Burrough & Fagin
[2021] FedCFamC1A 33
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
Burrough & Fagin [2021] FedCFamC1A 33
Appeal from: Fagin & Burrough [2021] FCCA 1413 Appeal number(s): SOA 38 of 2021 File number(s): MLC 11521 of 2020 Judgment of: STRICKLAND J Date of judgment: 30 September 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appellant sought to discontinue the appeal at the eleventh hour – Where instead of letting the interim orders play out and focus on the final hearing the appellant chose to appeal those orders – Where it is not for this Court to take into account the motives of the appellant in relation to the filing of the appeal or the discontinuance of it – Where the appellant relies on her financial circumstances – Where there is ample Full Court authority that in the context of an appeal even impecuniosity is not a bar to an order for costs being made where the circumstances otherwise justify it – Here there are circumstances justifying an order for costs – Where the respondent has been obliged to incur legal costs which would in effect be thrown away if this Court acceded to the appellant’s application – Appeal dismissed – Costs ordered in the sum sought by the respondent. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Sch 3
Number of paragraphs: 20 Date of hearing: 30 September 2021 Place: Adelaide via video to Melbourne Counsel for the Appellant: Mr Hall Solicitor for the Appellant: Sebastian Rubera & Assoc Pty Ltd Counsel for the Respondent: Dr R Smith Solicitor for the Respondent: Tonkin Legal Group Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
SOA 38 of 2021
MLC 11521 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BURROUGH
Appellant
AND: MR FAGIN
Respondent
: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
30 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 23 June 2021 be dismissed.
2.The appellant mother pay the costs of the respondent father fixed in the sum of $10,332.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Burrough & Fagin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This was an appeal which was listed today for hearing. The Notice of Appeal was filed on 23 June 2021 by Ms Burrough (“the mother”), and in that Notice the mother appealed from interim parenting orders made by the primary judge on 26 May 2021. It is relevant to note that apart from interim orders being made on that day, his Honour also mapped out the future direction of the substantive proceeding, and appropriately, made orders for a family report to be prepared in the lead-up to a final hearing, which his Honour set for April 2022.
I mention that because, of course, the option for the mother was to not file an appeal, let the orders play out, and then focus on the final hearing in April 2022. As is obvious, that is not what the mother did. She instead chose to file an appeal against the interim orders, and the point is well made by counsel for Mr Fagin (“the father”) that, despite that, there was no application made for a stay of those orders, and as has happened, in the time it has taken to arrive at the hearing of the appeal today, a number of important aspects of the interim orders made by his Honour have now been effected. In particular, the commencement of overnight time, and the removal of the substantial attendance by the paternal grandmother when the child is with the father.
In any event, to repeat, the choice made by the mother was to file an appeal.
On 17 August 2021, I conducted a directions hearing to list the appeal for hearing and to make orders for the preparation of that hearing. At that time the appeal was still proceeding. I note that 17 August 2021 was after the commencement of overnight time, yet the appeal was, as I say and to repeat, to proceed and continue to a hearing.
One of the orders made on 17 August 2021, was for the mother to file and serve a written summary of argument and list of authorities by the close of business on Friday 10 September 2021. The mother complied with that order, but as it turned out, the summary of argument was not in accordance with the Rules of Court, or the relevant Practice Direction, in that, specifically, the grounds of appeal were not addressed seriatim. That was pointed out to the mother’s solicitor, as I understand it, by the appeal registrar and, as a result, an amended summary of argument was filed late on 23 September 2021. I note that there was no application made for an extension of time to file that summary of argument and, of course, it immediately caused prejudice to the father, because, pursuant to the orders, the father was to file and serve his summary of argument on or before the close of business on Monday 27 September 2021, namely, the Monday following the Thursday when the amended summary of argument was filed. It is also relevant to note here that 24 September 2021 was a public holiday, and 25 and 26 September 2021 was a weekend. Thus, to enable the matter to proceed to the hearing listed for today, which was only then a matter of a few days following the filing of that amended summary of argument, the father's legal representatives worked diligently to file their client's summary of argument on time on 27 September 2021, and that enabled the hearing today to be maintained.
What has now occurred is that at 5:24pm yesterday evening, advice was provided to the appeal registrar that the appeal was being discontinued, and a Notice of Discontinuance was emailed to the court. And it was at that time or thereabouts, as I understand it, that that circumstance was conveyed to the father's legal representatives.
Today, the mother seeks to move on that Notice of Discontinuance. It has not been formally filed because it was received after the time it could be filed in the appeal registry, but, in any event, I propose to dismiss the appeal.
