 2002, the Child’s Representative, Ms Bint, appeared, but sought to be excused from the hearing that day and also from the appeal. We were prepared to excuse her from the hearing that day, but considered that it was more appropriate that the Full Court which is to hear the appeal should make the decision as to whether her attendance was further required.

Finally, in this context of the factual background to the applications now before us, it will be convenient to set out the grounds contained, and the orders which are sought, in B’s Notice of Appeal. Before doing so, we mention that no question was raised before us as to whether B required leave to appeal the orders of 29 May 2002. However, we are of the view that leave would not be necessary, given that the orders were made in proceedings concerning contact between a child and a parent. (See s 94AA of the Act and Regulation 15A of the Family Law Regulations).

The grounds of appeal

The grounds of appeal are as follows:
1.Justice Barry exceeded the jurisdiction of the Family Court of Australia, by making a consent order between the respondent next friend, on behalf of the applicant mother, and the respondent maternal grandparents, in that the consent order extinguished the right of the applicant mother to damages, without giving the applicant mother any advantage in return, and did not address the neglect by the respondent maternal grandparents to raise the child in the manner agreed between the applicant mother and the respondent maternal grandparents in 1990, and so is an order that is so unreasonable that no reasonable court of law could have made it, and is contrary to public policy, which requires that lawful agreements be enforced by the courts.
2.Justice Barry improperly intervened in the conduct of the proceeding, by criticising the application by the appellant and the applicant mother as having no prospect of success, without first hearing from the appellant, by referring to the appellant in derogatory terms such as ‘ratbag’, and by urging the applicant mother to reach agreement with the respondent maternal grandparents, all of which unduly influenced the applicant mother to agree to a consent order that was manifestly unfair to the applicant mother.
3.Justice Barry exceeded the jurisdiction of the Family Court of Australia, by making the orders in the proceeding for an improper purpose, namely to prevent the child from being raised according to traditional Protestant values, as was agreed in 1990 between the applicant mother and the respondent maternal grandparents, these being values that are held by at least twenty percent of the Australian population, including the applicant mother and the appellant, whom His Honour referred to as a ‘bigot’, a term that His Honour, who is a Catholic, applies to people who support traditional Protestant values.
4.Justice Barry erred in law as to the test to be applied to establish whether a person is concerned with the care, welfare or development of a child.
5.Justice Barry erred in law in holding that an applicant who does not seek an order giving the applicant a right to contact with a child is not a person who is concerned with the care, welfare or development of a child.
6.Justice Barry erred in law in holding that the appointment of the third respondent as next friend to represent the wishes of the applicant mother precluded the appellant intervening in the proceeding to represent the wishes of the applicant mother.
7.Justice Barry erred in finding on the evidence that the appellant was not concerned with the care, welfare or development of the child.
8.Justice Barry erred in finding on the evidence that the applicant mother had impaired decision making capacity.
9.The appellant should be able to put forward fresh evidence of the full decision making capacity of the applicant mother, as the appellant and the applicant mother have exercised reasonable diligence to obtain the evidence, but were not able to obtain as much evidence as they would have wished to put before Justice Barry, due amongst other things to health professionals trying to affect the outcome of the proceeding by refusing to provide evidence.
10.Justice Barry erred in law as to the test to be applied to establish whether someone is a fit and proper person to be appointed as a next friend.
11.Justice Barry erred in law in neglecting to remove the third respondent as next friend for the applicant mother, after the third respondent submitted a draft consent order for approval by His Honour that was manifestly unfair to the applicant mother.
12.Justice Barry exceeded the jurisdiction of the Family Court of Australia, by failing to take into account a relevant consideration in deciding whether to appoint the third respondent as next friend for the applicant mother, namely that the employees assigned by the third respondent to make substitute decisions for the applicant mother were from a cultural group whose culture is incompatible with the applicant mother’s culture.
13.Justice Barry erred in law in hearing from the third respondent prior to His Honour deciding that the third respondent should be the next friend for the applicant mother, as the third respondent was not a party to the proceeding, and had no standing to be heard.
14.Justice Barry erred in law in entertaining the request by the respondent maternal grandparents that the third respondent be appointed as next friend for the applicant mother, as the respondent maternal grandparents had previously told the Supreme Court of Queensland that they would not oppose the appointment of the appellant as next friend for the applicant mother, which representation the Supreme Court relied on to the detriment of the appellant and the applicant mother, so that the respondent maternal grandparents were as a consequence estopped from seeking the appointment of the third respondent as next friend for the applicant mother.
15.Justice Barry erred in finding on the evidence that the appellant was not a fit and proper person to be next friend for the applicant mother.
16.Justice Barry erred in finding on the evidence that the presumption that the third respondent was a fit and proper person to be next friend for the applicant mother had not been rebutted.
17.Justice Barry erred in law as to the test to be applied to decide whether to appoint a child’s representative.
18.Justice Barry erred in finding on the evidence that the appointment of a child’s representative was justified.
19.Justice Barry exceeded the jurisdiction of the Family Court of Australia, by making an order for the appellant to pay costs to the respondent maternal grandparents, after the appellant had asked His Honour to disqualify himself, on the ground of an apprehension of bias, due to the derogatory remarks that His Honour made about the appellant, which were not justified on the evidence before the Court, and which would lead the parties and the public to have a reasonable apprehension that His Honour did not bring an impartial and unprejudiced mind to the consideration of whether to make an order concerning costs.
20.Justice Barry exceeded the jurisdiction of the Family Court of Australia, by making an order for the appellant to pay costs to the respondent maternal grandparents, after failing to take into account a relevant consideration, namely that the proceeding was the result of the unlawful, unreasonable and provocative actions by the respondent maternal grandparents, in sending the child to a school that they had agreed with the applicant mother not to send the child to, in sending the child on repeated occasions to stay all weekend with the child’s uncle and the uncle’s homosexual partner, and in terminating the applicant mother’s weekly visits to see the child.

