Ansilda & Hartford
[2009] FamCAFC 128
•17 July 2009
FAMILY COURT OF AUSTRALIA
| ANSILDA & HARTFORD | [2009] FamCAFC 128 |
| FAMILY LAW - APPEAL – application for security for costs – Appellant impecunious – third party paying Appellant’s legal expenses – prospects of success of appeal – bona fides of appeal – whether an order for costs would stifle the appeal – Appellant to pay security for costs. FAMILY LAW – APPEAL - Application for expedition – no discrete aspect of this case that demonstrates why the hearing should be expedited and thus gain priority over other cases – application dismissed. |
| Family Law Act 1975 (Cth) Federal Court of Australia Act 1976 (Cth) |
| Adult Guardian and Mother’s Parents v B and Child’s Representative (2002) FLC 93-116 Hartford & Ansilda (No. 3) [2008] FamCA 602 Jones and Jones (2001) FLC 93-080 Stapleton and Bryant [2009] FamCAFC 63 |
| APPELLANT: | Ms Ansilda |
| RESPONDENT: | Mr Hartford |
| FILE NUMBER: | MLC | 10686 | of | 2007 |
| APPEAL NUMBER: | SA | 9 | of | 2009 |
| DATE DELIVERED: | 17 July2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, O'Ryan & Stevenson JJ |
| HEARING DATE: | 13 July 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 January 2009 |
| LOWER COURT MNC: | [2009] FamCA 23 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Ackman QC, Ms McMillan |
| SOLICITOR FOR THE APPELLANT: | DKP Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Mawson SC, Mr Dickson |
| SOLICITOR FOR THE RESPONDENT: | Gillian Coote Family Law |
Orders
On or before 21 August 2009 the Appellant Mother lodge with the Registry Manager in the Melbourne Registry, Family Court of Australia the sum of $15,000 as security for costs of her appeal against the judgment of Brown J of 22 January 2009.
In the event that the Appellant Mother does not lodge the security as provided in Order 1 of these orders her appeal stands dismissed.
The application by the Appellant Mother for expedition of the hearing of her appeal be dismissed.
The application by the Respondent Father filed on 18 March 2009 is otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hartford & Ansilda is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 9 of 2009
File Number: MLC 10686 of 2007
| Ms Ansilda |
Appellant
And
| Mr Hartford |
Respondent
reasons for judgment
INTRODUCTION
There are two Applications in an Appeal before us for hearing. The first is by Mr Hartford (“the Father”) seeking an order that Ms Ansilda (“the Mother”) be required to lodge security in the sum of $42,000 for the costs which might be incurred by the Father in relation to an appeal by the Mother against final parenting orders made by Brown J on 22 January 2009. The Father also seeks an order that the Mother pay $7,000 pursuant to an order made by her Honour on 21 July 2008. He is also seeking leave to issue a subpoena to produce documents directed to the solicitors for the Mother. The second application is by the Mother seeking that the hearing of the appeal be expedited.
BACKGROUND
The proceedings commenced on 25 September 2007 and were thereafter placed in what for case management purposes is called the Magellan List. The proceedings have had a protracted history some of which was described by Brown J in reasons she delivered on 21 July 2008 in relation to an application by the Mother to vacate a listing for trial of the applications for final orders. In separate reasons also delivered on 21 July 2008 in relation to the costs of the Wife’s application her Honour said that the “case had been a fertile ground for litigation”.
On 21 July 2008 her Honour made the following orders:
(1)That the competing applications for final parenting orders in respect of the child [the child] born December, 2006, and the father’s application for the mother to be dealt with for contravention of orders, be adjourned for trial on 25 August, 2008.
(2)That the mother pay towards the father’s costs thrown away this day the sum of $7,000, and such costs be paid within three months hereof.
(3)That the costs of counsel for the independent children’s lawyer be fixed at $1,760 and reserved.
(4)That the Court cause a sealed copy of these orders and the reasons for judgment, to be sent to :
(a)the registrar of the Children’s Court, Melbourne; and
(b)the registrar of the Magistrates’ Court of Victoria at the Moorabbin Justice Centre;
with a request that they be brought to the attention of a court before whom an application for an intervention order is made which concerns (in any capacity) the mother, father or [the child].
(5)That the mother file and serve any affidavits on which she intends to rely by 18 August, 2008.
(6)That prior to the adjourned date Mr. [V] (who wrote the family report released to the parties herein) be permitted to read all reports prepared by Dr. [E] which are filed herein and all affidavits filed by or on behalf of a party since preparation of his family report.
(7)That the reasons for judgment this day be transcribed and copies made available to the parties.
(8)That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.
AND THE COURT NOTES
1.The solicitor for the mother then on the record filed a notice of ceasing to act on 10 July, 2008.
2.The mother advised the court that on or about 17 July, 2008 she made an application for legal aid which she believes will be determined within a week.
3.The mother advised that if legal aid is not granted she intends to approach family and friends to enable her to retain a solicitor.
4.The court was advised that an application brought by the mother in the Children’s Court at Melbourne seeking an intervention order in respect of [the child] has been adjourned to 25 August, 2008 and that applications brought by a member or members of Victoria Police seeking intervention orders, respectively, in respect of the mother and father has be adjourned to the Magistrates’ Court of Victoria, sitting at the Moorabbin Justice Centre, on 22 August, 2008. .
The Mother has not complied with order 2 nor made any effort to do so.
In her reasons of 21 July 2008 in relation to the application by the Father for costs (Hartford & Ansilda (No. 3) [2008] FamCA 602) her Honour said:
1.Earlier today I granted an application for an adjournment, made by the mother. The father seeks that she pay the costs thrown away. The ICL asks that her costs be reserved.
2.The general rule in this court, which is set out in s.117 of the Family Law Act 1975, is that parties to litigation pay their own costs. There is, however, provision for the court to make such costs orders as it finds just and proper. In deciding what orders to make, it must take into account the matters set out in s.117(2A) of the Act, one of which is the financial circumstances of the parties.
3.The mother has told me that her financial circumstances are not good. She receives child support from the fathers of two of her children. She says that she is not the registered proprietor of the home in which she and the children live. The court cannot conduct an inquiry into her financial circumstances. There is some reference to it in the material filed on her behalf by the two firms who have acted for her in the past.
4.The husband is engaged in property development.
