BEST & BEST
[2016] FamCAFC 190
•27 September 2016
FAMILY COURT OF AUSTRALIA
| BEST & BEST | [2016] FamCAFC 190 |
| FAMILY LAW – APPEAL – CONTEMPT – JURISDICTION – Where the trial judge dismissed an application for contempt in which the father alleged commissions of perjury by the mother – Where the father asserted that the trial judge erred in limiting his consideration of the issue to sections 35 and 112AP of the Family Law Act 1975 (Cth) – Where these were the appropriate provisions under which the Court deals with applications for contempt – Where it was not necessary for the Court to have recourse to its accrued jurisdiction – No appealable error demonstrated. FAMILY LAW – APPEAL – CONTEMPT – Where the father asserted that the trial judge erred in finding that the contempt application was incompetent – Where the contempt application did not particularise the alleged acts of perjury in sufficient detail – No appealable error demonstrated. FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the father asserted that the trial judge had an obligation to re-formulate the charges of contempt on the father’s behalf – Where the father alleged that the trial judge failed to follow the procedures for hearing contempt applications – Where the trial judge found the father’s application to be incompetent and thus the further procedures did not apply – No appealable error demonstrated. FAMILY LAW – APPEAL – BIAS – Where the father asserted that the trial judge’s reasons for judgment demonstrated apprehended bias – Where there was no basis for such findings to be made – No appealable error demonstrated. |
| Family Law Act 1975 (Cth) ss 35, 112AP, 117 |
| Coward v Stapleton (1953) 90 CLR 573 |
| APPELLANT: | Mr Best |
| RESPONDENT: | Ms Best |
| FILE NUMBER: | WOC | 91 | of | 2010 |
| APPEAL NUMBER: | EA | 164 | of | 2015 |
| DATE DELIVERED: | 27 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Cronin JJ |
| HEARING DATE: | 15 September 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 September 2015 |
| LOWER COURT MNC: | [2015] FamCA 1164 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The appeal against the order of Le Poer Trench J made on 1 September 2015 is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, such costs to be assessed in default of agreement, and paid within twenty-eight (28) days of agreement or assessment.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 164 of 2015
File Number: WOC 91 of 2010
| Mr Best |
Appellant
and
| Ms Best |
Respondent
REASONS FOR JUDGMENT
Mr Best (“the father”) appeals against an order made by Le Poer Trench J on 1 September 2015 dismissing his application that Ms Best (“the mother”) be dealt with for contempt of the Family Court of Australia.
The proceedings between the father and the mother have a long history and have principally concerned parenting orders relating to their children. As to the background of the litigation, it is sufficient to note that on 3 February 2012 Ryan J made parenting orders which the father successfully appealed, resulting in the matter being re-determined by Aldridge J on 27 June 2014. Aldridge J ordered that the mother have sole parental responsibility for the children, that they live with her and that the father spend no time with them. Further, his Honour restrained the father from contacting the children or the mother until the children reached the age of 18 years.
The father’s amended contempt application before the trial judge alleged 16 counts of contempt against the mother, and she is the only respondent named in the application.
It is useful to consider the acts said to constitute the alleged perjury:
·Counts 8 and 16 alleged acts of perjury by the mother’s former legal representatives;
·Count 12 alleged that the mother “acted in a manner consistent with contempt” by failing to give disclosure of documents when requested to do so by the father; and
·The balance of the counts alleged that the mother committed perjury.
Of the counts alleging the commission of perjury by the mother, several did not contend that the asserted perjury had occurred in the Family Court. These were:
·Count 4 which alleged the giving of false and misleading evidence to the Local Court;
·Count 5 which alleged the giving of false and misleading evidence to the police;
·Count 6 and part of Counts 3 and 4 which alleged the giving of false and misleading evidence to the Federal Magistrates Court, now the Federal Circuit Court; and
·Count 13 which alleged the giving of false and misleading evidence to the agents of the court and government agents, including the Australian Tax Office and Centrelink, and/or bodies engaged in the provision of child supervision services including Catholic care.