The orders sought by B in his Notice of Appeal are as follows:
1.An order that the appeal be allowed.
2.An order that the orders of the Honourable Mr. Justice Barry of 29 May 2002 be set aside.
3.An order that the orders of Ms. Spelleken of 9 April 2002 be set aside.
4.An order that [B] be joined to the proceeding as the second applicant.
5.An order that [B], as a person concerned with the care, welfare or development of the child [A], be at liberty to proceed with the application.
6.An order that [B] be appointed as next friend for [the mother].
7.An order that the application by [the mother’s parents] to have a child’s representative appointed for the child [A] be refused.
8.An order that the application be remitted to the Family Court of Australia in its original jurisdiction to be heard and determined according to law.
9.An order that the publication of the parties’ names be prohibited.

The principles governing an application for security for costs

The power in this Court to make an order for security for costs is to be found in s 117(2) of the Act, which is in the following terms:
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 subsection (2A) 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.

The provisions of s 117(2A) are as follows:
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, in accordance with section 117C or otherwise, 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.

The principles which should govern the exercise of the power in s 117(2) to make an order for security for costs have been considered in the two relatively recent decisions of the Full Court of this Court of Luadaka v Luadaka (1998) FLC 92-830 and Jones and Jones (2001) FLC 93-080.

In Luadaka, which was concerned with the making of an order for the provision of security in relation to the costs of proceedings at first instance, the Full Court made the following observations concerning the matters to which regard should be had in determining whether or not to exercise the discretion to order the provision of security (emphasis added):
39.An order that an applicant provide security for costs may be made in appropriate circumstances. However, it must be established that there are circumstances justifying the making of such an order. In considering whether to make such an order regard must be had to the provisions of s.117(2A). The Family Law Act does not separately list factors which should be taken into account when dealing with an application for security for costs of a pending application for relief pursuant to provisions of the Act.
…
61.In our opinion, when dealing with an application for security for costs the general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s 117(2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. The decision to order security for costs is discretionary, both as to whether to order security, and as to the amount to be secured.
62.The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. In considering whether or not to make an order, apart from those referred to in s.117(2A), matters which may be relevant include the following:
62.1It may be relevant to take into account the means of an applicant to satisfy an order for costs if he or she is unsuccessful. Ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should be no bar to justice. This is reinforced by s.117 (1). However, the financial circumstances of the applicant do not prevent an order being made if there are other grounds which justify an order. Financial weakness may be relevant, for example, if the applicant is a company. In relation to the means of the respondent, who is the applicant for security, it was held by Goldstein J in Alexander and Alexander (supra) and Gee J in B and B (supra) that the question is whether or not the respondent is able to pay his or her costs. Section 117(2A)(a) requires consideration of the financial circumstances of both parties. However, we do not accept that it will only be in cases where the applicant for security does not have the means to meet his or her costs that an order would be made. In appropriate circumstances an order may be made even if the applicant for security has the means to pay his or her costs.
62.2The prospects of success is a relevant matter to take into consideration: Parkinson & Co Ltd v Triplan Pty Ltd (supra). However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant’s success unless it can be demonstrated that there is a high probability of success or failure: Porzelack KG v Porzelack (UK) Ltd [1987] 1 WLR 420 ; Appleglen Pty Ltd v Mainzeal Corporation Pty Ltd (1988) 79 ALR 634; Equity Access Ltd v Westpac Banking Corporation (1989) ATPR ¶40-972. This is because of the lack of material at the time the application is dealt with. However, such an assessment may be possible in circumstances where, as in this case, affidavits have been filed in which the case sought to be made out is set out.
62.3It is a relevant consideration whether the applicant’s claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham: Parkinson & Co Ltd v Triplan Pty Ltd (supra); Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133; J & M O'Brien Enterprises Pty Ltd v Shell Company of Australia Ltd (1983) 7 ACLR 790.
62.4It may be relevant to consider whether or not an order for costs would be oppressive or stifle the litigation. In Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 Byrne J said at 306:
“A factor in deciding whether security should be required is that the order may well mean that the action cannot proceed. That prospect does not require refusal of the application but it is often a significant matter.”
See also Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 and Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 5 ACLC 480.
62.5It may be relevant to consider whether or not the litigation may involve a matter of public importance: Equity Access Ltd v Westpac Banking Corporation (supra); Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248. In Quick on Costs at [4.9440] it is said that this will militate against the making of an order.
62.6It may be relevant to consider whether or not there has been delay in bringing the application. An application may be refused if there is delay in making the application and prejudice is caused to the respondent to the application: Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 and Loreva Pty Ltd v Cefa Associated Agencies Pty Ltd (1982) 7 ACLR 164 .
62.7Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.
63.We do not suggest that the above matters are exhaustive of what may be taken into account. However, such matters may be relevant to the exercise of discretion.