5.Financial circumstances are not the only matter the court has to take into account. It must take into account the conduct of the parties in the proceedings and whether the proceedings were necessitated by the failure of a party to comply with previous orders. It can also take account of any other matter it considers relevant.
6.This matter was given priority for a very good reason. First, the child’s future needs to be determined. The court needs to decide whether she is going to live with her mother or her father and determine the time she is to spend with the parent with whom she does not primarily live. To do that it must make findings on numerous facts in issue, one of which is the mother’s allegation that the father has sexually abused the child.
7.Second, the case has been a fertile ground for litigation, and it is not good for children to have their parents embroiled in litigation. I appreciate it is stressful on parents too, but their stress impacts on their children. The Children’s Court and the Magistrates’ Court have adjourned proceedings, pending the determination of this trial.
8.The court has done everything it can to get this matter on for trial. The withdrawal of instructions by the mother from her former solicitors was advised at a pre‑hearing conference on 9 July. The solicitor who attended that conference, Mr [W], filed his notice of ceasing to act on 10 July 2008. It is now 21 July. The application for an adjournment was only made on 17 July, being last Thursday. It seems the application for legal aid was not filed until that Thursday. In my view, it was proper for the other parties to the litigation to proceed on the basis the case would proceed today.
9.I add that although represented until 10 July, the mother has not complied with directions requiring her to file affidavits.
10.In respect of the independent children's lawyer, I will do what is sought. The independent children's lawyer's counsel's costs will be fixed at $1,760 and reserved.
11.That is not the application made by the father; who seeks his costs. I find substance in his application. Counsel's fees alone are $8,500, and an instructing solicitor is present. I propose to round the figure down to $7,000, and order the mother contribute that sum towards the father’s costs of this day. There will be a stay of three months.
On 1 September 2008 the hearing of the applications for final parenting orders commenced before Brown J. The hearing ran for a total of six days and on 8 September 2008 her Honour reserved judgment. On 22 January 2009 her Honour delivered reasons and made 34 orders which included the following:
(1)That all previous parenting orders and injunctions in respect of the child [the child] born December, 2006 be discharged.
(2)That the father have sole parental responsibility for [the child].
(3)That the father consult the mother prior to making a decision about:
(a)the kindergarten or school in which to enrol [the child] and any subsequent change of kindergarten or school;
(b)any significant medical intervention for [the child] (save in an emergency and not including routine day-to-day medical intervention); and
(c)any proposed international travel with [the child].
(4)That [the child] live with the father.
(5)That the mother be and is hereby restrained, by herself, her servants and agents from removing [the child] from the father’s possession or the possession of any person with whom he has placed [the child], save pursuant to these or subsequent orders, or the father’s specific agreement.
(6)That until [the child] commences school, and subject to any agreement between the parties to the contrary, [the child] spend time with the mother as follows :
(a)each alternate weekend from 9:00 am. on Saturday until 5:00 pm. on Sunday, commencing on 31 January, 2009;
(b)from 9:00 am. until 5:00 pm. on each alternate Thursday, commencing on 5 February, 2009;
(c)from 9:00 am. on each alternate Monday until 5:00 pm. on the following Tuesday, commencing on 26 January, 2009;
(d)if [the child] would not otherwise be with the mother on Mothers’ Day, from 9:00 am. until 5:00 pm. on Mothers’ Day;
(e)if [the child] would not otherwise be with the mother on [the child]’s birthday, for four hours on her birthday at times to be agreed, and failing agreement from 10:00 am. until 2:00 pm.; and
(f)at such other times as are agreed between the parties.
(7) That upon [the child] commencing school and subject to any agreement between the parties to the contrary, [the child] spend time with the mother :
(a)during school terms, on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Tuesday, commencing on the first weekend in each school term;
(b)in the alternate week, from the conclusion of school on Monday until the commencement of school the following Tuesday;
(c)for one half of school holiday periods, at times to be agreed, and failing agreement :
(i)the first half in even years; and
(ii)the second half in odd years;
(d)for a period on [the child]’s birthday, at times to be agreed and, failing agreement :
(i)if the birthday falls on a school day, from the conclusion of the school day until 7:00 pm.; and
(ii)if the birthday falls on a non-school day from 10:00 am. until 2:00 pm.;
(e)if [the child] would not otherwise be with the mother on Mothers’ Day, from 9:00 am. to 5:00 pm. on Mothers’ Day; and
(f)at such other times as are agreed between the parties.
(8) That notwithstanding anything to the contrary in these orders, and subject to any agreement to the contrary between the parties, upon [the child] commencing school :
(a)the parent who does not have [the child] with him or her in the first half of the summer school holiday period shall spend time with [the child] from 2:00 pm. Christmas Day until 7:00 pm. Boxing Day;
(b)if [the child] would not otherwise live with the father on Fathers’ Day, the father shall spend time with her from 9:00 am. until 5:00 pm. on Fathers’ Day; and
(c)changeovers which occur at the commencement or conclusion of a school day take place at the school.
(9)That the mother communicate with [the child] by telephone, at reasonable times, PROVIDED THAT save with the consent of the father, the mother not telephone [the child] more than once each day.
(10)That on or before 30 January, 2009 each of the parties do all things reasonably necessary to apply to use [M Contact Centre], for changeovers, and as soon as a place becomes available at [M Centre], but subject always to agreement between the parties to the contrary, changeovers which occur during [M Centre] hours of operation, take place at [M Centre], until [the child] turns four, and the father be responsible for the costs of changeover at [M Centre].
(11) That subject to any agreement between the parties to the contrary, and until [the child] turns four :
(a)changeovers prior to [M Centre] offering the parties a place in its changeover program; and
(b)changeovers which occur when [M Centre] is not open;
be undertaken by an independent person employed by Aiding and Caring Sitters Agency or other like professional agency and the person undertaking the changeovers deliver [the child] to the mother’s home at the commencement of a period of time with her and collect [the child] from the mother’s home at the conclusion of a period of time with her, and the father be responsible for all costs associated with this order.
(12)That upon [the child] turning four, and subject to any agreement to the contrary between the parties, changeovers occur at an agreed neutral venue and, failing agreement, at the McDonald’s Restaurant closest to the mother’s home.
