Draper & Corwin

Case [2021] FamCAFC 143

FAMILY COURT OF AUSTRALIA

Draper & Corwin [2021] FamCAFC 143

Appeal from: Consent Orders made 5 August 2020
Appeal number(s): SOA 99 of 2020
File number(s): MLC 4817 of 2020
Judgment of: STRICKLAND J
Date of judgment: 9 August 2021
Catchwords:

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no satisfactory reason for the failure to file a Notice of Appeal within time – Where there is no basis for leave to appeal being granted and even if there was the appeal has no chance of success – Where to allow the proposed appeal to proceed would prejudice the respondent far more than the applicant – Application dismissed.

COSTS – Where the respondent seeks costs on an indemnity basis – Where the circumstances justify an order for costs being made – Where there are exceptional circumstances which warrant an order for indemnity costs – Costs fixed in the sum of $8,000 pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth).
Legislation:

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.18(1)(a)

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

D & D (Costs) (No. 2) (2010) FLC 93-435; [2010] FamCAFC 64

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Kohan and Kohan (1993) FLC92-340; [1992] Fam CA 116

Limousin & Limousin (Costs) (2007) 38 FamLR 478; [2007] FamCA 1178

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Division: Appeal Division
Number of paragraphs: 54
Date of hearing: 19 February 2021
Place: Melbourne via Microsoft Teams
The Applicant: In Person
Solicitor for the Respondent: KCL Law
Counsel for the Respondent: Mr Strum SC

ORDERS

SOA 99 of 2020
MLC 4817 of 2020

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR DRAPER

Applicant
AND:

MS CORWIN

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

9 AUGUST 2021

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 22 December 2020 be dismissed.

2.The applicant father pay the costs of the respondent mother fixed in the sum of $8,000.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

INTRODUCTION

  1. Before the Court is an Application in an Appeal filed by Mr Draper (“the father”) on 22 December 2020 seeking an extension of time to file a Notice of Appeal from consent orders made by a Judge of the Family Court of Australia on 5…

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Draper & Corwin [2021] FamCAFC 143
Case
[2021] FamCAFC 143
Decision Date

CaseChat Overview and Summary

The matter before the Family Court of Australia in Draper & Corwin was an application by the father, Mr Draper, for an extension of time to file a Notice of Appeal. The respondent, Ms Corwin, opposed the application. The appeal related to an earlier decision made by the court in family law proceedings. The court was required to decide whether to grant the father’s application for an extension of time and, if so, whether to grant leave to appeal. Additionally, the court had to consider whether to award costs to the mother.

In assessing the application, the court considered three main factors. Firstly, the court found that there was no satisfactory reason for the father’s failure to file the Notice of Appeal within the prescribed time. Secondly, the court determined that there was no basis for granting leave to appeal, and even if there was, the grounds of appeal had no chance of success. Finally, the court concluded that allowing the appeal to proceed would prejudice the mother far more than the father. Based on these findings, the court dismissed the father’s application for an extension of time and leave to appeal.

The court then turned to the issue of costs. The mother sought an order for costs on an indemnity basis, arguing that the circumstances justified such an order. The father opposed any order for costs. The court found that an order for costs was justified and awarded the mother $8,000, calculated on an indemnity basis. The court noted that the amount was limited to solicitor’s costs, as senior and junior counsel appeared pro bono.

The court ordered that the application for an extension of time and leave to appeal be dismissed and that the father pay the mother’s costs in the sum of $8,000.

Orders

Orders of the court

SOA 99 of 2020

MLC 4817 of 2020

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR DRAPER

Applicant

AND:

MS CORWIN

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

9 AUGUST 2021

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 22 December 2020 be dismissed.

2. The applicant father pay the costs of the respondent mother fixed in the sum of $8,000.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the other hand, if the application is dismissed, the father would not be able to proceed with his Application for Leave to Appeal and the appeal. There is also no appeal from a refusal to grant an application seeking an extension of time, although there is the possibility of making an Application for Special Leave to Appeal to the High Court of Australia, but that in itself is a difficult application to make, and the question here would be whether it was warranted, or, indeed, whether it would even be successful. However, the inability to proceed with the Application for Leave to Appeal and the appeal is significantly ameliorated by the fact that there is no merit in the Application for Leave to Appeal or the appeal if leave is granted. Thus, if time was extended, and the father pursued the Application for Leave to Appeal and the appeal, then almost certainly he would be unsuccessful. Thus, in reality there would be no prejudice to the father if the application is dismissed.CONCLUSION The consideration of those three principal factors informs the decision as to whether it is necessary to extend the time to do justice between the parties. Having found that there is no satisfactory reason for the failure to file a Notice of Appeal within time, and significantly, having found that there is no basis for leave to appeal being granted, and even if there was, the ground of appeal has no chance of success, and finally, that to allow the proposed appeal to proceed would prejudice the mother far more than the father, it is not in the interests of justice to grant the application, and it must be dismissed.COSTS On the basis that the application would be dismissed, the mother made an application for costs. She sought the amount of $11,130 calculated on an indemnity basis. Alternatively, she sought the amount of $4,837 calculated on a party/party basis. I note that those costs are limited to the solicitor’s costs given that senior and junior counsel appeared pro bono. The father opposed any order for costs being made. The first question is whether a costs order should be made at all. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs any application for costs whether it is in the context of an appeal or a first instance hearing, and relevantly provides as follows:(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.(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…

Ratio Decidendi

Legal Principle Established

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