Subsequently in Jones, where the Full Court was concerned with the making of an order for security for the costs of an appeal, the Full Court, after setting out paragraphs 61 to 63 of the judgment in Luadaka, went on to say (emphasis added):
20.There is no doubt that the wife is impecunious, that she may well be unable to proceed with the appeal if she is ordered to provide security and will be unable to meet an adverse order for costs in the appeal. The prospect, however, of the husband being left without a remedy in respect of a costs order if the appeal is dismissed is significant.
21.It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 Ch. D. 34 at 38, J. & M. O’Brien Enterpreises Pty Ltd v The Shell Co. of Australia Ltd (No. 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Limited (unreported, Federal Court of Australia, 1 July 1993).
22.The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.
23.If an appeal appears to have little merit, a court may be more disposed to make an order for security for costs. Whilst we have not had the benefit of submissions on behalf of the wife, the appeal does not appear to raise matters of principle.
…
27.In addition to the matters to which we have earlier referred, we have taken into account that neither party is in receipt of a grant of legal aid and that no submissions have been made as to the relevance of paragraphs (d) and (f) of s.117(2A).
28.Having regard to all the matters to which we have referred, we have concluded that it is appropriate to exercise the discretion in favour of the husband and order the wife to give security for the costs of the appeal. We are further of the view that, in the circumstances of this case, we should order that the wife’s appeal be dismissed in the event that she does not provide that security.
29.We now turn to consider the question of the amount in which security should be given. In determining that question, we have regard to the amount of the costs likely to be incurred by the husband, although as Fullagar J. said in Brundza v Robbie & Co (No. 2) (1952) 88 CLR 171 at 175:-
“… in ordering security for costs, the Court does not set out to give a complete and certain indemnity to a respondent: see Aberdare & Plymouth Co. v. Hankey [(1888) 32 S. J. 644]. It is not, of course, to be assumed that the appellant will fail.”
30.The husband has sought $5000 by way of security. However, no skeleton bill of costs was provided and we are left to form our own view of what the husband’s costs are likely to be based on such knowledge as we have of the issues disclosed in the material before us. We are of the view that we should fix such sum as we think just in all the circumstances. On that basis, we would fix the security in the sum of $3000. That security should, however, be in a form acceptable to the Registry Manager, Brisbane Registry of Court.

Against the background of these principles, we turn to consider separately the two applications before us.

The application of the Adult Guardian

In support of the application of the Adult Guardian, Counsel for the Guardian relied on an affidavit (filed 5 August 2002) of Philippa Whitman, who is the delegate of the Adult Guardian, and an affidavit (filed 9 August 2002) of Tracey Ann Greenhalgh, who is the solicitor for the mother’s parents.

Ms Whitman’s affidavit had as annexures, copies of the following documents:
(1)     the reasons for decision of the Tribunal;
(2)     the judgment of 2 January 2002 of Muir J of the Supreme Court;
(3)     the judgment of 7 February 2002 of Fryberg J of the Supreme Court;
(4)     the judgment of 1 March 2002 of Douglas J of the Supreme Court;
(5)the transcript of the hearing before Registrar Spelleken on 9 April 2002;
(6)the judgment of 10 May 2002 of Fryberg J of the Supreme Court;
(7)the transcript of the proceedings before Barry J on 29 May 2002;
(8)the Notice of Appeal filed by B on 5 June 2002;
(9)the letter written to B by the Adult Guardian dated 9 July 2002;
(10)   a letter written by B to the Adult Guardian dated 15 July 2002; and
(11)an application to the Queensland Court of Appeal by the mother and B, signed by B on 19 July 2002.

Annexed to Ms Greenhalgh’s affidavit was a copy of a further application to the Supreme Court by B signed by him on 1 August 2002.

In addition, Counsel relied on the reasons for judgment and orders of Barry J of 29 May 2002 (including the orders made by consent on that date) and on the following material which we understand to have been before Barry J: an application (by B) for review (filed 11 April 2002); an affidavit of B (filed 27 May 2002); a Financial Statement by the mother (filed 8 April 2002); and a report of Dr Taemets dated 30 November 2001.

We record at this point that B objected on the grounds of relevance to Annexures 2, 3, 4 and 11 to Ms Whitman’s affidavit. However, when it was explained to us by Counsel for the Adult Guardian that the purpose of these documents was to show the history of the litigation in the Supreme Court between the Adult Guardian and B, we overruled the objection.

