EMMETT & EMMETT
[2011] FamCAFC 213
•29 July 2011
FAMILY COURT OF AUSTRALIA
| EMMETT & EMMETT | [2011] FamCAFC 213 |
| FAMILY LAW – APPEAL – Application for leave to appeal out of time – Where the wife believed the notice of appeal had been filed within time – Where there was a delay in the wife receiving the reasons for judgment of the trial judge – Where the reason for the delay in filing the notice of appeal was satisfactory explained – Where the husband does not resist an order granting the wife an extension of time, but rather asks that the appeal in which the wife seeks an extension of time should be subject to the same security for costs application as the appeals currently filed if leave is granted – Application allowed FAMILY LAW – APPEAL – Application for the court to provide the transcripts of the trial – Where the cost of the transcripts is $8000 – Where the wife submitted that she is unable to purchase the transcripts due to her current financial circumstances – Where the wife believes that the transcripts are necessary given the complex nature of the case and for the wife to receive fair hearing – Where the husband submitted that this case is only exceptional given the wife’s conduct – Where it was said that the appeals concern property proceedings and given the wife’s prospects of success are poor, the court’s limited resources should not be expended on the purchase of the transcripts – Where the husband is unable to afford to contribute to the costs of the transcript – Where the husband submitted that the wife has the capacity to earn additional income and therefore an ability to pay for the transcript – Judgment in relation to the wife’s application for the provision of the transcript be reserved pending the payment by the wife of security for costs FAMILY LAW – APPEAL – Application for security costs – Where the appeals do not have a strong prospect of success – Where there are unpaid costs orders against the wife – Where the interests of a party seeking to defend an appeal of doubtful merit must be afforded some protection by the court – Appeals to be dismissed unless the wife pays the sum of $27,000 by way of security for costs – Application allowed FAMILY LAW – COSTS – Each party pay their own costs of application for security for costs – No further order as to costs made |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 19.05; r 19.05(2); r 22.18 |
| Adult Guardian and Mother’s Parents v B and Child’s Representative (2002) FLC 93-116 Ansilda & Hartford [2009] FamCAFC 128 Forbes & Bream (2008) 222 FLR 96 Fortnum & Fortnum (No. 2) [2008] FamCAFC 73 Gallo v Dawson (1990) 93 ALR 479 Jones and Jones (2001) FLC 93-080 JRS & KM (2005) FLC 93-223 Luadaka & Luadaka (1998) FLC 92-830 Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220 |
| APPLICANT/ CROSS RESPONDENT: | Ms Emmett |
| RESPONDENT/ CROSS APPLICANT: | Mr Emmett |
| FILE NUMBER: | TVC | 710 | of | 2010 |
| APPEAL NUMBER: | NA | 21 | of | 2010 |
| NA | 29 | of | 2010 | |
| NA | 81 | of | 2010 | |
| NA | 40 | of | 2011 | |
| NA | 41 | of | 2011 |
| DATE DELIVERED: | 29 July 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ainslie-Wallace & Young JJ |
| HEARING DATE: | 31 May 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 January 2010 |
| LOWER COURT MNC: | [2010] FamCA 57 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Mr Barry Wilson Ryan & Grose |
Orders
That the wife have leave to file a notice of appeal out of time against the orders of Watts J made 17 November 2010, in appeal NA 40 of 2011, and the time within which the appeal may be filed be extended to 5 August 2011.
That the wife have leave to file a notice of appeal out of time against the orders of Watts J made 22 December 2010, in appeal NA 41 of 2011, and the time within which the appeal may be filed be extended to 5 August 2011.
That the appeals NA 21 of 2010, NA 29 of 2010, NA 81 of 2010, NA 40 of 2011 and NA 41 of 2011 be dismissed unless on or before 31 October 2011 the wife pays the sum of $27,000.00 by cash or bank cheque by way of security for costs of the appeals to the husband’s solicitors trust account.
Upon such sum being paid to the solicitors, the moneys be held in a separate account to be dispersed upon further order of the court.
That each party pay their own costs of the application for security for costs.
Further, it is directed that upon payment of the security for costs to the husband’s solicitor, the appeals NA 21 of 2010, NA 29 of 2010, NA 81 of 2010, NA 40 of 2011 and NA 41 of 2011 be listed for hearing and be heard together.
IT IS NOTED
That the reasons for judgment in relation to the wife’s application for the provision of the transcript be reserved pending the payment by the wife of security for costs.
