Danes & Danes - [2014] FamCAFC 158

FAMILY COURT OF AUSTRALIA

DANES & DANES AND ANOR

[2014] FamCAFC 158

FAMILY LAW – COSTS – Where the appellant had previously failed to comply with directions – where the applicant filed a Notice of Discontinuance – where the respondents were self-represented – where the appellant directly briefed counsel – where the Independent Children’s Lawyer sought her costs – where the court was not persuaded that the appeal had any merit – whether there are circumstances justifying a departure from s 117(1) of the Family Law Act 1975 (Cth) – Appellant ordered to pay the Independent Children’s Lawyer’s costs in a fixed amount.

Family Law Act 1975 (Cth)
Family Law Rules 2004

Bostoi & Bostoi (2011) FamCAFC 132
Lenova & Lenova [2011] FamCAFC 141

APPELLANT:

Ms A Danes

FIRST RESPONDENT:

Ms C Danes

SECOND RESPONDENT:

Mr Bray

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

6705

2011

APPEAL NUMBER:

2013

DATE DELIVERED::

20 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Murphy and Aldridge JJ

HEARING DATE:

20 August 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

28 March 2013

LOWER COURT MNC:

[2013] FMCAfam 281

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hodgson

SOLICITOR FOR THE APPELLANT:

Direct Brief

THE FIRST RESPONDENT:

Self-Represented

THE SECOND RESPONDENT:

Self-Represented

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Christie

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The appellant pay within three months of the date of these Orders the Independent Children’s Lawyers costs, including the costs reserved by this Court on 13 May 2014, fixed in the sum of $4260, in respect of the appeal discontinued by way of Notice of Discontinuance filed by the appellant on

14 August 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Danes & Danes and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA46 of 2013
File Number: SYC 6705 of 2011

Ms A Danes

Appellant

And

Ms C Danes

First Respondent

And

Mr Bray

Second Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Murphy J

By Notice Of Appeal filed on 24 April 2013, Ms A Danes appeals orders made by Judge Foster on 28 March 2013. Those orders dismissed an application by Ms A Danes that sought parenting orders in respect of her two granddaughters. On 14 August 2014, that is to say some six days prior to the hearing of this appeal, a Notice of Discontinuance was filed by the appellant.
An application for costs has been filed by the Independent Children’s Lawyer (“ICL”). Pursuant to rule 22.42(2) of the Family Law Rules 2004 (Cth) (“the Rules”), a party who discontinues an appeal “…may be ordered to pay the costs of all other parties.” If the prima facie rule provided for in section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is to be overcome, the facts and circumstances must be examined in search of a justifying circumstance(s).
A consideration of that involves primarily an examination of the appellant’s conduct in and about her appeal. In 2013, an application to extend time in respect of the appeal index made by the appellant was granted. On 5 February 2014, following a number of procedural orders not relevant to the instant application, the Appeals Registrar made orders setting a timeframe for the parties to file and serve outlines of argument. The appellant failed to comply with those directions, which required that she file her summary of argument by 14 March 2014.
On 9 April 2014, the Appeals Registrar wrote to each of the parties, indicating that, as a result of the appellant’s failure to comply with the directions, the appeal would be listed before this Court for the purpose of considering whether her appeal ought be dismissed.
Prior to the hearing convened for that purpose, the appellant filed a summary of argument, which was, apparently, settled by counsel, on 8 May 2014. On 13 May 2014, the issue of whether or not the appellant’s appeal should be dismissed was heard by a differently constituted Full Court. The ICL appeared at that hearing.
Ultimately, that Full Court determined not to dismiss the appeal and made orders for the filing of submissions by the respondents, who did not appear at that hearing, and by the ICL. The ICL’s costs were reserved. Subsequently, submissions were filed by each of the parties.
Whilst Ms A Danes was represented by counsel at the trial and at the hearing before the Full Court on 13 May 2014, a Notice of Address for Service filed on 4 July 2014 suggested that, at least by that stage, she was representing herself in respect of the appeal. Indeed, the Notice of Discontinuance filed on 14 August 2014 was, it seems, prepared by her alone. Today, Mr Hodgson of counsel appears on her behalf, by way of direct brief.
An affidavit of Ms N accompanied the ICL’s application for costs. Attached to that affidavit was a costs notice, prepared pursuant to r 19.04 of the Rules. That notice discloses that the ICL has incurred a total of $4260 in costs in the preparation of the appeal, including $2460 in respect of counsel’s fees. Those fees are rendered in accordance with the relevant Legal Aid scale, in respect of which, it might be observed, composite amounts are provided for.
Both respondents to this appeal, that is, the parents of the subject children, are self-represented. Both relied upon the same summary of argument, which was confined to nine paragraphs. The respondents opposed the appeal, as did the ICL. The thorough submissions filed on behalf of the ICL were prepared by counsel and comprehensively addressed each ground of appeal. With the greatest respect to the self-represented respondents, the need for the ICL’s involvement in the appeal, so as to illuminate properly the issues for this Court, is patent.
Section 117(2A) of the Act sets out the factors to which this Court must have regard in determining whether an order for costs ought be made. There is no doubt that, subject to section 117(4) of the Act, an Independent Children’s Lawyer is entitled to seek their costs of an appeal (see, for example, generally, Bostoi & Bostoi (2011) FamCAFC 132 at [128]-[131]). There is no suggestion that the appellant was legally aided and thus section 117(4) has no application.
The appellant discontinued her appeal some six days before it was listed to be heard by this Court. By that time, the matter had already been before the Full Court on one prior occasion, as a result of the appellant’s failure to comply with directions as to the filing of a summary of argument. She had previously, some 12 months prior to that, been extended the courtesy of an extension of time.
Significantly, the appellant’s conduct in that respect necessitated an appearance by the ICL before a differently constituted Full Court, so as to consider the application that her appeal be dismissed. By the time the Notice of Discontinuance had been filed, the ICL had filed comprehensive written submissions which were settled by counsel and, being less than a week prior to the hearing of the appeal, counsel for the ICL had prepared for the appeal.
Conduct, within the meaning of section 117(2A) of the Act, is, in my view, a highly important consideration in this case and a justifying circumstance in respect of an award of costs. Nothing said by counsel for the appellant before us persuades me that the appeal had, in any event, any substantive merit.
We have been told about the financial circumstances of the appellant, first by counsel for the ICL, by reference to the appeal books. It appears that, in November 2011, the appellant was employed in a stable job. At page 319 of the appeal book, counsel refers us to affidavit material by the appellant that suggests that her financial position had become somewhat worse between December 2012 and February 2013.
Plainly, the appellant’s financial circumstances are a matter that ought inform the discretion as to whether costs should be awarded. However, as this Court has said, for example, in Lenova & Lenova [2011] FamCAFC 141, if financial impecuniosity or something approaching financial impecuniosity was to be a disqualifying factor in an award of costs, litigants could litigate in this Court with impunity, and immunity.
I am not persuaded, in the exercise of the discretion, that the financial circumstances of the appellant should otherwise count against an award of costs which, in my view, is well justified in the circumstances of this case to which I have earlier made reference.
I would order that the appellant pay ICL’s costs of and incidental to this appeal, including the costs reserved on 13 May 2014. Nothing said by counsel for the appellant persuades me that the amount sought by way of a fixed sum by the ICL, in a total amount of $4260, is other than an amount perfectly reasonable in all of the circumstances and I would fix the costs in that amount.

Ainslie-Wallace J

I agree with the reasons given by Justice Murphy and also agree that in this matter an order for costs to be made.

Aldridge J

I also agree.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 20 August 2014.

Associate:

Date: 28 August 2014