The trial judge’s reasons
His Honour found that:
·Notwithstanding the requirement that the alleged acts of contempt be particularised sufficiently to enable the respondent to understand the charges alleged, there was no such particularisation, and specifically the dates on which the alleged perjuries were committed were not identified and thus, the application was incompetent (at [20]);
·In relation to the perjury allegations, no detail was given specifying the evidence said to amount to perjury, although in some counts there was an indication of the “area of evidence” in which the alleged perjury was said to have been committed, and his Honour said (at [23]):
…nowhere is there a specific charge which clearly identifies what the respondent said under oath, which, she knew to be untrue, at the time she swore it to be true.
·Contempt proceedings brought in the Family Court which can give rise to a sentence of imprisonment are conducted without the safeguards of a jury trial and conviction and, as such, the circumstances in which the Family Court will deal with perjury through ss 35 and 112AP of the Family Law Act 1975 (Cth) (“the Act”) are limited and, ordinarily, allegations of false swearing will be dealt with through prosecution for perjury (at [43] - [44]);
·In order to establish contempt through perjury, the court must be satisfied beyond reasonable doubt that the mother swore to facts which she knew to be deliberate falsehoods. The allegations here did not establish that (at [48] and [54]);
·The counts alleging perjury committed by the mother’s legal representatives could not succeed against the mother (at [21] and [55] ‑ [59]);
·The allegation of contempt through failure to disclose documents was unable to be sustained because the count failed to particularise when the documents were sought or what documents were sought to be disclosed (at [65]). Further, the charge of contempt was not available because r 13.18 of the Family Law Rules 2004 (Cth) (“the Rules”) requires an application to be made to the court for an order for production of documents as a condition precedent to such an application. No application was made and the charge was unable to be sustained (at [71]); and
·There is no power in the Act to enable the Family Court to deal with alleged acts of contempt that occurred in other courts (at [73]).
His Honour considered the orders sought by the father consequent on finding(s) of contempt and noted that there was no power contained within ss 35 and 112AP of the Act for the court to make or vary existing parenting orders as sought by the father (at [7]). Further his Honour concluded that “no possible ground” existed which would cause orders to be made, as sought, in relation to alleged misconduct by judicial officers (at [8]). Finally his Honour found that he had no power to order that the father’s complaints be referred to the Supreme Court of NSW, the Full Court of the Family Court or to the High Court (at [31]).
Thus his Honour dismissed the father’s application.
The appeal
The father asserted 23 grounds of appeal against his Honour’s order which can usefully be grouped into four issues. The appeal was argued by the father by reference to those issues, namely:
Scope of the jurisdiction of the Family Court
The father contended:
·The trial judge erred in his application of ss 35 and 112AP of the Act and wrongly narrowed the construction of those sections. Aligned to this complaint is a further complaint that his Honour wrongly found that the father’s allegations rested solely in those sections and did not apply the Crimes Act 1900 (NSW) (“the NSW Act”), the Criminal Code Act 1995 (Cth) (“the Criminal Code”) and the Crimes Act 1914 (Cth) (“the Crimes Act”), by calling on the accrued jurisdiction of the Family Court.
·As to the orders sought that the father’s allegations be referred to other courts, the trial judge failed to give sufficient reasons for finding that he had no power to do so.
·The trial judge was wrong in law in finding that ss 35 and 112AP provided no power for him to make orders, consequential on finding the contempt allegations proved, that varied the existing parenting orders
·The trial judge wrongly found that the acts of contempt alleged against the third parties could not succeed.
Summary dismissal of the application
The father argued that:
·His Honour erred in summarily dismissing the application without hearing submissions on the substance of the allegations and without having the evidence tested.
·His Honour denied the father procedural fairness by dismissing the application summarily because there was no application before his Honour that the application be dismissed.
·Further, his Honour wrongly concluded that the evidence supporting the father’s application would be excluded once challenged. In particular, it was asserted that his Honour’s findings in this regard concerning the father’s summaries of the impugned evidence were not “tested” and, in any event, the father sought orders for the provision of transcript.
·His Honour made errors of fact in finding that the father’s application was incompetent because it did not:
oParticularise the alleged acts of contempt sufficiently to allow the mother to understand the allegations; and
oDid not specify the dates on which the alleged acts of contempt had taken place.
·His Honour wrongly ignored the discretionary aspect of the requirement for specificity.