In her reasons her Honour said:
1.[Mr Hartford] and [Ms Ansilda] have a daughter, [the child], who was born in December, 2006. The mother alleged that the father is a sexual predator who started sexually abusing [the child] when she was a tiny baby and continued to do so while the litigation was on foot. She alleged he has acted in a physically (and possibly sexually) inappropriate way with one of her sons from a previous marriage and has been physically and verbally abusive to her. Until final submissions, it was her case that [the child] was at risk of further sexual abuse if allowed to spend any unsupervised time with her father. She sought an order that [the child] continue to live with her and she have sole parental responsibility for her.
2.As final submissions were about to commence, after a six day trial, counsel for the mother informed the court that she would be making a submission that the mother “needs to turn the page”. She said the mother “accepts she needs to move forward on the basis the child has not been sexually abused” and sought to reopen her case to call evidence about a changeover the previous day. By consent, four statements were read into the evidence and accepted as true. I will refer to them later.
3.In final submissions, it was put that the mother conceded that the evidence before the court was not sufficient to support a finding, at the requisite standard of proof, that the father poses an unacceptable risk to [the child]. She submitted the court should order the immediate introduction of unsupervised time with [the child], on an overnight basis. Asked how much time, counsel said she had no specific instructions and was content to leave that question to the court but then submitted that “up to five overnights per fortnight” could be envisaged.
4.It was the mother’s submission that orders for the father’s time with [the child] should be interim orders and the case should be brought back for review in twelve months. The mother would submit to any mental health treatment recommended by the independent children’s lawyer and did not oppose a number of orders sought by the ICL, including orders for changeovers to be at a contact centre, injunctions aimed at protecting [the child] from direct implication in her parents’ dispute, and orders to ensure each party kept the other advised of contact details and used a communication book.
5.Despite this apparent capitulation, counsel for the mother submitted that the father fell short as a credible witness and that the court could find he had acted in some of the ways alleged by the mother.
Her Honour also said:
36.In this case, I must find it more probable than not that the mother was motivated not by a desire to protect her daughter from the harm alleged, but by a desire to punish the father, and that [the child] became the vehicle by which to inflict that punishment. I am satisfied she endeavoured to tailor her evidence to suit the case she wanted to make and did so deliberately, with the aim of persuading the court that the father is a violent sexual predator, who has abused [the child] since she was a baby and continued to do so when the court allowed him to have unsupervised time with her. To this end, she reconstructed events as if writing and editing a script; she deleted words and actions which did her no credit and contradicted the case she sought to make; she inserted fictional vignettes; she rewrote previously written accounts, on realising inconsistencies within them; she put words into the mouths of bit players.
In her reasons at [129] – [202] her Honour dealt with allegations of the Mother against the Father and concluded:
201.I do not find the father has sexually abused [the child]. Nor do I find that [the child] is at risk of sexual abuse by him.
202.I must find that the mother’s behaviour is emotionally abusive of [the child] and that there is little likelihood of change if [the child] continues to live with her, as it is likely she will continue to sexualise behaviour which is objectively unexceptional and, in so doing, sexualise [the child], who may grow up to believe she has been abused by the father.
In relation to what her Honour had earlier described as “capitulation” on the last day of the trial by the Mother, her Honour observed:
233This change of heart, and of actions, was relied on by counsel for the mother as signifying a change in her attitude. There is no doubt that it would be to [the child]’s advantage to see her parents co-operating at changeovers, and to [X]’s advantage to be released from that adult role. Nevertheless, the scepticism expressed by counsel for the father is explicable. Suddenly, one might say miraculously, the physical and psychological symptoms which precluded the mother playing this role in the months prior to trial disappeared or were rendered manageable, on the cusp of final submissions. Until then, it suited the mother’s case to be so disabled; the symptoms she described emphasised her conviction of abuse and the harm which would be done to [the child] were she to continue to have unsupervised contact with the father. Faced with unpalatable evidence from the experts, the symptoms resolved. The symptoms were either invented or functional. Dr. [E] noted the existence of such non-organic complaints when describing hysteria.
Her Honour dealt with all relevant statutory considerations and at [251] concluded:
251.I am satisfied that [the child]’s best interests demand that she live primarily with her father and spend regular and frequent time with her mother and the siblings who live in her mother’s home. If this does not occur the prognosis for [the child]’s relationship with her father is grim; she will live in an environment in which she is poisoned against him and may grow up believing she has been subjected to significant sexual abuse, abuse which did not occur. She is entitled to a meaningful relationship with both her parents, as long as that can be done in a way which renders her safe and secure. In my judgment, it is only by living primarily with the father that she will be able to have those meaningful relationships. It is true that the father has not been a fulltime parent but the court can be confident he has the capacity to provide for [the child]’s physical, emotional and intellectual needs, and that he will deal sensitively with any distress which manifests as a result of the significant change to her living arrangements.
On 18 February 2009 the Mother filed a Notice of Appeal.
On 18 March 2009 the Father filed the Application in an Appeal seeking the following orders:
1.The Appeal be stayed pending the payment by the Appellant to the Respondent’s solicitors of:
a) $7,000 pursuant to the order of Brown J of 21 July 2007; and
b) $42,000 by way of security for costs of the Appeal
2.Further or in the alternative, the Appellant’s Notice of Appeal filed 18 February 2009 be summarily dismissed.
3.That leave be granted to the Respondent to file and serve a subpoena directed to the Appellant’s solicitors seeking production of all documents relating to fees billed to and paid by or on behalf of the Appellant.
4.The Appellant pay the Respondent’s costs of and incidental to this Application.
During submissions, senior counsel for the Father said that the Father would not pursue Order 2 set out above.
In support of the above application an affidavit was sworn by Gillian Margaret Coote, the solicitor for the Father, and she deposed:
3.My client was charged in accordance with the costs agreement at the rate of $400 per hour plus GST for my time. Now produced and shown to me and marked with the letters "GMC 1" is a copy of the costs agreement signed by my client.
4.Mr Mawson, senior counsel was the barrister Briefed for my client in the Family Court proceedings before Justice Brown. Mr Mawson also appeared in the contested intervention proceedings in the Children's Court. Mr Wood appeared as junior to Mr Mawson in the Family Court proceedings and also on behalf of [Mr Hartford] to contest the intervention Order proceedings which took place over a number of days at Moorabbin Magistrates' Court last year.
5.My client has instructed me to retain both those Counsel to conduct this appeal given their intimate knowledge of the case.