On the basis of the material mentioned in paragraphs 40 to 43, and having regard to the matters specified in s 117(2A) of the Act, and to the principles discussed in Luadaka and Jones, Counsel made the following submissions in support of the application by the Adult Guardian.

In relation to the financial circumstances of the parties, being the matter referred to in paragraph 117(2A)(a) of the Act, it was submitted that although the Adult Guardian was empowered pursuant to the Guardianship and Administration Act 2000 (Qld) to fund the legislation, and had sufficient financial resources to do so (see in this regard the affidavit of Ms Whitman), nevertheless the fact that B was impecunious (as emerges from the transcript of the hearing before Barry J and also from a statement made by B at page 4 of his written submissions to us), was a significant factor in this case. In support of this submission, reliance was placed on what was said in paragraph 62.1 of the Full Court’s judgment in Luadaka and in paragraphs 21 and 22 of the Full Court’s judgment in Jones. (See paragraphs 37 and 38 of this judgment).

Also relevant to the matter of the financial circumstances of B is the consideration referred to in Luadaka (at paragraph 62.7) of “difficulties of enforcing an order for costs”. It was submitted in this regard that there would be difficulties in enforcing an order for costs in this case, because B has no, or only a limited, capacity to meet any costs order which might be obtained by the Adult Guardian.

In relation to the matter contained in paragraph 117(2A)(c) of the Act, being, in summary, the conduct of the parties in relation to the proceedings, it was submitted that B had conducted the proceedings in a manner which would justify an order for security for costs. In addition to relying on the history of the proceedings which we have previously outlined in this Court and in the Supreme Court (and which were outlined in the affidavits of Ms Whitman and Ms Greenhalgh and the annexures to those affidavits), reliance was placed on the unnecessary length and questionable relevance of B’s amended application for review (filed 11 April 2002) and his affidavit (filed 27 May 2002), as well as the Financial Statement of the mother (filed 8 April 2002), and in particular an annexure to that document - Barry J having found that B had prepared the documents signed by the mother. Reliance was also placed on what was said in certain judgments of the Supreme Court of Queensland, concerning irrelevant matters raised by B in hearings before that Court.

With regard to the prospects of success of the litigation (in relation to which the security is sought), being the matter referred to by the Full Court in Luadaka (at paragraph 62.2), it was submitted that the Adult Guardian “was appropriately appointed”, and that B’s application to intervene as someone concerned with the care, welfare and development of the child in the proceedings concerning contact between the mother and the child was rightly dismissed by Barry J.

In relation to the question referred to in Luadaka (at paragraph 62.3) of whether the claim is “made bona fide”, it was submitted that B’s claim is “not regular” and at least in relation to his application to intervene in the contact proceedings “does not disclose a cause of action”. It was further submitted that “given the independent nature of the Adult Guardian, his claim to be appointed Next Friend could not be seen as bona fide”.

As to the consideration also referred to in Luadaka (at paragraph 62.4) that an order for security could be oppressive or could stifle the litigation, it was submitted by Counsel in her written submissions that while “an order for costs may have the effect of stifling the litigation … the nature of the litigation is oppressive and if the order stifles the litigation, so be it”.

As to the questions referred to in Luadaka (at paragraphs 62.5 and 62.6) of whether the litigation involves a matter of public importance, or whether there has been a delay in bringing the application for security, it was submitted that there was no matter of public importance in the present case which would mitigate against making an order, nor had there been any delay in bringing the application for the order.

In opposing the application by the Adult Guardian, B included the following significant submissions in his written Outline of Argument:

that the idea behind requiring litigants to provide security for costs is to prevent a respondent being financially ruined by litigation which has limited prospects of success, but that the Adult Guardian could not be financially ruined by the appeal since his legal expenses are being paid by the Queensland Government;
that an order for security for costs “would certainly be oppressive and would stifle the proceeding, as there is no way that Mr. B or [the mother] could pay it”;
that “[a]n order for security for costs would not achieve the result that [the applicants] desire” (being presumably, the end of the litigation), in that Barry J’s decision “can be challenged in other Courts on the basis of exceeding the jurisdiction of the Family Court”.

Further, B explained in his written submissions, as he also did in his oral submissions, that his grounds of appeal could be categorised into the following four groups:

the Family Court denied the mother the right to be heard;
the Family Court expropriated property belonging to the mother without compensation;
Barry J influenced the mother to agree to the consent orders; and
the Adult Guardian obtained the consent order by fraud.

It was submitted by B that these grounds all had merit, and indeed the greater part of B’s written submissions was devoted to demonstrating the merits of his grounds of appeal.

In his written submissions, B placed considerable reliance on the provisions of the Uniform Civil Procedure Rules 1999 (Qld). We would explain at this point that we do not consider it necessary to address in this judgment the specific provisions of those Rules which were relied on by B. This is for the reason that those Rules have no application in the strict sense to proceedings in the Family Court of Australia. That having been said, however, it would seem that there is considerable similarity between the principles embodied in those Rules and the principles which the Full Court of this Court has stated in Luadaka and Jones should guide the exercise of the discretion under s 117(2) of the Act.

