Arndale and Kingley (Costs)
[2011] FamCAFC 27
•20 January 2011
FAMILY COURT OF AUSTRALIA
| ARNDALE & KINGLEY (COSTS) | [2011] FamCAFC 27 |
| FAMILY LAW - APPEAL – Costs – Where leave to appeal was sought – Where the delay was partly unexplained – Where there would be prejudice to the father should leave be granted – Where the mother’s application in a case would provide similar remedies – Application dismissed. FAMILY LAW - APPEAL – Costs – Where written submissions as to costs provided – Where the mother’s application was wholly unsuccessful – Where the Independent Children’s Lawyer sought costs against the mother – Where the mother submitted that an appeal would not be necessary if the father and the Independent Children’s Lawyer consented to the removal of the Family Report writer – Where the mother is not in a financial position to pay costs – Where the mother has a serious medical illness – Where the application was dismissed on the basis of utility – Where s 117(4) prescribes that a order for costs can not be made – No order as to costs. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 r 8.02(2)(b); r 19.18(1) |
| Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Re Collins and the Victorian Legal Aid Commission (1984) FLC 91-508 Telfer and Telfer (1996) FLC 92-688 Re David: Costs (1998) FLC 92-809 Reisner & Reisner (Costs) [2010] FamCA 588 |
| APPELLANT: | Ms Arndale |
| RESPONDENT: | Mr Kingley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 1363 | of | 2008 |
| APPEAL NUMBER: | NA | 82 | of | 2010 |
| DATE DELIVERED: | 20 January 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | By way of written submissions |
| JUDGMENT OF: | May J |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 December 2009 |
| LOWER COURT MNC: | [2009] FamCA 1122 [2009] FamCA 1219 |
REPRESENTATION
SOLICITOR FOR THE APPELLANT: | In person | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Written submissions by Clare Dart, Solicitor | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The application of the Independent Children’s Lawyer for costs against the mother in relation to the mother’s application filed 19 July 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Arndale & Kingley (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 82 of 2010
File Number: BRC 1363 of 2008
| Ms Arndale |
Appellant
And
| Mr Kingley |
Respondent
REASONS FOR JUDGMENT
Introduction
On 10 September 2010 the court dismissed the mother’s application for leave to appeal out of time.
Reasons for judgment were provided when the orders were made. It was ultimately concluded that in the circumstances of the case, leave ought not to be granted given the partly unexplained delay, the prejudice to the father in granting leave including the substantial delay in the hearing of the trial should leave be given. In addition, an appeal, if successful could only lead to a further hearing. The mother’s application could provide similar remedies.
Given that the parties submitted that arguments in relation to costs could not be made until after judgment was delivered, an order was made providing a timetable for the filing of written submission as to costs. Neither the applicant mother nor the respondent father filed submissions within the 21 days provided. The Independent Children’s Lawyer did file written submissions on 22 October 2010 and asks that their costs be paid by the mother.
The mother, in response to the Independent Children’s Lawyers submissions filed a reply on 29 October 2010. On 18 November 2010, by way of email, the mother provided additional submissions. The orders provided that the mother reply within seven days and also that the submissions have endorsed on the cover sheet the date on which a copy of that submission was served on the other party. The mother is out of time in filing her submissions originally and there was no coversheet. In any event I have considered the submissions.
Relevant Law
The principles in relation to costs are well settled. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) contain the legislative provisions. The provisions contained in s117(3), (4) and (5) are of particular significance. Section 117 provides:
Section 117- Costs
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
(3)To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
(5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.
A number of the rules in the Family Law Rules 2004 (“the Rules”) are also relevant. Rule 8.02(2)(b) of the Rules provides that the court may order that the “costs of the independent children’s lawyer be met by a party”.
Pursuant to rule 19.18(1) of the Rules:
(1)The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c) to be calculated in accordance with the method stated in the order; or
(d) for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer submits that the court, pursuant to s 117 has the power to make an order for costs against the mother and that such an order is justified in the circumstances of this case.
The Independent Children’s Lawyer is seeking an “order for the costs to be fixed in the amount of the grants of aid made to respond to [the mother’s] application”. It is said, under the heading “Quantum” in the written submissions, that their appearance was required on three days, with each appearance incurring considerable costs. In the annexure to the Independent Children’s Lawyers submissions a schedule of costs has been provided detailing the grants of aid made in this case. In total the fixed amount is $4,913.70.
In support of their argument the Independent Children’s Lawyer made reference to the Full Court’s (Kay, Warnick & Boland JJ) discussion in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123, in particular the following paragraph:
41.A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
With regard to the above passage, it is then submitted that “the relevant factors in favour of an order for costs in this case are those in s117(2A)(a), (b), (e) and (g)”. The submissions in relation to each section will now be considered.
First, with respect to s117(2A)(a) of the Act. The Independent Children’s Lawyer concedes that “there is little information before the Court as to the Applicant’s financial circumstances”. It is said however, that it is of relevance that the mother was not in receipt of legal aid and was represented by counsel at the hearing of the application.