As a result of the attempt to discontinue the appeal, and now the dismissal of it, the father seeks an order for costs, and the costs sought are contained in the schedule of costs filed on 23 September 2021. The amount sought is $10,332.38, comprising both solicitor and counsel fees, calculated on a party/party basis in accordance with Sch 3 to the Rules of Court. I say that because, as of 1 September 2021, new Rules of Court have been introduced, but they do not affect Sch 3.
That application is opposed and, as I understand it, what is sought is that each party bear their own costs in relation to the appeal.
The basis for the application for costs centres on s 117(2A)(c) and s 117(2A)(g) of the Family Law Act 1975 (Cth), namely, the conduct of the mother and the catchall of any other circumstances. It is recognised that when an appeal is discontinued, it cannot be argued that the appeal has been wholly unsuccessful, which, of course, is another factor in s 117(2A), and which can be a justifying circumstance for an order for costs. And in that regard, to return to the position of the mother, and to repeat, the mother seeks that each party bear their own costs. That, of course, is provided for in s 117(1), but as is plain, pursuant to s 117(2), if there are circumstances that justify an order for costs being made, then an order for costs can be made. In terms then of what the court needs to have regard to in making an order for costs, there are the factors set out in s 117(2A).
There is also an overarching discretion that the court has in relation to the question of costs, and by that I mean, for example, even if there is a justifying circumstance providing a basis for an order for costs to be made, this Court still retains a discretion as to whether to order costs or not.
The matters that are said to be the justifying circumstances pursuant to paragraphs (c) and (g) are, as I have referred to, primarily the conduct of the mother, and that relates to the circumstance of the issue that I have outlined in relation to the summaries of argument, and the mother seeking to file the Notice of Discontinuance at the eleventh hour.
In my view, they are circumstances which justify an order for costs being made and, indeed, to his credit, counsel for the father did not submit that there was no justifying circumstance, but put it on the basis that he was neither suggesting there was, nor suggesting that there was not. In any event, in my view, there is.
The basis of the opposition to the application for costs seems to be primarily, the financial circumstances of the parties, and I will come back to that in a moment. There is also a submission put around what has happened in relation to this appeal and the matter generally, and also the motives, the thinking, and the decision-making of the mother.
I attempted to make it clear during submissions that in my view I cannot consider, or take into account the motives of the mother in first, bringing the appeal, and secondly, in discontinuing it. Further, I cannot take into account, as was attempted to be put to me, the thinking of the mother during the time that the appeal has been on foot.
Thus, it seems to me the only possible basis on which the appeal can be opposed, is by considering s 117(2A)(a), namely the financial circumstances of the parties. In relation to that, I am told that the father is employed and earns $74,000, and I assume that is gross, per year. In terms of the mother, she has various sources of income. She works part-time or casually as a designer, and earns approximately $400 per week from that work. She receives a parenting benefit and the family tax benefit of $752 weekly. She owns a property which is rented out, and she receives $600 rental income per week. She also receives child support from the father of $300 per week.
In terms of assets, both counsel agree that there is a modest asset pool, and it was put at between $400,000 and $500,000.
I am told that the value of the property the mother owns is $820,000 but it is subject to a mortgage of $561,000. As to the mother’s expenses or outgoings, I am told that her outgoings exceed her income, and she is assisted financially by her parents. Her major outgoings are that she pays rent of $750 per week, and mortgage repayments of $650 per week.
I note that there is no challenge to the amount of costs sought. The challenge is simply that no costs should be ordered and each party should bear their own costs, and as I say, in my view, the only basis for that can be the financial circumstances of the parties. However, there is ample Full Court authority that in the context of an appeal, even impecuniosity is not a bar to an order for costs being made where there are circumstances which otherwise justify an order for costs being made, and that is how I intend to approach this matter.
There are circumstances otherwise as to why an order for costs should be made, and I have referred already to the issue of conduct and, in very simple terms, and referring to some of the other matters that I have mentioned in these reasons so far, it was the choice of the mother to bring an appeal rather than wait, let the orders be carried out, and then put all her energies into a final hearing. The mother chose to have her solicitors maintain the appeal. They attended the directions hearing, orders were made for the filing of documents, and the consequence of that was the father was obliged to incur legal costs and, as can be seen, costs to the extent of some $10,000 on a party/party basis. Those costs would, in effect, be thrown away if I acceded to the mother's opposition to the application, but I am not prepared to do that. Those costs have been incurred unnecessarily, and the father should be compensated for that.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 8 October 2021
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