In his oral submissions in response to the submissions of Counsel for the Adult Guardian, B again emphasised, first that an order for security for costs would not end the litigation because he would take the matter higher, and secondly, the likelihood of his appeal succeeding.

B also submitted that the case raised a matter of public importance because of the need to protect the civil rights of the considerable number of Australians who suffer a mental illness, and that the case involved a bona fide claim concerning the rights of contact between the mother and the child.

Finally, in his oral submissions in response to Counsel for the Adult Guardian, B endeavoured to justify the length of the various documents filed by him and on which Counsel had relied in support of the application for security.

In addition to relying on his written and oral submissions, B also relied on an affidavit which he had sworn on 15 August 2002. Much of the content of that affidavit appeared to be directed to the merits of the appeal, and also to certain further orders B sought that this Full Court should make and which we will discuss at the conclusion of this judgment. We consider it important to record that no point was taken before us in relation to the admissibility of any of the material in B’s affidavit.

Conclusion in relation to the application by the Adult Guardian

In deciding whether or not there are circumstances which would justify the exercise of the discretion to make an order in favour of the Adult Guardian for security for costs to be incurred by the Guardian in relation to B’s appeal, we propose first to consider those matters referred to in Luadaka and Jones which might be said to touch upon the merits or nature of the appeal, and then secondly to consider matters of a financial nature as discussed in those authorities.

It is never easy to predict whether or not an appeal is likely to be ultimately successful. Nevertheless, in this case, and bearing in mind of course that we have not had the benefit of full argument, it is difficult to see that a challenge either to the decision to appoint the Adult Guardian – an independent, statutory officer charged with protecting the interests of disabled persons - as the next friend for the mother, or to the decision to refuse leave to B – a stranger in blood - to intervene in the contact proceedings between the mother and her parents, would have any great likelihood of success. Further, it would seem, as Counsel for the Adult Guardian pointed out in her written submissions, that it would only be if B could succeed in either being appointed as the mother’s next friend, or being permitted to intervene in the contact proceedings, that he could pursue his grounds of appeal which are directed to matters other than the appointment of the next friend or the refusal to permit him to intervene.

The question of the bona fides (or otherwise) of the claims, which B has pursued below and now seeks to pursue on appeal, is also a difficult matter. Whatever responsibility B may consider he has personally for the mother and the child, we are of the view that from an objective viewpoint, his claims to be involved in their affairs, either as next friend or intervener, might be said to be somewhat remote (given that he is not a blood relative of the child, and that he apparently does not claim to be in the position of a step-parent to the child or otherwise to have had the care of the child). Indeed, having regard to the history of the litigation in this Court and in the Supreme Court, and also to the independent nature of the Adult Guardian, his claims might be said to border on the vexatious.

While it may be difficult for us to reach any firm conclusion concerning the bona fides of the proceedings which B is pursuing in this Court, we can however conclude with some confidence that, notwithstanding the mother’s disability and the statutory position of the Adult Guardian, these proceedings (including the appeal) do not raise any matter of public importance.

We turn then to financial considerations. It was conceded on behalf of the Adult Guardian that the Guardian has the resources to fund this appeal. Further, it would appear to be common ground that B is impecunious and could not meet an order for security for costs.

Notwithstanding the financial security of the Adult Guardian, it is also, in our view, a very relevant consideration that the Adult Guardian is funded out of the public purse. It is also relevant to have regard to the length of the documents which have been filed by B or by the mother in these proceedings and to which Counsel for the Adult Guardian drew our attention. It is, in our view, self-evident that considerable public funds will need to be spent in preparing the Adult Guardian’s case to meet the appeal brought by B.

We mention at this point that the need for the Adult Guardian to be actively involved in the appeal (rather than merely abiding by the decision of the Court) was not challenged before us. But in any event, we are of the view that the Adult Guardian’s duty to ensure that the mother’s interests are protected in any litigation would require the Adult Guardian’s active involvement in the appeal.

It is also self-evident that in the event that the appeal is ultimately unsuccessful, any costs order made in favour of the Adult Guardian is unlikely to be met, given B’s impecuniosity. (See in this regard the decision of Gaudron J in Dillon v Baltic Shipping Co (1991) 102 ALR 482 at 486).

In our view, these various considerations concerning the commitment of public funds, and the likely futility of any costs order which might be made in favour of the Adult Guardian, would provide justification for the making of an order for security for costs in favour of the Adult Guardian.

But before reaching that conclusion, we must have regard to the argument advanced by B, which was effectively conceded on behalf of the Adult Guardian, being that such an order for the provision of security would be more than likely to stifle the proceedings.

It is of course a matter of serious concern that an impecunious appellant may be prevented by the making of an order for the provision of security for the costs of the appeal, from pursuing his or her rights of appeal. However, that concern must be balanced against an equally serious concern for the position of a respondent to the appeal who, in the event that the appeal should fail, and because of the impecuniosity of the appellant, will be left to bear the burden of his or her own costs of successfully resisting the appeal.