Denial of procedural fairness and natural justice
The father contended that:
·It is not the role of a self-represented litigant to formulate the charges against a respondent, that is the obligation of the trial judge. Moreover, that could be done by his Honour here utilising the father’s extensive written submissions.
·His Honour determined the case before hearing it, in other words, without hearing submissions from the father.
·His Honour failed to follow the process for hearing contempt applications laid down by the Rules in that he did not formulate the charges and put them to the mother, amongst other things.
Apprehended bias and judicial conduct
The father argued that:
·His Honour “acted” in a manner that was biased by nature or alternatively provides a reasonable apprehension of bias against the father.
·His Honour demonstrated by his reasons for judgment that it is acceptable for a party to commit perjury and for nothing to be done about it. In that regard his Honour failed to act in accordance with his oath, and such action is “corrupt by nature and manifestly unjust”.
Discussion
The jurisdiction of the Family Court
During the hearing on 27 April 2015, his Honour questioned the novelty of proceeding against the mother for perjury under the rubric of s 112AP and ordered that the father file written submissions as to the Court’s jurisdiction.
In essence, the father’s contention is that his Honour unduly narrowed his jurisdictional options by focussing solely on the provisions of s 112AP and did not refer to the court’s accrued jurisdiction which, it was contended, included powers under the NSW Act, the Crimes Act and the Criminal Code.
We first observe that nowhere in his reasons did his Honour find that the Family Court did not have accrued jurisdiction, and the issue is the father’s assertion that his Honour did not avail himself of it.
It is uncontroversial that the Family Court may, where necessary to determine a matter before it, exercise jurisdiction outside the original jurisdiction of the Court by recourse to its accrued jurisdiction. The rationale is simple enough; it is to enable the Family Court to resolve non-Federal aspects of the justiciable controversy before it where required.
In the extensive submissions made to the trial judge by the father on this point, no reference was made to what we regard to be a matter of significance in considering the submission of whether the Family Court had accrued jurisdiction in relation to criminal matters, namely the identity of the parties. Criminal actions are matters conducted between the State and an individual. While the mother in these proceedings would be, if there was a criminal charge laid, the accused, it is not the father who prosecutes. The father has no fiat from the relevant Attorney General (observing that the father appears to invoke both State and Federal criminal jurisdictions in this regard). Understandably, no authority was referred to which supports the broad contention that the Family Court could exercise accrued criminal jurisdiction.
In any event, it is unnecessary to consider this point any further because recourse to accrued jurisdiction will be necessary only where the Family Court’s jurisdiction does not enable it to deal with the resolution of the whole matter between the parties (Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475 per Barwick CJ). In this case, s 112AP provides the power to punish for contempt and to impose a criminal sanction if the contempt is proved. His Honour did not exclude perjury as being a matter which could be dealt with by the court pursuant to s 112AP, indeed he said at [43] that the circumstances in which the court would exercise its powers under ss 35 and 112AP are “very limited”.
We reject the submission that his Honour erred in his conclusions about the court’s jurisdiction.
The submissions to the trial judge by the father in relation to exercising accrued jurisdiction sweep both the criminal prosecution of the mother for perjury and the alleged perjury of third parties together.
It is necessary to consider briefly this second aspect, the alleged perjury of the mother’s former lawyers.
During the hearing before his Honour on 27 April 2015 the following exchange occurred between his Honour and the father apropos the alleged acts of contempt committed by the mother’s lawyer:
HIS HONOUR: …it would not be possible for me to make any determination in relation to [then counsel for the mother], as you’ve referred to, without her being party to the proceedings… - - -
[THE FATHER]: I’m aware of that, your Honour.
(Transcript 27 April 2015, page 5 lines 15 - 19)
The father then contended that he wanted counsel to appear and “offer an explanation” (transcript 27 April 2015, page 5 line 28). Later, the father said in relation to those allegations that he was “making an application to your Honour to have that matter referred to the DPP at some stage today” (transcript 27 April 2015, page 11 lines 1 - 2).
The father further asked the trial judge to “undertake a – investigate is the wrong word, but a look into the matter and have [then counsel for the mother] provide some sort of ... explanation as to her actions” (transcript 27 April 2015, page 12 lines 41 - 44).