IT IS NOTED that publication of this judgment under the pseudonym Emmett & Emmett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 21 of 2010; NA 29 of 2010; NA 81 of 2010; NA 40 of 2011; NA 41 of 2011
File Number: TVF 2766 of 2000; TVC 710 of 2010
| Ms Emmett |
Applicant/ Cross Respondent
And
| Mr Emmett |
Respondent/ Cross Applicant
REASONS FOR JUDGMENT
Introduction
These proceedings concern applications in a number of appeals where the wife is the appellant:
· The wife’s applications for leave to appeal out of time in relation to two appeals, NA 40 of 2011 and NA 41 of 2011; and
· The wife’s application for the court to purchase the transcript of proceedings relating to three appeals, NA 21 of 2010, NA 29 of 2010 and NA 81 of 2010.
The husband’s application for security for costs in respect of three appeals, NA 21 of 2010, NA 29 of 2010 and NA 81 of 2010 was also heard as part of these proceedings.
In order to understand the context in which these applications are made it is necessary to have an appreciation of the history of the proceedings.
It can also be observed that these applications highlight the difficulty presented to courts in balancing competing interests when litigants are not legally represented, have an inability to meet costs orders if they do not succeed in their applications and/or appeals, while ensuring citizens have access to the courts.
History
The parties were married and commenced living together in June 1986. They separated on 5 November 2000 and were divorced in February 2003.
They have three children, J born in August 1990, R born in November 1992 and A born June 1994.
On 11 September 2001 final consent orders for parenting and alteration of property interests were made. The long history of litigation largely instituted by the wife in this court began shortly thereafter and continues with these appeals.
The children remained living with their mother in the former matrimonial home after separation. From March 2001 to April 2007 the children lived with their father. In April 2007 they returned to live with their mother after she successfully appealed orders including those in relation to children’s orders. The Full Court on 22 November 2006 ordered a re-hearing. Subsequently orders were made providing that the children live with the mother.
The wife filed an application on 2 January 2002 to “re-open” the property settlement pursuant to s 79A of the Family Law Act1975 (Cth) (“the Act”). This application was dismissed on 11 February 2002 with costs to be paid by the wife.
The wife filed a further application on 21 January 2004, amended on 26 July 2004 seeking that the property orders made by consent in 2001 be set aside. On 11 October 2004 Monteith J summarily dismissed the wife’s application. The wife appealed the decision.
The husband then filed an application pursuant to s 118 of the Act on 23 November 2004 seeking that the wife be restrained from instituting proceedings under the Act with respect to the children and/or the matrimonial property without leave of the court. The husband’s costs of and incidental to the proceedings and his application were also sought.
On 14 February 2005 Monteith J restrained the wife from commencing parenting or property proceedings without leave and ordered that the wife pay the husband’s costs. The wife appealed the decision.
The wife’s appeal of the 11 October 2004 and the 14 February 2005 orders were heard by the Full Court on 1 and 2 November 2005. Orders were made for the filing of further written submissions. On 22 November 2006 judgment was delivered. The appeals were allowed and the matter remitted for re-hearing.
On 12 and 13 June 2007 the remitted hearing was listed before Carter J. The matter was not ready to proceed. The husband filed an application seeking to summarily dismiss the wife’s s 79A application. His application was dismissed.
On 30 July 2008 the wife filed an amended application for final property orders. The application was heard by Watts J over eight days in March and April 2009. Judgment was delivered on 21 January 2010. The wife’s application was dismissed. The husband was ordered to pay $1,230.00 per month by way of periodic child support for R and A from 16 March 2009 until … November 2010 and $1,000.00 per month thereafter until A completed his secondary education. The husband was also ordered to pay school fees and incidental charges relating to the children’s schooling. The husband’s application pursuant to s 118 of the Act was dismissed.
The wife filed a notice of appeal on 18 February 2010 appealing the final orders made by Watts J (NA 21 of 2010). We will refer to that order and the reasons as the substantive judgment.
On 2 March 2010 the wife filed an application in an appeal seeking leave to appeal out of time interlocutory orders made by Watts J on 21 January 2010 (NA 29 of 2010). Those orders provided:
1.Leave be granted to the wife to tender a letter written to the Manager [T Super] dated 17 March 2009 and a letter received by the wife from [T Super] dated 14 April 2009 and those documents will be marked Exhibit QQQ.
2.Otherwise the wife’s application filed on 14 July 2009 is dismissed.