In these circumstances, the difficult issue of the merits (or otherwise) of the appeal must assume particular significance. As Toohey J observed in Webster and Another v Lampard (1993) 112 ALR 174 at 175:
Where there is an appeal as of right … it is more appropriate to consider the merits of the appeal where security for costs is sought. An appeal may appear to have little merit, in which case a court will be more disposed to order security.

We have earlier in paragraph 62 of this judgment expressed our reservations concerning the merits of B’s appeal. We need not repeat that discussion here. It is sufficient to say that in view of those previously expressed reservations about the prospects of the success of the appeal, we consider that the discretion to order security for the costs of the appeal should be exercised in favour of the applicant Adult Guardian, notwithstanding that such an order may mean that B, an impecunious appellant, is effectively prevented from pursuing his rights of appeal.

We well recognise that the Adult Guardian would have sufficient resources to bear its own costs as a respondent to an unsuccessful appeal. But notwithstanding this fact, we consider that the fact that such costs would have to be met out of public funds would justify the making of an order for security for costs in favour of the Adult Guardian.

Furthermore, in reaching this conclusion, we have not overlooked the provisions of s 178 of the Guardianship and Administration Act 2000 (Qld) and also of Order 15 r 19 of the Family Law Rules, both of which would seem to entitle the Adult Guardian to have, or to apply to have, legal costs, incurred as part of acting as the mother’s next friend, met from the resources of the mother. But we do not consider that the existence of those provisions should prevent the Adult Guardian, who now finds himself or herself in the position of a respondent to an appeal, from exercising the right of a respondent to an appeal to seek that the appellant provide security for the respondent’s costs in the appeal. Nor do we consider that the existence of those provisions should prevent the exercise in favour of the respondent Adult Guardian of the discretion to order the provision of security by the appellant.

As to the amount of security to be provided, the Adult Guardian has sought that it be in the sum of $5,000. However, no skeleton bill of costs was provided to indicate how that sum was arrived at, and we are of the view that a more appropriate figure, having regard to the quantum of many of the costs orders made in favour of respondents to appeals in this Court, would be $3,000.

The Adult Guardian has also sought that we order that unless the security is provided within one month of the date of the order, then the appeal should stand dismissed. We agree that it is appropriate to make an order in such terms, and indeed much of our earlier discussion in this judgment has proceeded on the basis that the order would be made on the basis that if security was not paid, the appeal would not proceed.

The actual terms of the order sought in the Adult Guardian’s application might be read as suggesting that the security should be lodged with the Registry Manager of the Brisbane Registry of the Court. When we indicated to Counsel that there may be difficulties with such an arrangement, Counsel sought further instructions, and was ultimately able to inform us that the security could be paid into a suspense account with the Queensland Department of Justice and the Attorney-General to the credit of the Adult Guardian.

The application of the mother’s parents

In support of the application of the mother’s parents for the provision of security by B in relation to the costs of his appeal, to which they are respondents, their Counsel relied on the same material as that relied on by Counsel for the Adult Guardian (which material we have detailed in paragraphs 40 to 43 above). Counsel for the mother’s parents also adopted (so far as relevant) the written and oral submissions of Counsel for the Adult Guardian.

In addition to relying on the submissions of Counsel for the Adult Guardian, Counsel for the mother’s parents in his own submissions laid particular emphasis on the financial circumstances of his clients and of B. Counsel also laid emphasis on B’s conduct in the proceedings in both the Supreme Court and this Court (notably the length and questionable relevance of the various documents filed by B in this Court, including the grounds contained in his Notice of Appeal).

Specifically, in relation to the financial circumstances of the mother’s parents, and the impact on their financial circumstances of the various proceedings which B has initiated in this Court and in the Supreme Court, Counsel relied on the following paragraphs from the affidavit of the solicitor for the mother’s parents, Ms Greenhalgh:
4.Since the swearing of Ms Whitman’s Affidavit the Respondent B has instituted another Application in the Supreme Court of Queensland which is set for hearing on 22 August 2002 a copy of which is annexed hereto and marked with the letters “TAG1” Including the Application to the Guardianship and Administration Tribunal, the Respondent has made seven applications to the Supreme Court, one appeal from the decision of the said Tribunal and now an appeal to the Court of Appeal from the decision of the Appeal Judge Mr Justice Fryberg. In addition he has made an initial application to this Honourable Court, an Application for Review of that decision and an appeal of the decision made on review.
5.By Order of Mr Justice Barry made 29 May 2002 the Respondent B was ordered to pay the Applicants’ costs fixed at $2,500.00. As at the date of this my Affidavit the Respondent has not paid those costs nor any part thereof.
6.Under the terms of Mr Justice Fryberg’s Order made in the Supreme Court the Respondent was also ordered to pay costs to the Applicants. Due to the Respondent’s impecunious state the Applicants have not taken steps to have those costs assessed given the expense of so doing and the apparent likelihood of payment by the Respondent of either the costs of assessment, taxation or of the proceedings themselves in the Supreme Court.
7.The Applicants are retired and support themselves and their granddaughter [A], the daughter of [the mother], fully from their allocated pensions. As at the date of this my Affidavit the Applicants have spent in excess of $22,000.00 in meeting the applications of the Applicant in both the Supreme and Family Courts.
8.I am informed by the male Applicant [the mother’s father] and verily believe that the reason he elected to resign as the Administrator and Guardian for his daughter [the mother] was so as to avoid further court costs associated with meeting claims by the Respondent because the costs of those Applications were impacting on his ability to support himself, his wife and his granddaughter. A desire to limit their costs as much as possible as well as their time being taken up addressing the Appeal to the Court of Appeal and two Applications by the Respondent set for hearing in the Court of Appeal and the Supreme Court in August and October 2002 are the reasons for the Applicants delaying filing this Application until it became apparent that the Respondent was not going to cease his applications or appeals in either the Supreme or Family Courts.