6.Mr Mawson's daily fee is $5,500 and Mr Wood's is $3,500. Each charge hourly fees for conferring and preparation, at the rates of $600 per hour and $400 per hour respectively.
7.I have recently been contacted by the mother's current solicitors to assist them in the compilation of the Draft Appeal Book Index. Now produced and shown to me and marked with the letters "GMC2" is a copy of that Draft Index.
8.It is apparent from the extensive nature of the Draft Index that the Appeal Books will be lengthy. The proceedings ran over six days and there will be significant transcript to be obtained by the Appellant to complete the preparation of the Appeal Books.
9.The Notice of Appeal which has been filed on behalf of the mother (on 18 February 2009) is in very general terms which do not disclose any proper grounds of Appeal. Based on the material which is currently available, it is unlikely in my view that the Appeal will be successful.
10.It is also difficult to anticipate the likely length of the appeal itself from those grounds. Given there were six days of evidence, it may be that the appeal itself will proceed for longer than one day but certainly less than two days.
11.I am advised by counsel that they expect to require no less than two days each in preparation of the Appeal, including perusal of the (likely lengthy) appeal books.
12.On that basis I would expect Counsels fees for Mr Mawson alone to be up to $22.000 and for Mr Wood to be up to $12,000.
13.There will also be my fees in preparation for the Appeal and instruction and the hearing of it. I would expect those attendances, including any necessary attendances in the directions for the preparation of the Appeal, and like matters, to require not less than 30 hours of my time which is charged at the rate of $400 per hour plus GST a total of $12,000. I understand that in the event that the Appeal was unsuccessful and in order for costs to be made in favour of my client, it would more likely to be on a party /party basis. On that basis, my client's application seeks the sum of $42,000 by way of security of costs for that Costs order
On 19 May 2009 an application in an appeal was filed by the Mother seeking the following orders:
1.The Respondent’s application in an appeal filed 18 March 2009 be expedited.
2.The Appeal be expedited.
3.Costs reserved.
The Mother’s solicitor Bruce Gordon Pippett swore an affidavit on 15 May 2009 and he deposed:
5.The substance of the Final Orders was that the Child would live with the Father and spend time with the Mother. The Final Orders, in effect, reversed the Child's living arrangements which had been in place since her birth.
6.Following the conclusion of the trial, and pending the Court handing down its reasons for decision, Her Honour ordered on an interim basis that the Child continue to live with the Mother and spend time with the Father (effectively maintaining the Child's living arrangements which had subsisted prior to the hearing).
7.At the time the Final Orders were made, the Child was aged two years and one month.
8.The Final Orders had the effect of separating the Child from her three elder, half-siblings.
9.The orders which the Mother will seek on appeal include an order that the Child live with the Mother and spend time with the Father (effectively reversing the Final Orders and returning the Child's living arrangements which were in place at all times prior to 22 January 2009.
10.In general terms, the Mother's case on appeal will rely, inter alia, on the adverse consequences for the Child of her removal from the family environment in which she had lived all of her life prior to the Final Orders.
11.As at the date of this affidavit, the Child has lived with the Father for approximately four months pursuant to the Final Orders.
12.On or about 18 March 2009, the Father issued an application for orders, inter alia, that the Mother provide security for the Father's costs of the appeal.
13.I am informed by John Werner of Counsel as follows:
(a) The Father's application may need to be determined before the appeal itself.
(b) It is likely that the Father's application and appeal itself would have to be determined in separate sittings of the Full Court in Melbourne.
(c) The Full Court is sitting in Melbourne in July 2009 and in October 2009.
14.I am concerned that if the appeal is not heard until October 2009, the delay in the hearing of the appeal (and hence the nine month period during which the child will have lived with the Father) will, in effect, render the appeal nugatory.
15.The appeal books were filed on 15 May 2009.
On 16 June 2009 the Mother filed an Amended Notice of Appeal and the grounds of appeal are:
1.The learned trial judge erred in exercising her discretion to order a change of residence. Her Honour should have ordered that the Child live with the Mother on an interim basis for a period of a further 12 months.
2.The orders made were against the evidence and against the weight of the evidence. The learned trial judge failed to have regard, or sufficient regard to:
(a) The age of the Child;
(b) The quality and significance of the Child’s relationship with her siblings and extended family;
(c) The undisputed evidence that the Child had always lived with the Mother;
(d) The Mother’s change of position on the final day of the trial.
(e) The period of nearly twenty weeks between the date of the Mother’s final submission (8 September 2008) and delivery of judgment (22 January 2009)
3.The learned trial judge erred in all the circumstances in exercising her discretion to order a change of residence without requiring further evidence as to events which had taken place between 8 September 2008 and 22 January 2009 which were relevant to the Mother’s asserted change of position.
4.The learned trial judge’s finding that the Mother’s conduct had exposed the Child to psychological harm was against the evidence and the weight of the evidence.
5.The learned trial judge erred in not seeking evidence as to the present state of the parties relationship before determining that the presumption of equal shared parental responsibility did not apply and/or was rebutted.
6.In the alternative, the learned trial judge erred in the exercise of her discretion to the extent that Her Honour ordered that the Child spend only one overnight per week with the Mother. Her Honour should have ordered, inter alia, that the Child spend time with the Mother for not less than five overnights per week.
As we have already observed because of the Amended Notice of Appeal the Father no longer pursues Order 2 of his application filed on 18 March 2009. On behalf of the Mother it was submitted that the appeal “has a very real prospect of success” and that “[i]t certainly cannot be said that the appeal is doomed to failure. (emphasis in original)
In the written submissions of the Mother, for the purposes of her appeal, the thrust of her complaint about the judgment of Brown J was summarised as follows. On behalf of the Mother it was submitted that the child is not yet three years of age. It was submitted that until orders were made that the child live with the Father, the Mother had been the primary caregiver and it was common ground that her primary attachment was to the Mother. On 22 January 2009 the child had never spent a night away from the Mother. It was submitted that the orders of 18 April 2008 provided inter alia that the Father spend time with the child each Tuesday and Thursday from 9:00 am until 1:00 pm and each Sunday from 9:00 am until 5:00 pm.
