FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Agambar & Agambar [2021] FedCFamC1A 1
Appeal from: Agambar & Agambar [2021] FCCA 1113 Appeal number(s): NOA 25 of 2021 File number(s): BRC 8532 of 2019 Judgment of: STRICKLAND, AUSTIN & BAUMANN JJ Date of judgment: 2 September 2021 Catchwords: FAMILY LAW – APPEAL – Parental responsibility – Litigation guardian – Whether the primary judge erred in vesting a solicitor with parental responsibility for the children for the limited purpose of instructing lawyers to act on their behalf in their tort claims against the mother – Whether the primary judge failed to give adequate weight to evidence adduced by the father – Whether the inferences drawn by the primary judge were “wrong” – Whether the primary judge erred at law by vesting the solicitor, rather than the father, with parental responsibility for the limited purpose – Where no error is identified – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 61C, 61D, 64B(2), 64C, 65C, 65DAC, 65G(1A) 65P, 117(2A)
Motor Accident Insurance Act 1994 (Qld) ss 44, 52, 53
Uniform Civil Procedure Rules 1999 (Qld) rr 93, 94, 95
Cases cited: Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229;
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Maldera v Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Scott & Scott (1994) FLC 92-457; [1994] FamCA 12
Valentine & Lacerra (2013) FLC 93-539; [2013] FamCAFC 53
Vallans v Vallans (2019) 60 Fam LR 193; [2019] FamCAFC 260
VR & RR (2002) FLC 93-099; [2002] FamCA 320
Number of paragraphs: 57 Date of hearing: 23 August 2021 Place: Heard in Brisbane (via video link), delivered in Newcastle Counsel for the Appellant: Mr Arnold Solicitor for the Appellant: Swanwick Murray Roche Counsel for the First Respondent: Dr Brasch QC with Ms Firth Solicitor for the First Respondent: Damien Greer Lawyers The Second Respondent: Litigant in person ORDERS
NOA 25 of 2021
BRC 8532 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR AGAMBAR
AppellantAND: MS AGAMBAR
First Respondent
MR B
Second Respondent
ORDER MADE BY:
STRICKLAND, AUSTIN & BAUMANN JJ
DATE OF ORDER:
2 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 9 August 2021 be dismissed.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of and incidental to the appeal in the fixed sum of $10,000.
Note: The form of the order is subject to the entry in…
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CaseChat Overview and Summary
In the case of Agambar & Agambar, the father appeals the orders made by the Family Court, which the mother resists. Mr B was joined in the appeal but chose not to participate and submit to the Court’s decision. The father filed an Application in Appeal seeking permission to adduce as evidence in the appeal the affidavit of Mr Terrence John Tummon sworn on 21 June 2021. The mother did not contest the lateness of the application, and the court overlooked the anomaly of not seeking leave to rely on the affidavit of Mr C sworn on 9 August 2021. The father's application to present further evidence was denied, as the evidence did not fulfil the purpose intended to buttress the complaint within Ground 3 of the appeal. Ground 3 complained of an alleged legal error committed by the primary judge in favouring Mr B rather than the father as the recipient of limited parental responsibility for the children to prosecute their tort claims against the mother. The court found the father's appeal unsuccessful, and in the event of dismissal, the mother sought costs against the father.
The legal issues in this case pertain to the father's appeal against the orders made by the Family Court, specifically concerning the allocation of parental responsibility for the children to prosecute their tort claims against the mother. The father's application to adduce further evidence in the form of an affidavit was denied, as it did not fulfil the purpose intended to buttress the complaint within Ground 3 of the appeal. The court considered the father's appeal unsuccessful and found that the mother should be awarded party/party costs of the appeal, which will be fixed at $10,000, at the lower end of the range she claimed.
The court's reasoning was based on the evidence presented in the appeal, which did not fulfil the purpose intended to buttress the complaint within Ground 3 of the appeal. The father's complaint about the primary judge's decision to favour Mr B rather than the father as the recipient of limited parental responsibility for the children to prosecute their tort claims against the mother was deemed unsuccessful. As the appeal was wholly unsuccessful, and the father's financial circumstances were not so modest as to dissuade him from bringing the appeal and risking the significant costs he incurred with his own lawyers, the father should meet the mother's party/party costs of the appeal.
The final orders of the court were that the appeal is dismissed, and in the event of dismissal, the father should meet the mother's party/party costs of the appeal, which will be fixed at $10,000, at the lower end of the range she claimed. The father's financial circumstances were not so modest as to dissuade him from bringing the appeal and risking the significant costs he incurred with his own lawyers.
The legal issues in this case pertain to the father's appeal against the orders made by the Family Court, specifically concerning the allocation of parental responsibility for the children to prosecute their tort claims against the mother. The father's application to adduce further evidence in the form of an affidavit was denied, as it did not fulfil the purpose intended to buttress the complaint within Ground 3 of the appeal. The court considered the father's appeal unsuccessful and found that the mother should be awarded party/party costs of the appeal, which will be fixed at $10,000, at the lower end of the range she claimed.