The father told his Honour that he had not sought to raise his concerns about counsel’s behaviour with the relevant professional body and then contended that his Honour was “duty bound” by reference to the s 26 of the Act (the judicial oath of office) to report counsel’s actions to the Director of Public Prosecutions (“the DPP”) (transcript 27 April 2015, page 13 lines 18 - 19). Unsurprisingly, the father was unable to refer his Honour to a case supporting that proposition and, again unsurprisingly, he did not refer to one in the written submissions made to the trial judge or in submissions on appeal. We say unsurprisingly because the father’s contention is, in our view, unsupportable.
In any event, it is clear that the father did not ask his Honour to proceed to consider the asserted charges against counsel but rather sought his Honour refer the matter to the DPP.
Thus it is not now open to the father to claim that his Honour failed to determine the allegations of perjury against a third person, not a party to the proceedings, when his Honour was not asked to do that.
As to the issue of the Court’s power to refer the proceedings to another court, it is incontrovertible that there is no such power to make the orders sought by the father, and thus his Honour need not have said anything more than that (at [31]).
Finally, there is the complaint that his Honour erred at law in finding that he could not make consequential parenting orders under ss 35 and 112AP. Again, this does not require any discussion because his Honour was plainly correct in that finding.
Summary dismissal
This issue can be swiftly disposed of. In essence, the father’s complaints are threefold, first that his Honour dismissed the father’s application without hearing evidence in circumstances where there was no application before the court for summary dismissal, secondly that his Honour did not indicate to the father that he would adopt this course, and thirdly that his Honour erred in his determination that the father’s application was incompetent.
We reject the first two of these challenges. When the matter was first listed before his Honour, after hearing from the father, his Honour turned to the mother who sought that the father’s application be dismissed pursuant to
r 11.04 of the Rules. His Honour noted that the rule had been amended and said to the mother:
But I understand the basis upon which you were seeking that order. The first thing to determine in this case is whether there is jurisdiction - whether there’s power for the court to make the type of order that
[the father] is seeking for the reason that I outlined with him. In those circumstances, such an application would generally be met on the respondent’s side by an application for summary dismissal. And an application for summary dismissal really is, can the applicant’s application succeed at all? And that goes to jurisdiction. Is there power in the court to make the type of order [the father] seeks? So that would be the – that will be the first step in any determination of this application, and I'm prepared to do that for you to consider whether there’s power to make the sort of order that [the father] seeks, if everybody is ready to proceed.(Transcript 27 April 2015, page 7 line 44 to page 8 line 7)
The father then raised the issuing of subpoenas, but his Honour said that it did not affect the jurisdictional point, and after further discussion with the father said:
What I’m really talking about is a preliminary point. And as I’ve said to [the mother], this type of application which is controversial about how would normally be dealt with as a preliminary point. If there’s jurisdiction, then the court would make orders to go on and hear the case. If there’s no jurisdiction, then the court can’t hear it. That’s the point I’m raising.
(Transcript 27 April 2015, page 8 lines 22 - 27)
As it turned out, after making brief oral submissions, the father sought to file written submissions and his Honour made orders. Accordingly, consistent with his Honour’s comments, the father filed written submissions addressing the jurisdiction of the Family Court to determine the father’s application.
The matter returned to his Honour in June 2015 for brief oral submissions, after the written submissions had been filed. Towards the conclusion of that hearing the father again raised the question of issuing subpoenas and calling the evidence of witnesses. His Honour said:
HIS HONOUR: Is this about establishing perjury, is it?
[THE FATHER]: Well - - -
HIS HONOUR: Or is it about something else?
[THE FATHER]: No, it’s about establishing the facts that I’ve outlined in my affidavit that was submitted on 16 April.
HIS HONOUR: Right. Well - - -
[THE FATHER]: So it will relate to the overall matters.
HIS HONOUR: - - - that will – yes. That will depend on my determination on these issues.
[THE FATHER]: Yes.
HIS HONOUR: Because if I determine that the application – your application can’t proceed, then I will make that order, which means that none of that will happen. If I determine your application can proceed either in whole or in part, then it will be a matter of whether the part that can proceed requires corroborative evidence from people other than yourself.
[THE FATHER]: All right...