It is also submitted that the fact that the mother is not in receipt of legal aid, is also of relevance to the s117(2A)(b) of the Act.
Thirdly, it is asserted that the mother has been wholly unsuccessful in her application, a consideration under s117(2A)(e) of the Act. Reference was made, in support of this proposition to Re Collins and the Victorian Legal Aid Commission (1984) FLC 91-508.
With respect to s117(2A)(g) of the Act, which as previously set out, allows the court to consider other matters it considers relevant, it is said, at paragraph 8 of the Independent Children’s Lawyer’s submission that:
…in Telfer and Telfer (1996) FLC 92-688, Lindenmayer J took into account the fact that the costs of the children’s representative would otherwise be borne by the finite resources of the Legal Aid Office if an order for same was not paid by the husband or wife. This approach was approved by the Full Court of the Family Court in Re David: costs (1998) FLC 92-809.
Submissions of the mother
In response to the submissions of the Independent Children’s Lawyer the mother contends that no order as to costs should be made. The mother asserts that the background to the application and her substantive complaint arises out of the circumstances of Barry J’s “disqualification”.
The mother submits that her applications in an appeal would have been unnecessary had both the father and the Independent Children’s Lawyer not opposed the removal of Mr P, as the family report writer, or the mother’s application for an extension of time to file an appeal. It is further submitted that consent orders have been initiated by the father and the Independent Children’s Lawyer allowing the father to have time with the child consistent with the orders she asked be made.
In addition the mother says that she is not in a financial position to pay costs. The mother asserts that “[t]he [father] and his associated companies and trusts owe the Mother in excess of $4.5million”. It is also said that the mother has the care and responsibility for the child “without any real financial contribution by the Father”.
The mother also states that due to her medical condition she has considerable medical expenses. She submits that should an order for costs be made against her, her capacity to provide for both her care and that of the child will be compromised.
Each of the Independent Children’s Lawyers submissions is then addressed. With regard to rule 8.02(2)(b) of the Rules, the mother submits that “[u]nlike an actual appeal of the orders, the ‘application for an extension of time to appeal’ was not a matter that concerned the welfare of the child, nor any matters [contained in] Section 60 CC”. It is the mother’s contention that the Independent Children’s Lawyer should not have been involved in the proceedings.
The mother also states that she is in receipt of some grants for legal aid. She explains that she would “suffer severe financial hardship as a result of an order that she pay any parties’ costs”. A number of reasons are then set out. In summary, that:
·the mother is on Centrelink payments/ disability payments;
·the mother has brain cancer and is “currently expending all available financial resources” on medical treatment and care for the child;
·the father owes the mother $28,000 in child support assessment arrears;
·the father has been ordered to contribute to the associated costs of travel to the contact centre as the mother cannot solely afford the costs;
·the father has not paid the mother her property settlement entitlements amounting to $4 million, and;
·that the mother currently owes approximately $1.1 million to various entities, including Legal Aid Queensland.
It is submitted by the mother at paragraph 31 of her written submissions that:
If the court deems that it is appropriate that the ICL’s costs be paid by another party, there is justification that the party/entity that should be responsible for the payment of the ICL’s costs (if it is deemed that the ICL’s involvement was necessary or in the best interests of the child), it ought to be the Family court of Australia (See Reisner May J, 12 May 2010 costs application).
The mother repeats her assertions about her financial position and explains that the counsel representing her in the application was appearing on a pro bono basis.
In reference to the submission that the mother was wholly unsuccessful, the mother states that this was not the case as her application was dismissed on the basis of utility. The mother states at paragraph 37 that:
Given the circumstances and the actions of Barry J; and [Mr P], there was nothing ‘unreasonable’ with respect to the Mother’s application. In fact the decision of Barry J 28 April 2010 in the matter of Reisner; (and subsequent costs application 12 May 2010) it was wholly reasonable for the Mother to bring her application.
Conclusion
After consideration of the written submissions from both the Independent Children’s Lawyer and the mother, I am of the view that the mother’s financial circumstances together with the unusual features of this case demand that no order as to costs be made.
I am mindful that there is considerable validity in the submissions of the Independent Children’s Lawyer and that otherwise an order for costs would be made against the mother.
As there was no appeal (because there was no order to appeal from) it is not possible in this case to consider whether the proper remedy for the Independent Children’s Lawyer is a certificate.
While it can be seen that these unfortunate circumstances arose because the judge determined not to continue with the matter, it was the mother’s application to seek leave. It was a futile attempt and was entirely unsuccessful. Apart from other difficulties the application of the mother has caused approximately $5,000 of public funds to be expended unnecessarily.
However, by reference to the provisions of s117(4) particularly, this is not a case where an order for costs should be made.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 20 January 2011.
Associate:
Date: 20 January 2011
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