It was submitted on behalf of the Mother that her children of her first and second marriages lived with her and the trial Judge accepted the evidence of the Family Consultant that the child had “good interaction” with her brothers. (emphasis in original)
It was submitted on behalf of the Mother that as a result of the orders made by Brown J the child who had until that time lived with the Mother was placed in the full time care of the Father and thereafter spending only one night per week overnight and each alternate Thursday with the Mother; and that the Father should have sole parental responsibility of the child.
It was submitted on behalf of the Mother that whereas Brown J on 22 January 2009 made negative findings against the Mother, on 8 September 2008 her Honour had been informed by counsel for the Mother in the course of his final address that “the Mother accepts that she needs to turn the page and move forward on the basis that [the father] does not pose an unreasonable risk of sexual abuse to [the child]” and that “she needs to proceed with the rest of her life on that basis” and that “that shift in mentality started before today.” (emphasis in original)
It was submitted on behalf of the Mother that subject to her being granted leave to adduce further evidence, she asserts that in the 20 weeks between 8 September 2008 and when judgment was delivered on 22 January 2009 she and the Father had a substantially cordial relationship including meeting with the child for coffee, co-operatively making arrangements in relation to the child’s time with the Father and attending to her medical requirements following a medical emergency.
It was submitted on behalf of the Mother that before delivering judgment on 22 January 2009, Brown J did not seek nor enquire or request any further information about the Mother’s conduct or attitude in relation to her compliance with the extant orders in the preceding 20 weeks.
We observe that in the Amended Notice of Appeal in the event that the appeal succeeds the Mother seeks the following orders:
Preferred proposal
1.The matter be remitted for determination and further hearing of fresh evidence.
Until further order:
2.The parties have equal shared parental responsibility.
3.The Child, [the child], born December 2006, live with the Mother.
4.The Father spend time with the Child as ordered by the Court.
5.The proceeding is adjourned to a date not later than 12 months following determination of the appeal for further consideration of final orders in the proceedings.
6.Liberty to apply
7.Such further order the Court thinks fit.
Alternative proposal
1.The matter be remitted for determination and further hearing of fresh evidence.
2.The parties have equal shared parental responsibility.
3.The Child, [the child], born December 2006, live with the Father.
4.The Mother spend time with the Child as follows:
(a) on alternate weekends:
(i)In week 1 – from 5:00 pm on Friday to 5:00 pm Sunday.
(ii)In week 2 – from 5:00 pm on Friday to 5:00 pm on Saturday.
(b) Every Wednesday from 9:00 am to 5:00 pm.
5.Such further order the Court thinks fit.
Also on 16 June 2009 the Mother filed a Response to the Father’s application for security for costs seeking that it be dismissed. In support of this response an affidavit was sworn by the Mother on 10 June 2009 in which she deposed that:
2.At the time of the trial before Justice Brown, I owned no substantial assets other than my car. My sole source of income was the child support and maintenance payments I received, respectively, from [Mr Hartford] and my ex-husband, [Mr B] . The house in which I lived with my children was, and still is, owned by [Mr B].
3.Since the Final Orders were made, [Mr Hartford]’s child support payments to me ceased entirely. At present, and at all times since the Final Orders were made, my only source of income has been monthly maintenance payments of $3,500 from [Mr B], plus monthly Child Support payments from [Mr LB] (my first husband) of $100 per month, plus Family Assistance benefits from Centrelink. I still live in the same house. I have not acquired any substantial assets.
4.My appeal is being funded by [Mr B] entirely.
5.The cost of my trial was funded in the first instance by two of my relatives, from whom I borrowed a total of $20,000 in cash. I paid that money to my solicitor, Bruce Pippett, in one lump sum payment before the trial.
6.I have since repaid all but $1,000 of it by means of the lump sum Centrelink payments which I have received since late 2008. Most of this was made up of entitlements claimed retrospectively and paid in arrears. There is nothing left of those payments.
7.I have outstanding debts to the Sheriff’s Office of about $4,000 for unpaid traffic infringements. The Sheriff has agreed to repayments totalling $160 per month.
8.I have outstanding debts to Origin Energy totalling about $1,300 for unpaid gas and electricity accounts. Origin has agreed to accept repayments of $200 per month.
9.I have a current outstanding credit card debt of around $10,000 spread over two Commonwealth Bank Mastercards. I am making total repayments of $230 per month.
10.I have not paid [Mr Hartord] any portion of the $7,000 costs order which was made against me by Her Honour Justice Brown on 21 July 2008. I intend to do so when I am financially capable of doing so. However, I do not know when I can realistically expect to be in that position. Certainly I have no capacity to pay it now except by way of small, periodic installments.
On 29 June 2009 an affidavit was filed on behalf of the Mother by Mr B, who is the Mother’s first Husband and he deposed:
2.I am the biological father of [Ms Ansilda]’s second and third children, [Q] and [L]. During the course of my marriage to [Ms Ansilda], I was also the principal father figure and male role model to her eldest son, [X] (whose biological father lived in Adelaide). [X] adopted my surname while [Ms Ansilda] and I were married and he continues to use it today. I have a close relationship with each of [Ms Ansilda, X, Q and L].
3.I have read the affidavit of [Ms Ansilda], sworn 16 June 2009, and filed in this appeal in response to [Mr Hartford]’s application. I confirm the contents of paragraphs 2, 3 and 4 are correct, to the extent that they pertain to me.
4.It is within my financial capacity to fund [Ms Ansilda]’s appeal. I have done so to this point and I intend to continue doing so. l have confidence in [Ms Ansilda] as a mother and I support her efforts in prosecuting the appeal.
5.I am not willing to provide security for [Mr Hartford] costs of the appeal.
On 10 July 2009 the Mother swore a Financial Statement. She deposed that she has a total weekly income of $1,319 which comprises maintenance, child support and social security. The Mother disclosed property interests of a total value of $21,203 which included a motor vehicle of a value of $20,000. The Mother disclosed liabilities of $210,000 which includes an amount of $200,000 as a debt to Mr B. The Mother did not include any liability for unpaid legal costs. The amount of $7,000 which the Mother owed to the Father because of an order of the court was not included and also the amount of $4,000 which in her affidavit of 10 June 2009 the Mother contended she owed for unpaid traffic infringements were not included.
