Brito and Jalaba
[2012] FamCAFC 188
•15 November 2012
FAMILY COURT OF AUSTRALIA
| BRITO & JALABA | [2012] FamCAFC 188 |
| FAMILY LAW – APPEAL – Application for costs of discontinued appeal – Where the appellant discontinued an appeal at the procedural hearing one month after the filing of the notice of appeal – Where the nature of the appeal was against orders based essentially on the same facts as an earlier decision on the same issue which she had not sought to disturb – Where the merits of the discontinued appeal appeared very poor – Where the father had reasonably sought legal advice and prepared a security for costs application which was rendered unnecessary by the mother’s discontinuance – Where the material prepared for the security for costs application was applied in part to this application for costs – Application allowed – Costs fixed at $3,000. |
| Family Law Act 1975 (Cth), s117 Family Law Rules 2004, Chapter 22, rule 42 |
| ZH and N [2005] FamCA 828 |
| APPLICANT: | Mr Brito |
| RESPONDENT: | Ms Jalaba |
| FILE NUMBER: | BRC 10617 of 2009 |
| APPEAL NUMBER: | NA 54 of 2012 |
| DATE DELIVERED: | 15 November 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 30 October 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 4 June 2012 |
| LOWER COURT MNC: | [2012] FMCfam 598 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Orders
The appellant mother pay the respondent father’s costs of the discontinued appeal fixed at $3,000.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brito & Jalaba has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 54 of 2012
File Number: BRC 10617 of 2009
| Mr Brito |
Applicant
And
| Ms Jalaba |
Respondent
REASONS FOR JUDGMENT
In an application filed 19 September 2012, the respondent father seeks that the appellant mother pay his costs incurred as a result of the mother’s now discontinued appeal. The father also seeks that the mother pay his costs of this application for costs. In the affidavit filed in support of his application, the father asks that the mother pay “indemnity costs to the value of $4526.50”.
The original proceedings between the parties involved property and parenting matters. A trial was heard in August and October 2011, and final orders were made on 10 October 2011 providing for the child to live with the mother and spend time with the father. In those proceedings, the mother made an application for the child to travel with her to Israel in October 2011. Federal Magistrate Howard refused that application. His Honour found that it was not in the best interests of the child to visit Israel in the near future on the basis of the then current travel advisory warnings. The final orders specifically provided that the child was to travel to Israel only by agreement between the parties, or by order of the Court.
The mother did not appeal those final orders. However on 1 June 2012 the mother filed a further application, inter alia, for travel to Israel. The application was listed urgently. Federal Magistrate Howard dismissed it giving oral reasons on 4 June 2012. His Honour considered the current travel warnings and found that as the warnings were practically identical, there had not been a significant change in circumstances and travel to Israel remained not in the child’s best interests. As mentioned, reasons for judgment were delivered ex tempore on 4 June 2012. The reasons were provided in written format on 20 June 2012.
It is from the order again dismissing her application to take the child to Israel that the mother filed a notice of appeal on 18 June 2012, before the written reasons for judgment were provided but within the time prescribed by the Family Law Rules 2004 (“the Rules”). The notice of appeal listed seven grounds of appeal, asserting a range of general appealable errors by his Honour. A note states that, “the Appellant Mother reserves the right to file amended grounds of appeal upon receipt of Reasons for Judgment by the Federal Magistrate at first instance”. The mother did not later file any amended grounds of appeal.
In accordance with the Rules the mother filed a draft appeal index on 17 July 2012. At the subsequent procedural hearing before the Regional Appeals Registrar on 27 August 2012, to settle the index and make appeal directions, the mother filed a notice of discontinuance. At that procedural hearing the mother appeared in person, and the respondent husband was represented by a solicitor.
The Registrar’s order was that the appeal be discontinued. A notation was included on the order, that “the Respondent has foreshadowed a possible Application in an Appeal for costs”.
Rule 22.42 provides that an application for costs must be filed within 28 days after the filing of the notice of discontinuance. The father filed an application for costs, in time, on 19 September 2012. The mother filed a response on
25 October 2012. She opposes the father’s application and seeks that each party pay their own costs.
The father seeks in effect an indemnity costs order in the specific amount of $4,526.50 said to be for his costs incurred by the discontinued appeal. In his affidavit, he deposes that this amount has been calculated by his solicitor, and paid already through a loan from his father. Annexure “A” to the affidavit is a schedule of costs titled “Schedule of costs of and incidental to the Appeal filed by [the mother] on 18 June 2012”, prepared by the father’s solicitors.
