DRAKE & WILSON
[2015] FCCA 841
•16 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRAKE & WILSON | [2015] FCCA 841 |
| Catchwords: FAMILY LAW – Application for summary dismissal – costs ruling. |
| Legislation: Family Law Act 1975, s.117(2) |
| Carnell v Carnell [2006] FMCAfam 476 |
| Applicant: | MR DRAKE |
| Respondent: | MS WILSON |
| File Number: | MLC 1665 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 16 March 2015 |
| Date of Last Submission: | 16 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 16 March 2015 |
REPRESENTATION
| The Applicant: | No Appearance |
| Counsel for the Respondent: | Ms Devine |
| Solicitors for the Respondent: | Berry Family Law |
ORDERS
All extant applications are dismissed pursuant to s.17A of the Federal Circuit Court of Australia Act 1999.
The applicant pay the respondent’s costs to be taxed in an indemnity basis.
Costs on an indemnity basis are to be fixed by the Court in Chambers.
IT IS NOTED that publication of this judgment under the pseudonym Drake & Wilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 1665 of 2013
| MR DRAKE |
Applicant
And
| MS WILSON |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The respondent, Ms Wilson, seeks the summary dismissal of Mr Drake's Initiating Application, filed in the Victorian Magistrates’ Court on 21 August 2014, and subsequently transferred to this Court. It will be necessary to return to the form of orders sought in due course, but they may be summarised as seeking what is sometimes called substitution orders in respect of payments made on behalf of two children, and an application to go back well before the
18 month statutory time limit in respect of the applicant father’s obligations (or otherwise) to support his partner and her children arising from 1 July 2007 onwards. There was also an interim application for a stay of payment, and a proposal that $50 per week be paid instead.
The affidavit filed in support of that application is relatively lengthy.
It deposes to a lengthy history of legal proceedings between the parties, although, as has become apparent, it was by no means complete in that regard. There is a fair amount said by way of complaint about the respondent mother and her capacities as a mother in the way she treats the children and the like.
The gravamen of the affidavit, so far as it relates to order 1, is at paragraph 7 and essentially notes the proposition that the father would be much happier if payments made on behalf of his daughter – and I always struggle with these, particularly the Irish names.
RECORDED : NOT TRANSCRIBED
HIS HONOUR: X, yes, born on (omitted) 1998. If he could make payments directly to such people as orthodontists and the like, rather than paying child support to the mother. In respect of Y, the same application is made, although Y is now well over 18, having been born on (omitted) 1995. And, indeed, she was well over 18 at the time this application was originally filed.
The affidavit goes on to depose as to his relationship with his current partner, Ms Q, in 2007 and her two children of whom one was over 18 at the time of the application and the other was born in 2000. The gravamen of what was asserted by way of this affidavit is that it had been necessary for Mr Drake to support his partner and her children, and the picture he would paint would be of little, if not no, involvement on the part of those children’s natural father. The financial statement filed contemporaneously is neither here nor there for present purposes.
The Response to that Application, filed on 22 September 2014, seeks relevantly for these purposes at the moment that the application be summarily dismissed. Although there was no specific reference to s.17A of this Court’s Act, it is perfectly clear, and would have been perfectly clear to the applicant, and more particularly his then legal advisers, that summarily disposal of the matter was being sought.
The mother did file a Financial Statement but, once again, nothing turns on that for these purposes. But, more interestingly, she filed an affidavit from the natural father of the two children of the applicant’s partner. That affidavit asserts that the two children had, in fact, lived with him (Mr K) and Ms Q on an equal time basis following separation until they subsequently both went to live full time with the father.
Mr K also deposes to having paid such child support as he was required to pay, and goes on to assert that there has been subsequent reassessment so that Ms Q has to now pay him child support. Although the evidence has not been tested by cross-examination, it is certainly a radically different picture to that painted in the father’s material.
In her affidavit, which is substantial, the respondent mother details the enormous scope of the child support litigation between the parties. She takes issue in the strongest terms with all the criticisms made of her. She sets out at great length the various decisions of the administrators who have considered the administrative applications for reassessment and, more particularly, sets out at W9 the most recent decision of the Social Security Appeals Tribunal (“SSAT”) which reassessed Mr Drake’s income, this being a decision posted on 13 May 2014.
Once again, it is possible to traverse the material in that decision generally but it must be said that the picture that emerges of so much of the application that might turn upon Ms Q is radically different to that in materials filed by the father, and would appear to, at the very least, give rise to a strong possibility of an issue estoppel in relation to some of the matters asserted about her.
As things now stand, the applicant is no longer legally represented and he has not attended Court this morning. That, of course, in large part, is because he is bankrupt. It should be noted that the orders that were originally made before Judge Halligan, which put in place the regime that the applicant now seeks to displace, were made by consent in 2013 at a time when both parties were legally represented.
The correspondence on the file shows that on 29 January 2015 Mr Drake emailed my associate in the following terms:
“To whom it may concern
Please adjourn my case which was scheduled for tomorrow as my Solicitor has withdrawn due to me being made bankrupt and not knowing who the appointed trustees are as yet.
It would be a waste of everyones [sic] time and money to proceed tomorrow.”
The respondent’s solicitors acceded to that request, with some reluctance, but sought a reasonably early hearing. The matter was then relisted till today, administratively, on 29 January. From that, it follows inextricably that the applicant has had plenty of time to put on any material he might be wish to put on, and that he is well aware of the matter being in Court today.
Counsel, as I have indicated, on behalf of the respondent seeks the summary dismissal of the application pursuant to s.17A of this Court’s Act. That, of course, enables an application to be dismissed if there are circumstances in which the case has no reasonable prospects of success. And a case need not be hopeless or bound to fail for it to have no reasonable prospects of success by virtue of s.17A(3). Counsel has pressed the Court to adjudicate the matter on its merits rather than to simply dismiss for the non-attendance of the applicant.