Although B made some brief oral submissions responding to a number of specific factual or legal matters raised by Counsel for the mother’s parents (which matters we do not consider it necessary to canvass), we understood that in opposing the application of the mother’s parents for security, B essentially relied on the content of his written Outline of Argument, and also on his oral submissions made in response to the oral submissions of Counsel for the Adult Guardian. We have earlier, in the context of discussing the Adult Guardian’s application, set out the principal submissions made by B in his written Outline of Argument and oral submissions in response to those made on behalf of the Adult Guardian. We need not repeat those submissions at this point.

We also understood B, in opposing the application by the mother’s parents, to rely on his own affidavit sworn 15 August 2002. As we have previously explained, much of that affidavit was directed to the merits of the appeal. One particular matter referred to in that affidavit, and also referred to by B in his oral submissions to us in opposition to the application of the mother’s parents, was an alleged contract between the mother and her parents. We can only say about this particular matter that we do not regard it as having any relevance to the question of whether B should be required to provide security for the costs of the mother’s parents in the appeal.

Conclusion in relation to the application by the mother’s parents

In determining whether there are circumstances which would justify the exercise of the discretion to make an order in favour of the mother’s parents for security for their costs in B’s appeal, we consider that what we said in paragraphs 62 to 64 of this judgment, in the context of our consideration of the Adult Guardian’s application, concerning the merits, bona fides and lack of public importance of the appeal, would apply equally to our consideration of the application of the mother’s parents. Accordingly, we adopt for present purposes what we said in those earlier paragraphs.

We turn then to the financial circumstances of the parties to the present application. The affidavit of the solicitor for the mother’s parents provides us with an indication of their financial situation generally, and also more particularly of the impact on their financial situation of the applications already made by B in this Court and in the Supreme Court. So far as B is concerned, it is accepted that he is impecunious, and it can also be accepted that it is unlikely that any costs order made against him in favour of the mother’s parents would ever be met, or able to be enforced. These considerations concerning the financial circumstances of the mother’s parents and B would, in our view, provide justification for the making of an order for security for costs in favour of the mother’s parents.

Again, however, we must have regard to the fact that any order for security made against B in favour of the mother’s parents is likely to stifle the proceedings, and that (as we concluded when considering the application of the Adult Guardian) it is a matter of serious concern that B, as an impecunious appellant, may be prevented by the making of an order for security for the costs of the appeal, from prosecuting his appeal.

But again, as with the application of the Adult Guardian, regard must also be had to the position of the respondents to the appeal who, in the event that the appeal should fail, would be left, because of the impecuniosity of the appellant, to bear the burden of their own costs of successfully resisting the appeal. Again, therefore, the question of the prospects of the success or otherwise of the appeal becomes an important issue. (See again the observations of Toohey J in Webster and Another v Lampard).

Given the reservations which we previously expressed about the prospects of the appeal succeeding (see paragraph 62 above), we consider that the discretion to order security for the costs of the appeal should be exercised in favour of the mother’s parents.

As to the amount of security to be provided, the mother’s parents have sought in their application that it be in the sum of $5,000. A skeleton bill of costs was provided on their behalf to show how that sum was arrived at (being $2,500 to $3,000 for Counsel and $2,000 for solicitors’ costs). Again, however, we are of the view that a more appropriate figure, having regard to the quantum of many of the costs orders made in favour of respondents to appeals in this Court, would be $3,000. We consider that such sum should be paid into the trust account of the solicitors for the mother’s parents.

The mother’s parents have also sought that unless the security is provided within one month of the date of the order, then the appeal should stand dismissed. We agree that it is appropriate to make such an order in such terms.

Costs of the applications for security by the Adult Guardian and the mother’s parents

At the conclusion of the hearing before us on 21 August 2002, costs were sought by both the Adult Guardian and the mother’s parents in the event that their applications were successful. The Adult Guardian sought costs in the sum of $1,000 (being Counsel’s fees), and the mother’s parents sought costs in the sum of $2,000 (being Counsel’s and solicitors’ fees).