In addition to tasks directly related to responding to the mother’s appeal, a significant portion of the costs listed are in relation to a security for costs application proposed to be filed on behalf of the father. It is apparent from the time entries that an application and affidavit were drafted, settled, discussed with the Regional Appeals Registrar, and executed. The father maintained, reasonably in my view, that the preparation of the security for costs application was not an unreasonable response to the mother’s notice of appeal, given the nature of the orders she sought to appeal. Indeed it is possible, as the father submits and the mother did not seem to deny, that her discontinuance of the appeal was largely in response to his foreshadowed security application.
There is no record on the appeal file of such an application having been filed by the father, though the mother does depose to having been served with the application. At the hearing before me the father, who appeared for himself without lawyers, explained that the application was returned by the Registry as it lacked specificity as to quantum sought. However, his solicitor attended the procedural hearing for the appeal with the revised application ready to file.
There are also time entries on 30 August 2012, after the procedural hearing and filing of the notice of discontinuance on 27 August 2012, in relation to “correspondence”, including “correspondence to [the mother] re change days to include soccer trainings”. The schedule of costs does not appear to list details for the father’s current application, though he does seek those costs. He explained that much of the material settled for the application for security for costs was used in the application and affidavit for this application.
Discussion
The father’s affidavit canvasses briefly the merits of the appeal and the history of the litigation in the Federal Magistrates Court. He also raises at length other proceedings in the Magistrates Court of Queensland in 2009-2010, matters between the parties in relation to Child Support, and contact between the parties in relation to the father’s request to take the child to Thailand, the mother’s request to travel with the child to Israel, and weekend changeovers.
In correspondence the father offered to withdraw his application for costs if the mother “promised to cease breaching the current court orders and take [the child] to his soccer training and games, and that next year she would facilitate his involvement”.
The basis of the father’s application for costs is summarised at paragraph 104 of his affidavit:
Given the nature of [the mother’s] appeal, her past behaviour in the courts, her extensive history of frivolous and vexation [sic] litigation, her general disregard for the financial impact her actions have on our family, her decision to withdraw the appeal and her subsequent and immediate initiation of further mediation I make this application that she be ordered to pay $4526.50 in indemnity costs.
At the hearing before me, the father emphasised his concern about the ongoing litigation instituted by the mother in the Federal Magistrates Court and other courts, and the financial and emotional distress this caused to him and his family.
The mother filed an affidavit in response on 25 October 2012. She deposes that she initiated the appeal in good faith, believing the Federal Magistrate had not properly considered the question of the danger of the child visiting Israel. She says she filed the appeal before the written reasons were received so as not to have to apply for leave to appeal out of time. Further, the mother states that after receiving the reasons and making inquiries, she began to doubt whether her appeal would be successful.
The mother admits that on 23 August 2012 she was served with an application for security for costs. She says she considered seeking an adjournment of the procedural hearing on 27 August 2012 in order to seek legal advice about the application, and to explore the possibility of mediation with the father. The mother contends that the procedural hearing was the first opportunity she had to withdraw the appeal, and she elected to do so as “it seemed that the matter was escalating and threatened to get out of hand, which would put financial strain on all parties, and cause further tension between the father and [herself]”.
Annexure “A” to the mother’s affidavit is an email sent by her to the father on
22 August 2012. In the email, the mother offers to withdraw or “extend” her notice of appeal if the father agrees to attend mediation in relation to handover, religious service participation, and time to be spent during an anticipated visit of the maternal grandmother from overseas.
When making submissions about the father’s schedule of legal costs attached to his affidavit, the mother took particular issue with the husband’s solicitor’s appearance fee at the procedural hearing before the Registrar. She said it was unreasonable for the solicitor to attend as the husband ought to have known the she was discontinuing her notice of appeal, by reference to another email, sent on 23 August 2012. The mother did not provide that email in her material, however the father located and produced it (Exhibit 1).
That email was addressed to the husband’s solicitor and said:
I received your Application for Security for Costs and at this stage I offer to withdraw the Appeal if each party bears their own costs. If your client does not agree I will have to ask for an adjournment of the procedural hearing and the Security for Costs Application for 2 months to discuss the matter with my mother who is coming for visit, get legal advice and attempt further mediation with the Father in order to minimise any current and future litigation, the adjourning the Appeal process for the moment may help towards that.