RELEVANT PRINCIPLES
Section 117(1) of the Family Law Act 1975 (Cth) provides that, subject to sub-section (2) and ss 117AA and 118, each party to proceedings under the Act shall bear his or her own costs. Section 117(2) provides that if the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to sub-section (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. Section 117(2A) provides that in considering what order (if any) should be made under sub-section (2) the court shall have regard to the matters set out in paragraphs (a) to (g).
In Luadaka v Luadaka (1998) FLC 92-830 (“Luadaka”) the Full Court (Ellis, Finn and O’Ryan JJ) said:
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.
The Full Court in Luadaka extensively discussed the power to order security for costs and the principles to be applied together with a discussion of previous decisions both in the Family Court and in other courts. The Court pointed out that s 117(2A) of the Family Law Act is not exclusively directed to security for costs and at 88,375-376 that the criteria include “such other matters as the court considers relevant”. The Court concluded that other matters which may be relevant in relation to security for costs include the means of the applicant to satisfy an order for costs if unsuccessful; the prospect of success of the application; whether the applicant’s claim is made bona fide; whether the order for costs would be oppressive or stifle the litigation; whether the litigation involves a matter of public importance; whether there has been delay in bringing the application for security; any difficulties in enforcing an order for costs; and the amount of costs to be incurred: See also Jones and Jones (2001) FLC 93-080 (“Jones”) per Full Court (Ellis, Kay and Mullane JJ); Adult Guardian and Mother’s Parents v B and Child’s Representative (2002) FLC 93-116 (“The Adult Guardian”) per Full Court (Finn, Holden and Dessau JJ); Simpson v McGueren (2005) FLC 93-223 (“Simpson v McGueren”) per Full Court (Bryant CJ, Finn and Coleman JJ); D and D (2006) FLC 93-260 per Full Court (Finn, Coleman and May JJ); Beaumont and Cross [2007] FamCA 1129 per Full Court (Faulks DCJ, Kay and Boland JJ); Rodgens and Pisoni [2007] FamCA 1510 per Full Court (Bryant CJ, Finn and Mullane JJ); Fennessy and Gregorian [2008] FamCAFC 89 (“Fennessy and Gregorian) per Full Court (Coleman, Boland and Thackray JJ); Halsbury and Halsbury [2008] FamCAFC 170 (“Halsbury”) per Full Court (Finn, Boland and Murphy JJ); and Stapleton and Bryant [2009] FamCAFC 63 (“Stapleton and Bryant”) per Full Court (May, Boland and Stevenson JJ).
Part 19.3 of the Family Law Rules (“the Rules”) deals with security for costs. We observe that a number of the matters described by the Full Court in Luadaka have now been set out in r 19.05(2) which provides that in deciding whether to make an order, the Court may consider any of the following matters:
(a) the applicant's financial means;
(b) the prospects of success or merits of the application;
(c) the genuineness of the application;
(d) whether the applicant's lack of financial means was caused by the respondent's conduct;
(e) whether an order for security for costs would be oppressive or would stifle the case;
(f) whether the case involves a matter of public importance;
(g) whether a party has an order, in the same or another case (including a case in another court), against the other party for costs that remains unpaid;
(h) whether the applicant ordinarily resides outside Australia;
(i) the likely costs of the case;
(j) whether the applicant is a corporation;
(k) whether a party is receiving legal aid.
This case also raised for consideration the significance of the fact that an appellant is impecunious in the context of an application for security for costs in relation to the appeal. In the written submissions of the Father reference was made to the decision of the Full Court in Jones in which the Ellis and Mullane JJ said:
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. (citations omitted)
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.
In The Adult Guardian the Full Court said:
71.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.
72.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.
The Wife relied upon what the Full Court said in Simpson v McGueren. In that case the Full Court dismissed the mother’s application for security for costs notwithstanding findings that the father’s appeal had little prospect of success and that the father had not demonstrated that he would be unable to satisfy an order for security for costs on the basis of their concern that the making of such and order could preclude the father pursuing his appeal. The Full Court said at 79,688:
Nevertheless, the right of access to the Court is an important right and any attempt to restrict that right requires careful scrutiny.
Notwithstanding the matters which we have identified as supporting making an order for security for costs, we are not persuaded that such outcome would be justified in all the circumstances. On the evidence before us, we are concerned that the making of such order could preclude the father from pursuing his appeal against orders which, inter alia, deprived him of face to face contact with his child, and also restricts his future access to this Court. Not without considerable reservations we thus decline to grant the mother's application.
We observe that in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628 Madgwick J in dealing with an application under s 56 of the Federal Court of Australia Act 1976 (Cth) which provides for security for costs on appeal said:
[5] There has long been a rule of practice and justice that poverty is no bar to a litigant. However, the view is taken that there was an exception to this salutary rule in the case of appeals on the basis that the appellant had already had the benefit of a decision of a court. Thus, an insolvent party unsuccessful at the first instance, but seeking to appeal, had not been shut out from the courts on account impecuniosity but, as Ballam LJ put it in Cowell v Taylor (1885) 31 ChD 34 at 38, would be “…only prevented, if he cannot find security, from dragging his opponent from one Court to another”.
[6] The correct, modern approach, I think, was set out in Australian Solar Mesh Sales Pty Ltd v Anderson (1999) 48 IPR 15 at [11] by Sackville J. That is, that the impecuniosity of the appellant enlivens the power of the Court to make an order for security for costs pursuant to s 56 of the Act, but it remains necessary to consider whether, as a matter of discretion, the Court should make an order in favour of the respondents.
This case does raise for consideration the balancing exercise of requiring a respondent to defend proceedings against an impecunious applicant where there is little likelihood of any costs order being satisfied with on the other hand the undesirability of impecuniosity in itself denying a right to bring proceedings. Aside from the other matters which the court is required to take into account in that situation, particular importance attaches to an assessment of the likelihood of success and the terms of s 117(1) that, subject to certain matters, each party to proceedings under the Family Law Act shall bear his or her own costs.
RELEVANT MATTERS
On behalf of the Father submissions were made in relation to various matters which we will hereafter identify in the order in which they appeared in the submissions.
On behalf of the Mother it was submitted that her appeal is bona fide and has merit and to require the mother to pay the outstanding costs and make the order for security for costs sought by the Father would be “oppressive and/or would stifle the case”. (emphasis in original)
Financial means
Although we were not expressly informed, we would understand from the way the matter was argued that neither party is in receipt of a grant of legal aid.