So far as order 1 sought in the Initiating Application is concerned, relating to X, it is submitted that the application has no reasonable prospects of success as the affidavit material, as filed, shows that, in effect, very little money has ever been voluntarily paid by the father, and that he has used every avenue conceivably available to him to frustrate the payment of any money to the mother. Accepting, as I do, that I have not seen either of the parties in the witness box, in my view that is an accurate characterisation of the materials.
Indeed, one only has to look at the amount payable which, from memory, is 60 something dollars a month – no, a week, I think, the total sum that is likely to be paid until X turns 18 are trifling. And while it is a matter of construing the materials as a whole, the picture that emerges for me as being inescapable is that this applicant has been and remains prepared to, effectively, spend whatever he can and whatever he needs to to ensure that the mother does not get what, on any view, are modest amounts of money, even if one were to accept that the father is accurate in his complaints that she is much better off than he is.
So far as order 2 sought in the Initiating Application is concerned, I fully accept the submission that the child Y, having turned 18 before the application was brought, the application cannot possibly succeed.
So far as the application to go back beyond 18 months is concerned by virtue of Ms Q, I have to say that, faced with the effectively uncontradicted affidavit material of her former partner and with the decision of the SSAT in annexure W-9, I am satisfied that this application has no reasonable prospects of success either. The materials as set out very, very strongly suggest that this is an after-thought designed, once again, to muddy the waters.
So far as any obligation might be said to have subsisted to support the step-children on the part of the father, Carnell v Carnell [2006] FMCAfam 476 does not, of course, go so far as to say that no such order can ever be made, but it is clear that such an order would only be contemplated inter alia in circumstances where the relevant parents were making no proper endeavours to support them anyway. And on Ms Q’s husband’s evidence, that is simply not made out, and the same picture is reinforced by the decision of the SSAT.
In the circumstances, I will summarily dismiss the application pursuant to s.17A of the Act.
In this matter the successful respondent seeks costs, and that they be paid on an indemnity basis. I indicated that I was not troubled by the question of costs per se, but that I wished to hear further about the question of indemnity costs.
Section 117 of the Family Law Act 1975 sets out the Court’s powers in this regard. The prima facie rule, if it may be so described, is in s.117(1) which is that each party bear their own costs. But pursuant to subsection (2) the Court may, subject to various other subsections, if it is of the opinion that there are circumstances that justify in doing so, make an order for costs.
The Court is required to consider the financial circumstances of each of the parties. The applicant father has consistently asserted that he is nowhere near as well off as the various authorities who examined his income from time to time say, but I note that the SSAT as recently as last year said his income was in excess of $80,000. That followed a contested hearing, I should say.
The respondent’s position is more opaque. She has much smaller income and has had, and continues to have, substantial child rearing costs and responsibilities, but she has the good fortune to have a helpful and wealthy partner, which is scarcely something one can totally ignore.
The next question is whether there are any issues to do with legal aid and, as I understand it that is not the case. The next subsection deals with the conduct of the parties to the proceedings, and in relation to pleadings and the like. The conduct of the applicant here that falls for criticism, in my view, is issuing this matter in the Melbourne Magistrates’ Court. The pleadings and other materials, while prolix, are not of themselves, in my view, necessarily objectionable.
But this was a litigant who well knew that this was the Court he should be coming to. The orders he was seeking to impugn were made in this Court. It is not as if he lives in the country and had to go to a local court up there. It plainly should have been issued here. And all the moneys thrown away as a result would plainly be a relevant consideration, in my view, both as to costs generally and as to indemnity costs.
The next matter, subsection (d), is not really relevant, although I doubt that the applicant husband has complied with previous orders of the Court. The next order is whether a party has been wholly unsuccessful, and the applicant unquestionably has. In relation to two thirds of his case, I would accept the submission made by counsel for the respondent that his case was doomed to fail.
The second child was over 18 at the time the application was lodged. It is not possible, as things presently stand to understand how he could have thought that could have been successful on a prospective basis, which is what he was seeking. He refers to payments to be made in the future but there is no order for adult child maintenance.
The other matter relating to his partner Ms Q, was also doomed to fail because he had been through all this with the SSAT and lost. So that is very important.
The third aspect of his claim could conceivably have had some sort of legs, albeit that taking the materials as they stand I deemed it to have no reasonable prospects of success. The applicant may not know that his bankruptcy does not conclude this proceeding. It is conceivable, therefore, he failed to attend for that reason, against which he does seem to be a relatively experienced litigant. More importantly, however, the materials, taken as a whole, show an unending pattern of litigation over what, even though the current total outstanding is quite large, would probably historically have been relatively minor amounts accruing from time to time.
The total that can accrue in relation to X, of approximately two-odd years I think, is small on any view. In my view, I am entitled to form the inference that this has indeed been part of an ongoing issue and the materials would strongly suggest it. In my view, the Court should mark its disfavour with that kind of conduct, especially starting in what was deliberately the wrong court, and one can only assume with a view to making that more onerous and arduous for the respondent.
And, accordingly, in all the circumstances, in my view, this application has about it that quality of speciality that the authorities show is required to make it appropriate for the Court to mark its disapproval by an order for indemnity costs which, it should be remembered, is not done to punish the unsuccessful party but to compensate the successful party against losses that she would otherwise be poorly equipped to bear.
RECORDED : NOT TRANSCIBRED
So there will be an order for costs on an indemnity basis, to be fixed by the Court in chambers.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 8 April 2015
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