(Transcript 25 June 2015, page 6 lines 14 - 38) (Emphasis added)
We thus reject the contention that the father had no notice of his Honour’s intention to proceed as he did. We further reject his assertion that there was no application before his Honour for the application to be dealt with summarily and dismissed; the mother’s clear indication to his Honour was that was indeed her application.
As is clear, his Honour, having determined that the court had jurisdiction to entertain some of the alleged acts of contempt, found that the application was fatally flawed and had thus to be dismissed.
During the appeal, the father argued that had he known his Honour was going to dismiss the application he would have made submissions to his Honour as to why it ought not be. As his Honour found, and to which we will shortly turn, the father’s application that the mother be dealt with for contempt was incompetent in that it did not comply with the rules which require, inter alia, that the alleged contempt be particularised. The rationale for this is to accord with the “well-recognized principle of law that no person ought be punished for contempt of court unless the specific charge against him be distinctly stated” (Coward v Stapleton (1953) 90 CLR 573 at 579 - 580). Even recourse to the affidavit in support of the application would not have assisted the father, because the necessary detail must be in the application itself. Further, had the father been unaware of the course to be adopted by his Honour, which we reject, nothing he could have submitted would have “saved” his application from being dismissed as incompetent.
The father then argued that his Honour made errors of fact and was wrong in his determination that the application was unable to stand. However, we are not persuaded of any error by his Honour in this regard.
His Honour considered the father’s allegations as contained in the amended application and concluded that they were incompetent. We agree. The asserted acts of contempt are unparticularised as to time, date or the evidence about which they are said to relate. It would be impossible for the mother to understand the nature and extent of the allegations against her.
His Honour had recourse to the affidavit filed by the father in support of the application. That document consists, in the main, of extracts from affidavits filed by the mother followed by an assertion that her evidence on oath was false and misleading. We illustrate the point by reference to the following extract from the father’s affidavit where the father sets out the mother’s accounts of an event. The event was referred to in several of the mother’s affidavits, filed in April 2010, April 2011 and July 2013. In each she said:
The following day [Mr CC Best] and I went to see [the father] in hospital. I asserted [the father] had been admitted to a Psychiatric Ward. He was brought to meet us in a small conference room surrounded by five orderlies.
The father then referred to the evidence of Mr CC Best and said:
47. [Mr CC Best] gave sworn witness testimony under cross examination before Justice Aldridge that the evidence given by [the mother] at paragraph 24 of her affidavit sworn 29th July 2013 was false & misleading and that [the mother] had lied to the Family Law Court when [the mother] made the statement at paragraph 24 of her affidavit sworn 29th July 2013.
48. [Mr CC Best] advised the court, under oath, that [the father] had not been brought into the conference room [in hospital] surrounded by five orderlies at all.
49. Given that the wording contained in paragraph 24 of [the mother’s] affidavit sworn 29th July 2013 are exactly the same in all respects as the words contained in paragraph 21 of [the mother’s] affidavit sworn 28th April 2010 and paragraph 24 of [the mother’s] affidavit sworn 19th April 2011 [the father] says [the mother] has provided false & misleading evidence under oath on both of those occasions to both the Federal Magistrates Court and the Family Law Court.
The balance of the affidavit is in similar form. It does not provide evidence supportive of the allegations of perjury. It contains no more than assertions and conclusions of law. It does not establish that the challenged statements by the mother were false, that she knew that they were false, and at the time that she swore to their truth she knew they were false. Absent evidence, the alleged acts of perjury cannot be sustained.
We pause to note and agree with his Honour’s comments at [26] and [30] that:
26. In the affidavit [the father] provides summaries of evidence given by [Mr CC Best], a witness in a proceeding between the parties in the Federal Circuit Court. If the court was to proceed further with the hearing, such summaries would probably be challenged and, if so, would be struck out. In that instance no copy of transcript is provided.
…
30. [The father] seeks to rely upon his summary of evidence contained in documents produced under subpoena to either the Federal Circuit Court or this Court. Such summaries could not be accepted as evidence of the contents of those documents.
The father has not established any error in his Honour’s finding that the allegations as asserted by the father in the amended application did not comply with the requirements of the Rules and thus would be dismissed (at [39]).