The court's reasoning was based on the evidence presented in the appeal, which did not fulfil the purpose intended to buttress the complaint within Ground 3 of the appeal. The father's complaint about the primary judge's decision to favour Mr B rather than the father as the recipient of limited parental responsibility for the children to prosecute their tort claims against the mother was deemed unsuccessful. As the appeal was wholly unsuccessful, and the father's financial circumstances were not so modest as to dissuade him from bringing the appeal and risking the significant costs he incurred with his own lawyers, the father should meet the mother's party/party costs of the appeal.
The final orders of the court were that the appeal is dismissed, and in the event of dismissal, the father should meet the mother's party/party costs of the appeal, which will be fixed at $10,000, at the lower end of the range she claimed. The father's financial circumstances were not so modest as to dissuade him from bringing the appeal and risking the significant costs he incurred with his own lawyers.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The father now appeals from the orders by way of an Amended Notice of Appeal filed on 16 July 2021, which the mother resists. Mr B was joined to the appeal and appeared, but chose not to participate and to submit to the Court’s decision.APPLICATION TO ADDUCE FURTHER EVIDENCE On 9 August 2021, the father filed an Application in an Appeal seeking permission to adduce as evidence in the appeal the affidavit of Mr Terrence John Tummon sworn on 21 June 2021. Whether or not the application was filed slightly late, the mother did not contend such lateness should preclude it from being entertained. An affidavit sworn by Mr C on 9 August 2021 was read in support of the application even though, curiously, leave was not sought to additionally rely upon that affidavit, which anomaly we are prepared to overlook. Mr Tummon’s affidavit was annexed to Mr Lipke’s affidavit, which Mr Lipke deposed to having read. The evidence proves that Mr Tummon conversed with Mr B on 14 May 2021, when Mr B disclosed his intention to withdraw Mr Lipke’s instructions in the children’s tort claims and re-instruct another solicitor in his place. Mr Lipke deposed how, if that occurred, more legal costs would be incurred by the new solicitor having to acquaint him or herself with the progress in the tort proceedings thus far. Mr Lipke asserted such evidence was intended to buttress the complaint agitated by the father within Ground 3, but it does not fulfil that purpose. Ground 3 complains of alleged legal error committed by the primary judge in making orders favouring Mr B rather than the father as the recipient of limited parental responsibility for the children to prosecute their tort claims against the mother. It was never in doubt before the primary judge that, if Mr B was the favoured choice, he might withdraw instructions from Mr Lipke and re-instruct a different solicitor, so Mr Tummon’s confirmatory evidence adds nothing. It would almost certainly follow that the change of legal representation would incur some extra legal expense, so Mr Lipke’s evidence added nothing either. Mr Lipke did not purport to quantify the extra cost, aside from saying it “can occasion substantial cost”. Perhaps it can, but if he was purporting to imply it would be so substantial as to be a prohibitive factor in the decision required of the primary judge in this instance, such an implication was liable to be controversial and it ought then have been evidence the father led before the primary judge so the mother had the chance to meet it. Her inability to do so in the appeal militates against its reception (CDJ v VAJ (1998) 197 CLR 172 at [55], [114], [116] and [186.9]).THE APPEALGround 1 This ground comprises two separate elements which hardly seem compatible. The first complaint is that the primary judge erred by failing to decide all material issues raised by the father, which can be immediately rejected because the primary judge considered and decided the solitary issue joined between the parties. Whether the primary judge correctly decided the dispute is an altogether different question, but it cannot be validly asserted the primary judge left a justiciable controversy undecided, as this first part of the ground implies. Both parents wanted the primary judge to allocate parental responsibility for the children within a limited spectrum to one specific individual, which his Honour duly did. There was no other component to the father’s claim for relief, so there was no failure to exercise jurisdiction regularly invoked.
Decision
Reasons for decision
Ground 3 also fails.CONCLUSION The appeal is dismissed. In the event of dismissal of the appeal, the mother sought costs against the father. He formally opposed any such order, though his opposition was muted, as he primarily sought that costs follow the event in his favour if the appeal succeeded. Alternatively, the father proposed the order for costs should fall at the lower end of the range proposed by the mother due to his modest financial circumstances (s 117(2A)(a)). However, his financial circumstances were not so modest as to dissuade him from bringing the appeal and risking the significant costs he incurred with his own lawyers. The appeal was wholly unsuccessful (s 117(2A)(e)) and the father’s financial circumstances could not be construed as being materially worse than the mother’s. As the primary carer of the parents’ surviving disabled children with few assets and modest income, she can ill afford to waste expenditure vindicating the orders under appeal. We consider the father should meet the mother’s party/party costs of the appeal. Such costs will be fixed at $10,000, which figure is at the lower end of the range she claimed.
Ratio Decidendi
Legal Principle Established
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