B sought that the costs of the applications for security (if successful) should become costs in the appeal.

The difficulty with B’s proposal that the costs of the successful security applications should be costs in the appeal, is that if the appeal does not proceed, either because the orders for security are not met or for any other reason, then the opportunity for the successful applicants for the orders for security to recover the costs of those applications will be lost.

Accordingly, we consider that the more appropriate course is that we determine finally at this time the applications for costs in respect of the successful applications for security.

Having regard to the matters contained in s 117(2A) of the Act, we are of the view that the circumstances justify the making of orders for costs in favour of the Adult Guardian in the sum of $1,000 and in favour of the mother’s parents in the sum of $2,000, with such costs to be paid within three months.

Further applications sought by B

At the hearing of the appeal before us on 21 August 2002, B sought to file a further application form, and as we understood his submissions, to have us determine the various applications made in that document, which were for the following orders:
1.An order that the parties should not have to provide security for costs.
2.An order that, until further order of a Judge, the operation of the order of the Honourable Mr. Justice Barry of 29 May 2002 requiring [B] to pay costs of $2500 to [the mother’s parents] be suspended.
3.An order that [the mother] be represented in this appeal by [B].
4.An order that the following further evidence be taken into consideration in this appeal:
(a)Transcripts of Supreme Court of Queensland proceeding number S372 of 2002 for 7 February 2002, 9 May 2002 and 10 May 2002;
(b)The affidavit of [the mother] sworn 23 January 2002 and filed in Supreme Court off (sic) Queensland proceeding number S372 of 2002; and
(c)Medical reports prepared after 29 May 2002 concerning the decision making capacity of [the mother].
5.An order that, until further order of a Judge or Registrar, [the mother] is to have unsupervised access to her daughter [the child] at the following times:
(a)every Sunday between 8.00 am and 6.00 pm;
(b)every Wednesday between 4.00 pm and 6.00 pm except during December and January;
(c)every 26 June and 12 October between 4.00 pm and 6.00 pm if a weekday or between 10.00 am and 2.00 pm if not a weekday;
(d)every 25 December between 10.00 am and 2.00 pm;
(e)for two weeks from the first Sunday in January to the third Sunday in January; and
(f)for one week in every school holidays, including the Christmas holidays, from the first Sunday in the holidays to the second Sunday in the holidays.
6.An order that, until further order of a Judge or Registrar, whenever [the mother] has access to her daughter [the child], the child’s guardians [the mother’s parents] are required to ensure that the child is brought to her mother’s usual residence at the time the access is due to start, and that the child is collected from there at the time the access is due to end, unless they from time to time agree to other arrangements with the child’s mother, which arrangements the child’s mother may cancel from time to time.
7.An order that all documents in the appeal other than the appeal books are to be served by facsimile and by post.
8.An order that the Registry is to provide the parties with access to the court file for this appeal on request whenever the Registry is open.
9.An order that the Registry immediately make available for the appellant to collect a copy of the Court exhibit (report of Dr. Taemets) from the proceeding in the Court below.
10.An order that the costs of this application be costs in the appeal.

The applications for Orders 1 and 10 of the above orders have been determined by us in the course of this judgment.

The application for Order 9 became unnecessary, because in the course of the hearing before us, the exhibit in question was made available to all parties (being a document relied upon by the applicants).

Order 3 would seem to go to one of the matters to be determined in B’s appeal.

Orders 4 and 7 would seem to be matters for the Appeal Registrar when settling the Appeal Book Index or otherwise giving directions in relation to the appeal.

Orders 2, 5, 6 and 8 are orders that are more appropriately sought before a single Judge or Registrar, following the filing of the appropriate application form as prescribed by the Family Law Rules.

Orders

That unless within 30 days of the date of this order, the appellant, B, provides security in the sum of $3,000 for the Adult Guardian’s costs as next friend of the mother in the appeal against the orders of the Honourable Justice Barry made on 29 May 2002, by depositing such sum in the suspense account of the Department of Justice and the Attorney-General to the credit of the Adult Guardian, then the appeal shall stand dismissed.

That B pay the costs of the Adult Guardian of and incidental to the application for security for costs, with such costs assessed in the sum of $1,000, and with such costs to be paid to the Adult Guardian within 3 months of the date of these orders.

That unless within 30 days of the date of this order, the appellant, B, provides security in the sum of $3,000 for the costs of the mother’s parents in the appeal against the orders of the Honourable Justice Barry made on 29 May 2002, by depositing such sum into the trust account of Messrs Crowley & Greenhalgh, Suite 14, Princeton Court 1, 18 Brookfield Road, KENMORE QLD 4069, then the appeal shall stand dismissed.

That B pay the costs of the mother’s parents of and incidental to the application for security for costs, with such costs assessed in the sum of $2,000, and with such costs to be paid within 3 months of the date of these orders.

I certify that the preceding 101 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court

…………………………
Associate

Citations

Adult Guardian and Mother's Parents v B and Child's Representative [2002] FamCA 874

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