We too reject the father’s contention that the words on the form on which an application for contempt is to be brought rendered compliance with specificity in making the allegation discretionary. The father pointed to the words appearing on the form which contain a direction to: “[s]tate precisely what the respondent did or did not do which you allege amounts to a contempt of court, including the date, time and place, if applicable. See example below.” Relying on these words, the father argued that specifying the dates on which the alleged contempt occurred was discretionary. The words requiring specificity of allegation are clear and unambiguous and echo well accepted legal principles (see Coward v Stapleton (1953) 90 CLR 573). We do not accept that the words convey that asserted meaning, that is, that it is unnecessary to particularise the alleged contempt.
We reject so much of the father’s submission as suggested that his Honour was entitled to, or perhaps, obliged to take a beneficial view of the inadequacies in the application and, in effect, prop up the allegations by reference to the affidavit. As to the clear requirement for precision and specificity in framing the allegations of contempt and adherence to the Rules, in Tate v Tate (2002) 29 Fam LR 195 at 127 Kay J said:
…in matters concerning the liberty of the subject it would generally only be with the clear consent of the parties that any departure from the Rules would be appropriate.
Further in LGM & CAM (Contempt)(No 2) (2008) FLC 93-355 at 82,322 - 82,323 Finn J said:
123. I would not want my conclusion in this case to be taken as in any way undermining the importance of adherence to the rules concerning proper service of contempt applications, and in this regard I endorse the following remarks by his Honour in his reasons for judgment:
8.It is the case, and has been for well over a century, that procedural requirements in contempt proceedings are to be strictly adhered to unless there are strong reasons to do otherwise. As proceedings in which the respondent faces the possibility of imprisonment or other penalty, the applicant and the Court must take them very seriously. As a mark of their seriousness the rules are generally strictly applied.
His Honour was clearly aware of the need for caution and strict compliance with the relevant Rules concerning these applications and we find no error in his Honour’s approach.
Denial of procedural fairness and natural justice
The father complained that as he was an unrepresented litigant, the trial judge had an obligation to re-formulate the charges against the mother on the father’s behalf and, further, that his Honour was then obliged to put those charges to the mother. As to the first of these complaints, we do not accept that his Honour’s responsibilities towards the father as an unrepresented litigant extend to articulating the case on his behalf. Even if it were the trial judge’s obligation, given the broad, unparticularised and unspecified allegations in the application, and similarly the failure of the father to provide evidence which in any way supported the alleged acts of perjury, the task would have been an impossible one for the trial judge.
As to the second of these complaints, and indeed the balance of the claim raised under this heading, they proceed on a misconceived foundation. As his Honour clearly indicated, and indeed was entirely entitled to do, he considered as a preliminary point the competence of the father’s application and the orders sought by him. Having found the application to be incompetent, there could be no call for the hearing of evidence, or receiving of further submissions, or following the procedures set out in the Rules.
Apprehended bias and judicial conduct
The father confirmed that the complaint of apprehended bias arose out of his Honour’s reasons for judgment. However, the father was not able to take us to any part of those reasons which demonstrated that. All he could do was take us to paragraphs with which he did not agree, and that is plainly insufficient.
As to the judicial conduct of his Honour, we reject the outrageous claims of the father and propose to say nothing further about them.
Conclusion
There being no merit in any of the grounds of appeal or the complaints arising therefrom, the appeal will be dismissed.
Costs
At the conclusion of the hearing of the appeal, and as is customary, we sought submissions from the parties on the question of the costs of the appeal. The father indicated that he did not seek an order for costs if the appeal was successful. The mother though sought an order that the father pay her costs incurred in responding to the appeal. She estimated that those legal costs, while not yet the subject of an account rendered to her, would be in the order of $1500. The father objected to paying those costs insofar that he argued that the amount suggested was excessive given the extent of the mother’s summary of argument. He made no other submissions as to why he ought not pay the costs of the unsuccessful appeal.
The question of costs in appeals is governed by the provisions of s 117 of the Act, and in particular s 117(2A) which sets out the matters to which a court must have regard in determining whether to make an order that a party pay costs. In this regard, the appeal has been wholly unsuccessful and for that reason alone we consider it appropriate that the father should pay the costs of the mother’s appeal, but because the amount of those costs is uncertain, the amount paid should be as assessed in default of agreement.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Cronin JJ) delivered on 27 September 2016.
Associate:
Date: 27 September 2016
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