It was submitted on behalf of the Father that the evidence of the financial means of the Mother is set out in her affidavit of 16 June 2009 and that she owns her car. It was also submitted that the affidavit reveals that the Mother has, since September 2008, repaid $19,000 of the $20,000 she borrowed from family to fund the trial and that those repayments were made at a time when she well knew she had an unpaid costs order in the Father’s favour of $7,000. We have already described what was disclosed by the Mother in her recent Financial Statement.
It was submitted on behalf of the Mother that she has no assets of any significance. She lives in a house owned by Mr B and her sole source of income is child support and maintenance payments of $3,500 per month paid by Mr B and Family Assistance benefits from Centrelink of $100 per month. The Mother has significant liabilities. The costs of the Mother’s appeal are being met by Mr B.
It was submitted on behalf of the Mother that she has no capacity to pay the $7000 costs ordered to be paid by Brown J on 21 July 2008 or to make the payment sought by the Father by way of security for his costs. It was submitted that there is no evidence as to the Father’s financial capacity to meet his costs.
It was submitted on behalf of the Mother that her inability to satisfy an order for costs in favour of the Father in the event that the appeals fails must be balanced against her inability to meet an order for security for costs which would prevent her pursuing her appeal.
We have already observed that as a general rule, mere impecuniosity of an appellant such as the Mother will not of itself be a basis for ordering the Mother to provide security. However there is an exception to the general rule in the case of appeals. It is therefore relevant to take into account the means of the Mother to satisfy an order for costs if she is unsuccessful.
In this case, given the Mother is impecunious we accept that she would not be able to pay the costs awarded against her if her appeal was dismissed. It is a significant matter which we take into account, that the Father may be left without a remedy in respect of a costs order if the appeal is dismissed and an order for costs is made.
Although we have no evidence as to the precise quantum of costs incurred by both parties in relation to the proceedings in the Family Court and elsewhere we accept that the costs have been very significant. We also have no evidence before us as to the current financial circumstances of the Father but we accept that to date he has had to bear significant costs.
Notwithstanding the paucity of evidence we do not accept that it would only be in cases where the applicant for security did not have the means to pay his or her own costs that an order would be made. We accept that an order may be made even if the applicant for security had the means to pay his or her own costs. In the circumstances of this case the financial circumstances of the Father are therefore of little relevance.
Prospects of success of the Appeal
It was submitted on behalf of the Father that the Appeal has limited prospects of success. It was submitted that while there are six grounds, they almost all come back to one proposition, namely that Brown J should have proceeded on the basis that the “change of heart” expressed by the Mother’s counsel in his closing submissions, but nowhere by the Mother in the evidence, was genuine. It was submitted that the Mother effectively asserts that her Honour should have elevated the evidence that the Mother had managed to deal with a changeover, being on the weekend before final submissions were made, above all of the other evidence as to her manipulative and mischievous conduct. Reliance was placed on what her Honour said at [233] in her reasons which we have set out above.
It was submitted on behalf of the Father that despite the supposed concession or change of heart, counsel for the Mother still made final submissions relating to each of the instances of alleged abuse and thus her Honour had to deal with the allegations. As we have already observed her Honour dealt with the allegations in her reasons at [129] – [202]. It was submitted that it was clear that the “concession” was a legal one, namely that if anything, the Mother accepted that her Honour would not make a finding of unacceptable risk, rather than the Mother accepting that there was no risk. It was submitted that on the assumption that the submissions were made on instructions, it is clear the Mother’s position in relation to her belief in the abuse had not changed at all.
It was submitted on behalf of the Father that to the extent that the Mother suggests her Honour should have invited further evidence given the delay between the end of the trial and the pronouncement of judgment, it was open to the Mother to make an application to reopen her case and adduce further evidence at any time before judgment. The Mother had earlier done so being shortly before final submissions and her Honour had allowed the reopening and adducing of limited further evidence. It was submitted that it was for the Mother to make the application to do so again, if she sought to, not for her Honour to invite it.
It was submitted on behalf of the Father that appeal Ground 5 of the Mother’s appeal relates to the order for sole parental responsibility. It was submitted that counsel for the Mother conceded in submissions that “with the parties completely unable to talk, that a residence order necessarily comes with a parental responsibility order” and thus this Ground has no merit.
It was submitted on behalf of the Father that her Honour took into account the other matters set out in the Notice of Appeal, namely the sibling relationships, and the fact that the Mother had been the primary caregiver, and weighed those matters up in the exercise of her discretion.
In conclusion on behalf of the Father it was submitted that the prospects of success of the appeal are limited.
Although ordinarily a detailed assessment of the likelihood of success or failure of the appeal will not be undertaken unless it can be demonstrated that there is a high probability of success or failure, it is relevant to consider the merits of the appeal and particularly this is so where as here the appellant is impecunious.
A consideration of her Honour’s reasons and the limited grounds of appeal suggest that there may only be four areas of complaint. First, the failure by the trial Judge to require further evidence as to what happened between 8 September 2008 and 22 January 2009 as a result of the “capitulation” by the Mother. Second, the failure of the trial Judge to take into account or give appropriate weight to the matters identified in grounds 2(a), (b) and (c). Third, the failure of the trial Judge to take into account the consequence of the “capitulation” by the Mother and in particular its relevance to the Mother’s attitude towards the relationship of the child and the Father. Fourth, error by the trial Judge in relation to the time that the Mother is to spend with the child.
We have read the reasons of Brown J and they are very detailed and comprehensive. As well, her Honour dealt with all relevant statutory considerations. With the exception of the second area of complaint which we have identified above, we have some difficulty understanding the precise appealable errors contended for in the grounds of appeal. For example we are of the view that ground one is not a ground of appeal. In the result we are of the view that the appeal does not have strong prospects of success. However notwithstanding our concerns, in a broad way, we understand some complaints by the Mother and thus we cannot in this brief examination conclude that the grounds of appeal are entirely hopeless. We therefore propose to proceed on the basis that there may be some arguable grounds in the appeal.
Bona fides
It was submitted on behalf of the Father, and we accept, that there is no suggestion that the application for security for costs is other than genuine. The Father has an unpaid costs order in his favour and his concerns about recovering costs if the appeal fails and he is the recipient of a further costs order are understandable in the circumstances.
So far as the Mother is concerned we also accept that she is bona fides in seeking to appeal against the orders of Brown J.
