Emerson & Greening
[2021] FedCFamC1A 23
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
Emerson & Greening [2021] FedCFamC1A 23
Appeal from: NA – transcript and unpublished reasons Appeal number(s): WEA 7 of 2021
WEA 8 of 2021
WEA 13 of 2021File number(s): PTW 5212 of 2017 Judgment of: STRICKLAND J Date of judgment: 29 September 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the respondent relies on the conduct of the appellant in bringing appeals that had no merit and in pursuing them when there was no utility in doing so given the listing of the final hearing – Where the appellant argues that the appeals had merit and it was reasonable to maintain them until the listing of the final hearing was confirmed – Where in relation to the first and second appeals no costs issues can be said to arise for the respondent from the concerns about the merits of the second appeal given that the orders the subject of that appeal were consequential upon the orders the subject of the first appeal and those appeals ran together – Where the third appeal was an appeal which should never have been brought because the order appealed was not a decree and it was not decisive of the rights of the parties and in any event the grounds of appeal had no chance of success – Where the appeals should have been discontinued as soon after 28 June 2021 as possible but the appellant attempted to obtain an agreement that there would be no costs sought by the respondent and that was a reasonable position to take – Where it was not unreasonable that the Notices of Discontinuance were filed on 13 July 2021 – Where the respondent can only claim minimal costs incurred on a party/party basis between 2 July 2021 and 13 July 2021 – Where the appellant is in poor financial circumstances but impecuniosity is not a bar to making an order for costs where there are circumstances that otherwise justify such an order being made – Costs ordered in favour of the respondent in the sum of $1,400. Legislation: Family Law Act 1975 (Cth) s 4(1), s 94(1), s 117
Family Law Rules (2004) (Cth) Schedule 3
Cases cited: D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Yule v Janek (1978) 139 CR 1; [1978] HCA 4
Number of paragraphs: 50 Date of hearing: 21 July 2021 Place: Perth via telephone to Adelaide Counsel for the Appellant: Mr Hedges of Senior Counsel Solicitor for the Appellant: Sanctuary Legal Pty Ltd Counsel for the Respondent: Mr Rynne Solicitor for the Respondent: Anthony R Clarke & Associates Counsel for the Independent Children's Lawyer: Mr Bannerman Solicitor for the Independent Children's Lawyer: Bannerman Solicitors ORDERS
WEA 7 of 2021
WEA 8 of 2021
WEA 13 of 2021
PTW 5212 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS EMERSON
Appellant
AND: MR GREENING
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
29 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The appellant mother pay the costs of the respondent father of and incidental to appeal no. WEA 13 of 2021 fixed in the sum of $1,400.
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 Emerson & Greening has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
There were three appeals filed in this matter by Ms Emerson (“the mother”) namely WEA 7 of 2021 on 22 March 2021, WEA 8 of 2021 on 24 March 2021, and WEA 13 of 2021 on 26 May 2021.
Those appeals were respectively against orders made by a Family Law Magistrate of the Magistrates Court of Western Australia on 11 March 2021 and 18 March 2021, and one of the orders made by another of the Family Law Magistrates of the Magistrates Court of Western Australia on 14 May 2021.
The appeals are opposed by Mr Greening (“the father”), and on 13 July 2021 they were all discontinued by the mother. As a result, on 21 July 2021 the father made an oral application for costs.
The total amount of the costs sought was $15,906.49 purportedly calculated on a party/party basis in accordance with Schedule 3 to the former Family Law Rules 2004 (Cth). They represented the costs incurred from the time of the service of the first appeal on the father, up to and including the hearing on 21 July 2021.
In summary, the basis of the application for costs was that the appeals should have been discontinued far earlier than they were, given there was no utility in them proceeding once the final hearing of the substantive proceedings had been expedited. It was also argued that the appeals had no merit in any event.
RELEVANT BACKGROUND
The orders made on 11 March 2021 were made partway through the final parenting orders hearing, and whilst the mother was still under cross-examination. They were interim parenting orders suspending the previous live with and spend time with orders providing for the child the subject of the proceedings to live with the father, for the father to have sole parental responsibility, and adjourning the matter to 18 March 2021.
