BROUGHTON & BROUGHTON
[2015] FamCAFC 34
•18 February 2015
FAMILY COURT OF AUSTRALIA
| BROUGHTON & BROUGHTON | [2015] FamCAFC 34 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where proposed appeal concerns interim orders – Where a final hearing date has been set – Where the appeal is unlikely to be heard before the date of the proposed final hearing – Where there is no utility in hearing the appeal – Application to reinstate appeal withdrawn. FAMILY LAW – APPEAL – COSTS – Where the father’s application is tantamount to being wholly unsuccessful – Where the case does not come within the category of case where an order for indemnity costs might be appropriate – Where costs ordered on a party/party basis. |
| Family Law Rules 2004 (Cth): r 22.13 |
| APPLICANT: | Mr Broughton |
| RESPONDENT: | Ms Broughton |
| INDEPENDENT CHILDREN’S LAWYER: | Strong Law Pty Ltd |
| FILE NUMBER: | CAC | 1600 | of | 2012 |
| APPEAL NUMBER: | EA | 158 | of | 2014 |
| DATE DELIVERED: | 18 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 18 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 7 November 2014 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| FOR THE APPLICANT: | Mr Broughton in Person |
| SOLICITOR FOR THE RESPONDENT: | KJB Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Strong Law Pty Ltd |
It is noted
That the Application in an Appeal filed by the applicant on 22 January 2015 is withdrawn.
It is ordered
That the applicant father pay the respondent mother’s costs of the Application in an Appeal filed on 22 January 2015 in the amount of $800.00, such costs to be paid within two months from the date of the making of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Broughton & Broughton 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 SYDNEY |
Appeal Number: EA 158 of 2014
File Number: CAC 1600 of 2012
| Mr Broughton |
Applicant
And
| Ms Broughton |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
Before the court today was an application by Mr Broughton (“the father”) filed on 22 January 2015 in which he sought to reinstate his Notice of Appeal filed on 1 December 2014. The proposed appeal was against orders made by Judge Hughes on 7 November 2014. Because the father failed to file a draft appeal index within the time prescribed by r 22.13 of the Family Law Rules 2004 (Cth) (“the rules”), the appeal was deemed abandoned.
The orders made on 7 November 2014 were interim parenting orders in relation to the parties’ two children, H born in 2005 and Y born in 2007.
The orders continued interim parenting orders made by her Honour on 13 October 2014, whereby the equal time living arrangement which had existed since separation was varied so that the children would thereafter live with
Ms Broughton (“the mother”) and spend time with the father every second weekend and alternate Thursday nights.
On 7 November 2014, interim orders were also made by consent which, in effect, divides the children’s time during the school holidays equally between the parties.
Had the appeal been reinstated, it was the changes made by her Honour to the children’s living arrangement during school term which would have been the focus of the appeal.
This morning, during exchanges, I was informed that there is a final hearing listed to commence in the Federal Circuit Court on 27 July 2015. That hearing will deal with property as well as parenting issues. As the orders of 7 November 2014 reveal, there will be a family report available for that hearing.
The fact of the final hearing invited consideration about the utility of this appeal, were it to be reinstated. The father indicated he understood, based on discussions with the Appeals Registry staff when he filed the Notice of Appeal, that the appeal would be brought on very quickly as a consequence of which he was hopeful that if it is reinstated it would be heard before July 2015.
While the father’s understanding may have been correct, intervening events, namely his failure to file the draft appeal index as a consequence of which the appeal was deemed abandoned, materially affects this court’s capacity to deal with his putative appeal prior to July 2015.
On my preliminary assessment, an application for expedition by the father, should he make it, would be unlikely to succeed. The inevitable consequence of this is that if the appeal was reinstated, it would not be finalised prior to
July 2015.
The father is no novice to appellate litigation and it seems to me it came as no surprise to him to hear that even if the putative appeal was to achieve a measure of success, the result, in all probability, would be that the matter would be remitted for rehearing in the Federal Circuit Court. That that is so highlighted the futility of reinstatement of this appeal.
Following submissions by the solicitor for the mother and the Independent Children’s Lawyer (“ICL”), the father reconsidered his position and decided to withdraw the application for reinstatement. Suffice to say, I agree that this was a sensible decision and that the parties’ efforts and the efforts of the ICL are better spent in preparation for the looming final hearing.
Costs
The mother has applied for an order that the father pay her costs of the application which today he withdrew. It is self-evident that it was the father’s failure to file his appeal index on time which brought about the proceedings today. It was only when faced with the reality of the futility of the situation that had been brought about that he belatedly withdrew his application for reinstatement.
It seems to me that the situation is tantamount to the father having been wholly unsuccessful in the application that brought the proceedings before the court today. Simply put, I accept that the mother has incurred legal expenses which she should not have incurred.
The father argues that the steps he has taken in this application have been motivated by the children’s best interest. He emphasises that he is in a parlous financial situation. It is well settled that impecuniosity is no barrier to an order for costs although the parties’ financial circumstances are clearly relevant.
It seems probable that the mother, who I understand is employed, is in a better situation to the father but nonetheless her financial situation is difficult.
On balance, I am satisfied that the father should pay the mother’s costs. Those costs are sought on an indemnity basis. Notwithstanding the force of the submissions ably made by the solicitor for the mother, I am not satisfied that this case comes within the category of case where an order for indemnity costs might be appropriate. It is appropriate that the costs are calculated on a party/party basis.
On a party/party basis, the solicitor for the mother said the costs would be in the vicinity of $1,000. I invited her to address me on how those costs are calculated. I was left none the wiser.
Having regard to the court’s experience in applications of this type and from the manner in which this application has been undertaken, I am satisfied costs on a party/party basis would be in the vicinity of $800 and an order will be made to that affect.
Having regard to the applicant’s difficult financial circumstances, as well as the fact that he tells me he is now seeking employment, he should have eight weeks to pay the amount due.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 18 February 2015.
Associate:
Date: 11 March 2015
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