Whether the Applicant’s means are caused by the Respondent’s conduct
It was submitted on behalf of the Father that it is not relevant to consider whether the “Applicant’s means” are caused by the “Respondent’s conduct”.
Whether making an order for security would stifle the proceedings
It is relevant to consider whether or not an order for security for costs would be oppressive or stifle the litigation. However that prospect does not require refusal of an application for security but may be a significant matter.
It was submitted on behalf of the Father that an order for security would not stifle the proceedings. The Mother has a number of possible sources to meet the order if made. She could encumber or downgrade her car; she could once again borrow from the family who lent her the $20,000 for the trial, and whom she has largely repaid; or she could press Mr B for further assistance. It was submitted that the evidence of Mr B makes clear that he will continue to fund the appeal. He presumably has some confidence in its prospects. If that confidence is well placed, he will have nothing to worry about as the order sought is only for security to meet a costs order if one is later made. It was submitted that it is hardly surprising that Mr B says he is “not willing” to provide security, however that is said in the context of the application for security and it may change if an order was made.
It was submitted on behalf of the Father that it is clear the Mother can find funds when she needs them. She has briefed Senior Counsel for the appeal. She found the funds for the trial.
We accept the submissions on behalf of the Father and are not satisfied that if an order for security was made, that it would be oppressive or stifle the Mother’s appeal. The Mother has been fortunate in obtaining the benefaction of a very significant amount of money to defray her legal costs of the extensive litigation concerning the child. The Mother has continued to have the ongoing financial support of Mr B. She has been able to repay the loan from her family for $20,000 to pay legal costs.
Public importance
It may be relevant to consider whether or not the litigation may involve a matter of public importance. However it was submitted on behalf of the Father, and we agree, that in this case there are no public importance issues.
Unpaid costs orders
It was submitted on behalf of the Father, and we agree, that it is significant that r 19.05(2)(g) of the Rules identifies an unpaid costs order as a factor to take into account in an application such as this.
As seen an order was made on 21 July 2008 that the Mother pay $7,000 costs to the Father, with a stay of three months. Since the expiry of the stay, no payment has been received at all. The Mother has not even attempted to make any instalment payments as referred to in her Affidavit. At the same time she has repaid her family loans of $20,000. In our view it is relevant that the Mother has made no attempt to satisfy her obligation under the existing costs order.
Costs of the appeal
No evidence was adduced by the Mother as to the likely costs of the appeal. However we assume that the Mother’s costs will be significant given, inter alia, she has to bear the initial costs of preparation of the appeal books and has retained senior and junior counsel to appear.
So far as the Father is concerned the evidence of his solicitor, Gillian Coote, suggests that the costs of a two day hearing may be as follows:
$
·Senior counsel ($5,500 x 2) 11,000.00
·Junior counsel ($3,500 x 2) 7,000.00
·Two days preparation for senior counsel (say $600 x 8 hours x 2) E9,600.00
·Two days preparation for junior counsel (say $400 x 8 hours x 2) E6,400.00
·Solicitor 12,000.00
Total 46,000.00
However, in our view, given the limited grounds of appeal, the hearing could be concluded in one day and thus we would assume that an estimate of the costs for the Father may be $23,000.
Very few submissions were made in relation to the assessment of the amount of the security. However we are of the view that if we were persuaded to make an order for security the amount of the security is within our discretion.
If we were to make an order for security in the amount of say $23,000 as estimated above, then this would be an amount that provided a full indemnity. In Jones, Ellis and Mullane JJ said at 88,377-378:
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.”
In our view, although there is no binding rule that the amount of the security cannot amount to a full indemnity, ordinarily the order does not give the applicant for security a complete indemnity against costs: Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 515 per French J (as he then was).
We are of the view that we should fix such sum as we think just in all the circumstances. On that basis, in our view, in the circumstances of this case, an appropriate amount would be $15,000.
CONCLUSION
As the Full Court said in Fennessy and Gregorian:
57…in an application for security for costs, the Court must balance a number of competing considerations. A litigant whose appeal is not demonstrably without merit ought not lightly be denied access to justice. Conversely, the parties resisting such appeal ought not be put in a position where they are left financially disadvantaged by reason of an inability to recover their costs from the unsuccessful appellant if the appeal fails.
Having regard to the financial position of the Mother, the lack of discernable ability on the part of the Mother to meet any costs order if her appeal is unsuccessful, her failure to pay an existing costs order, and the merits of the grounds of appeal we are of the view that in this case an order for security should be made. We accept the bona fides of the Mother however we are not persuaded that if an order was made it would stifle her appeal.
We are very mindful of the comments made by the Full Court in Halsbury at [34]-[40] about applications for security for costs but are of the view that in this case, as in Stapleton and Bryant, it could not be said that the application for security in any way lengthened the appeal process or was brought with a lack of bona fides. The application for security was also made promptly.
As to the quantum of the amount of security for reasons we have given we propose to make an order in the amount of $15,000.
EXISTING ORDER FOR COSTS
As to compliance by the Mother with the order for payment of costs of $7,000 we do not propose to make the order sought by the Father. The Father can make such application as he is advised to make for enforcement of the order.
SUBPOENA TO PRODUCE DOCUMENTS
Given the order we propose to make in relation to security for costs it is not necessary for us to deal with the application by the Father for leave to issue subpoena to produce documents directed to various lawyers for the Mother. This was conceded by senior counsel for the Father.
APPLICATION FOR EXPEDITION
The application by the Mother for expedition of the hearing of the appeal is opposed by the Father.
It is our impression that the litigation has been difficult and protracted. For example there was a six day trial of the applications for final orders concerning the best interests of a very young child. However nothing has been put on behalf of the Mother that demonstrates that the case is any different from so many cases that frequently come before the Court. Nothing has been put to establish that there is some discrete aspect of this case that demonstrates why the hearing should be expedited and thus gain priority over other cases. In the circumstances we propose to dismiss the application by the Mother.
COSTS
Submissions were not made by either party in relation to costs of the applications as it seemed difficult prior to the pronouncement of our judgment. In our view this was appropriate. Most likely, the costs should be costs in the cause and thus await the outcome of the disposition of the appeal. Should either party wish to file written submissions to the contrary, after contacting the Appeals Registrar, directions will be made.
I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 17 July 2009
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