Annexure “B” is a response from the husband’s then solicitor dated
23 August 2012, advising that the husband would accept the offer to withdraw the notice of appeal if the mother paid costs fixed at $3,300.
At the hearing, the mother emphasised that she was not aware the husband had engaged lawyers to respond to the appeal. She says had she known he was going to incur costs, she would have discussed the continuation of the appeal with him, which may have led to his costs being avoided. The father argued, correctly, that he was entitled to seek legal advice and was not obliged to expressly disclose this to the mother.
The husband maintained that the mother’s suggestion of discontinuing her appeal prior to the procedural hearing was both conditional, and in any event unclear.
Annexure “C” to the mother’s affidavit is an offer from the father’s solicitor dated 31 August 2012. The offer stated the husband would not pursue an application for costs of the discontinued appeal if the mother agreed to changes in the days the father was to spend with the child under the Federal Magistrate’s orders.
Annexure “D” is an email dated 10 October 2012 from the father to the mother attaching a document named “Application for Costs”. It is not apparent whether the attachment was a sealed copy of the application. The mother complains she was not properly served. The father filed an affidavit of service on 29 October 2012. In any event, it is obvious the mother was aware of the husband’s application as she filed a response on 25 October 2012.
Rule 22.42 provides that the Court may, in its discretion, make an order for costs where an application is made after the filing of a notice of discontinuance. The exercise of that discretion is guided by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides that unless there are circumstances otherwise justifying costs, each party is to bear their own costs. Section 117(2A) sets out the matters the Court shall have regard to in considering what order, if any, should be made as to costs:
(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.
The financial circumstances of the father are described in his affidavit. He says he has a debt of approximately $268,000 to his father wholly for legal costs, and until recently owed $2,500 to his fiancée. His father is said to have paid the current legal fees pertaining to the wife’s appeal. The father has no assets other than a vehicle which is in need of repairs. The father reports that in a meeting with his employer in July, he was advised he was likely to become unemployed in the next three to six months.
The mother complained that the greatest part of the costs claimed by the father relate to his proposed application for security for costs. In regard to her own financial circumstances, the mother states she is a full-time student with a weekly income and expenditure of $310. She says she is not in a position to pay costs.
When asked about how she would pay the $15,000 security required by the orders of the Federal Magistrate if she were allowed to travel with the child to Israel, the mother said she would borrow from friends, family or the bank. The mother explained the money was intended as a security, to be returned upon her return to Australia with the child.
It is well established that a party’s impecunious circumstances are not a bar to an order for costs. While the mother may not have funds herself to meet a costs order, that she was confident she could provide a $15,000 security and pay for return flights for herself and the child to Israel suggests she has the means to somehow acquire funds.
I consider the nature of the mother’s appeal to be relevant to a consideration of costs in this case under subsection (g) (see ZH and N [2005] FamCA 828). The mother sought to appeal from a decision based essentially on the same facts as an earlier decision on the same travel issue, which she had not sought to disturb. While it is commendable that she discontinued proceedings at an early stage, it appears at least on the face of it that her prospects of success in the appeal were very poor. The father was entitled to engage legal advice to respond to the notice of appeal.
Having regard to the financial circumstances of the parties, the conduct of the mother in filing and subsequently discontinuing her notice of appeal, and the nature of the appeal, I am satisfied that there are particular facts and circumstances in this case that justify the making of an order for costs. However the circumstances do not fall into the exceptional category such as to attract an order for indemnity costs for the whole of the costs claimed.
Conclusion
The application for security for costs proved unnecessary because the mother did not proceed with the appeal. Although the father could not have known that at the time of its preparation and filing, it is not appropriate in the circumstances of this case that the mother pay the whole of those costs. The mother should pay the costs on an indemnity basis of the father’s response to the notice of appeal and the costs of this application for costs.
According to Annexure “A” to the father’s affidavit, the costs of responding to the notice of appeal are approximately $1,634 (+GST). The costs of preparing the application for security for costs total $2,309 (+GST). Taking into account that the costs of the current application are in part reflected in the time entries for the security for costs application, I consider the sum of $3,000 appropriate. This reflects $1,634 (+GST) for the costs of responding to the notice of appeal, together with $1,200, being approximately half of the legal fees incurred for the security for costs application ultimately prepared unnecessarily.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 15 November 2012.
Associate:
Date: 15 November 2012
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