On 18 March 2021, various orders were made by consent, but no change was made to the status quo, and the proceedings were transferred to the Family Court of Western Australia.
On 24 March 2021, the mother filed an application seeking the recusal of the Magistrate, who made the first two sets of orders, a stay of those orders, and the discharge of the Independent Children’s Lawyer (“ICL”).
On 28 April 2021, the Magistrate recused himself and referred the balance of the application to the other Family Law Magistrate.
On 29 April 2021, the father filed an application seeking orders restraining the mother’s solicitor and counsel from acting for her.
On 3 May 2021, the matter came before the newly appointed Magistrate. His Honour advised the parties that he could recommence the final hearing in the week of 20 September 2021, but that could not happen if the father’s application to restrain the mother’s solicitor and counsel from acting, and the mother’s application seeking discharge of the ICL, were pressed.
The matter was adjourned to 10 May 2021, and then further adjourned to 14 May 2021.
On 14 May 2021, the father’s application was listed for hearing on 23 September 2021, the balance of the matters were adjourned generally, and supervised time was ordered. That effectively meant that the final hearing could not resume in September 2021.
The order providing for the adjournment was the subject of the third appeal.
On 18 May 2021, the listing of the hearing of the father’s application was changed from 23 September 2021 to 25 June 2021, and on that basis the Magistrate advised that the final hearing could resume on 13 September 2021. Subsequently, that date of 25 June 2021 was changed administratively to 11 June 2021.
The appeals first came before this Court on 9 June 2021 on the mother’s application to consolidate them and to have the hearing expedited.
Orders were made consolidating the appeals, but I refused to expedite the hearing whilst the applications to restrain the mother’s solicitor and counsel were still unresolved.
This Court was made aware of the prospect of the final hearing resuming in September 2021, and accordingly, I raised the issue of the utility of the appeals. I also took the opportunity to raise concerns that I had with the appeals, and primarily with the second and third appeals. The grounds of appeal asserted in the second appeal were just a repeat of those asserted in the first appeal, despite the orders not being the same. In relation to the third appeal, I expressed the view that it was not a valid appeal given the absence of a decree which could be the subject of an appeal. I also indicated a preliminary view that the grounds of appeal had no merit.
Further consideration of the appeals was then adjourned to 28 June 2021 to await the outcome of the father’s application to restrain the mother’s solicitor and counsel from acting for her. That application though was not dealt with on 11 June 2021, and the matter was next listed before the Magistrate on 18 June 2021.
On 18 June 2021, the parties discussed with the Magistrate that the final hearing would be able to resume on 11 October 2021, rather than in September 2021, and on that basis the appeals would not be proceeding, and Notices of Discontinuance would be filed once the resumed trial date was confirmed.
With the father’s application, that did not proceed to argument and was adjourned to 24 June 2021. However, it still was not dealt with on that day and the proceedings were complex-tracked.
On 28 June 2021, the parties were advised by the court that the Chief Judge had listed the father’s application, and the balance of the mother’s application, for hearing on 16 July 2021, and the final hearing would resume before the Magistrate on 11 October 2021.
At the hearing before this Court on that same day, I was advised of the listings and adjourned further consideration of the appeals to 21 July 2021.
On 2 July 2021, the mother’s solicitors wrote to the father’s solicitors advising that the mother would discontinue the appeals upon confirmation of the trial being listed to resume on 11 October 2021, and the father agreeing that there should be no order as to costs.
On 5 July 2021, the father’s solicitors responded, referring to the notification from the court on 28 June 2021 as to the listing in October 2021, and then seeking confirmation that the mother would discontinue the appeals and pay the sum of $10,000 towards the father’s costs.
On 6 July 2021, the parties received an email from the court again advising of the date for the resumption of the final hearing.
On 13 July 2021, the mother filed Notices of Discontinuance of the appeals, leaving the question of costs to be dealt with on 21 July 2021.
On 16 July 2021, the Chief Judge heard the applications of the parties and reserved her decision.
THE RELEVANT LEGISLATION
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs the question of costs, and that section 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.
As can be seen, the primary position is that each party is to bear their own costs, but if there are circumstances that justify it, an order for costs can be made. For that purpose the relevant factors in s 117(2A) are to be considered in determining whether an order for costs should be made.
Here, the father relies on the conduct of the mother (s 117(2A)(c) and/or (g)) in bringing appeals that had no merit, and in pursuing those appeals where there was no utility in doing so because of the listing of the final hearing.
The mother argues that the appeals had merit, and that it was reasonable to maintain the appeals until the listing of the final hearing was confirmed.
As to the merits of the appeals, although there were real concerns with the second appeal, given that the orders the subject of that appeal were consequential upon the orders the subject of the first appeal, and that there were no obvious concerns about that appeal, and further, that those two appeals ran together, no costs issues can be said to arise for the father from the concern about the merits of the second appeal. In other words, there would have been minimal costs incurred in relation to the second appeal over and above the costs incurred in addressing the first appeal.
However, the position is different with the third appeal. That was an appeal which should never have been brought. The primary reason for that is that an appeal can only be brought from a decree (see the former s 94(1) and s 4(1) of the Act), and the order appealed was not a decree; it was not decisive of the rights of the parties (see Yule v Janek (1978) 139 CLR 1).
If I am wrong about that, then it was readily apparent that the grounds of appeal had no reasonable chance of success.
Thus, prima facie, the father should have his costs in dealing with this appeal, and I will return to that shortly.
As to the utility of the appeals, the question of costs depends on when it can be said that the date of the resumed final hearing was set such that the appeals became futile and should have been discontinued.
Although there was discussion in early May of the final hearing being listed in September, that came to nothing when the father’s restraint application could not be listed until then.
The possibility of the listing in September again arose on 18 May 2021 when the hearing of the father’s application was changed to 25 June 2021, but a September date was never formally confirmed by the court, and indeed, in mid-June the discussion was around a listing in October.
On 18 June 2021, on the basis of the final hearing resuming on 11 October 2021, the mother’s senior counsel indicated to the court that the appeals would not be proceeding, and Notices of Discontinuance would be filed once that date was confirmed.
That confirmation came on 28 June 2021, when the court advised the parties of the listings of the applications and of the final hearing.
Thus, in my view, the appeals should have been discontinued as soon as possible after that date, and I suggest by no later than the end of that week, namely 2 July 2021.
As is apparent though, what the mother’s solicitors did instead, was to attempt to obtain an agreement that there would be no costs, but that was not successful, and to repeat, the Notices of Discontinuance were ultimately filed on 13 July 2021.
I do not consider that it was unreasonable to attempt to negotiate the question of costs, and thus I do not consider it unreasonable that the Notices were not filed until 13 July 2021. In any event, in considering the Amended Schedule of Costs filed on 20 July 2021 and relied on by the father, there are minimal costs that could be claimed to be incurred on a party/party basis between 2 July 2021 and 13 July 2021.
Thus, there is no basis to award costs to the father because the appeals ultimately lacked utility.
To return to the costs associated with the third appeal. Doing the best I can in identifying relevant items from the father’s Amended Schedule of Costs, and in particular deleting those items which are solicitor/client and not party/party, the amount that should be allowed for these costs is $1,400.
There is then the question of any costs in relation to the hearing on 21 July 2021.
The costs sought in the father’s Amended Schedule of Costs for that event comprises $823.70 for counsel fees. The solicitor fees in the Amended Schedule totalled $381.88 for drafting, finalising, filing and serving the Schedule, however, this Court does not allow such costs to be claimed.
Plainly there was no agreement about the question of costs following upon the appeals being discontinued, but equally plainly it can be seen that the application for costs by the father is only partially successful, and in a far lesser amount than was sought. Thus, I am not disposed to order the costs of the hearing to be paid by the mother.
That leaves only one issue, and that is to take into account the financial circumstances of the parties as required by s 117(2A)(a), and the issue here is the poor financial position of the mother. I am told she has no employment, and she receives a supporting parent benefit. She also has no assets to speak of. However, there is ample Full Court authority that impecuniosity can be no bar to making an order for costs where there are circumstances that otherwise justify an order being made (D & D (Costs)(No 2) (2010) FLC 93-435). That is the case here, and thus I propose to make an order that the mother pay the father’s costs of and incidental to the third appeal fixed in the sum of $1,400.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 29 September 2021
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