His Honour said in paragraph one of the reasons for judgment:
This is an application filed by the wife on 14 July 2009 to adduce further evidence in relation to a hearing that was finalised before me on 16 April 2009 where judgment had been reserved. That hearing related primarily to an application for final orders filed by the wife on 30 July 2008, in which she sought pursuant to s 79A Family Law Act 1975 (Cth), that consent property orders dated 11 September 2001 be set aside and new orders be made in their place.
As can be seen these 21 January 2010 interlocutory orders were made prior to his Honour delivering the substantive orders and were related to that trial.
On 14 May 2010 May J granted the wife an extension of time within which to file her notice of appeal. The wife subsequently filed her notice of appeal in NA 29 of 2010 on the same day.
On 17 June 2010 Watts J ordered the wife to pay the husband’s costs arising out of the wife’s amended application for final property orders filed 30 July 2008 and the husband’s application for costs. His Honour fixed costs in the sum of $7,800 to be paid by the wife in weekly instalments of $50.
On 15 July 2010 the wife filed a notice of appeal against the orders of Watts J of 17 June 2010 (NA 81 of 2010).
On 24 August 2010 the wife filed an application in an appeal seeking an extension of time to file the appeal books in relation to NA 21 of 2010.
On 30 September 2010 the husband filed an application in an appeal in respect of NA 21 of 2010 and NA 29 of 2010, seeking security for costs in the sum of $27,000, and that until such time as the money is deposited in the husband’s solicitor’s trust account that the wife be restrained from proceeding with her appeals. Costs of and incidental to the husband’s applications are also sought.
On 17 November 2010 Watts J made orders dismissing the wife’s application relating to the children’s expenses at school. The application which was filed on 7 July 2010 asked:
1.I seek that [the husband] be ordered to pay the amount of $845.96 as a direct credit to my Bank of Queensland account immediately.
2.I seek that the wording of Paragraph 3 of the Order of Justice Watts dated 21st January 2010 be changed to incorporate any incidentals required by the [G] School.
3. I seek that an order be made that the school book list is forwarded direct to [the husband] and arranged for collection by [the husband] by the first week of January each year.
4.I seek that Paragraph 3 of the Order of Justice Watts dated 21st January 2010 regarding the payment of incidentals requested by the [G] School be backdated to 2008 instead of only backdated to 2009. The reason for this order is that I have receipts for approximately $1200.00 from incidentals purchased in the 2008 year.
Judgment in respect of the husband’s application for costs was reserved.
The wife filed an application in an appeal on 12 May 2011 seeking an extension of time within which to appeal the orders of Watts J made 17 November 2010 (NA 40 of 2011).
On same day the wife also filed an application in an appeal seeking an extension of time within which to appeal against the orders of Watts J made 22 December 2010 (NA 41 of 2011).
On 2 December 2010 the wife filed an application in an appeal in NA 21 of 2010, NA 29 of 2010 and NA 81 of 2010 seeking an order that the court purchase the transcripts of the proceedings in each of those appeals.
In essence, it can be seen that the orders from which the wife wishes to appeal are as follows:
·NA 21 of 2010- the appeal from the substantive judgment;
·NA 29 of 2010- the appeal from interlocutory orders allied to the substantive judgment;
·NA 81 of 2010- the appeal from the costs order relating to the substantive judgment;
·NA 40 of 2011- the appeal from the dismissal of the wife’s application relating to the schooling incidentals; and
·NA 41 of 2011- the appeal from the costs order made as a consequence of the dismissal of the wife’s application relating to the schooling incidentals.
Application for an extension of time
It is appropriate to first consider the wife’s applications for leave to appeal out of time.
On 12 May 2011 the wife filed two applications in an appeal seeking leave to appeal out of time.
The first application, NA 40 of 2011, concern the orders made by Watts J on 17 November 2010 where his Honour dismissed the wife’s application in a case filed 8 October 2010 (see paragraph 23 of these reasons).
The second, NA 41 of 2011, seeks to appeal the costs order made by Watts J on 22 December 2010 for the wife’s dismissed application in a case. The wife was ordered to pay the husband 100 weekly payments of $10 each week.
It is appropriate in the circumstances to address both applications together.
Relevant law
The principles emerging from Gallo v Dawson (1990) 93 ALR 479 and subsequent authorities may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Reason for the delay
In the affidavit accompanying the application in NA 40 of 2011, the wife explains that she sent her notice of appeal to the Registry by facsimile and express post on 16 December 2010. It is said that she believed “that it was the correct date and within the 28 days allowed to file the Notice”.
On 22 December 2010 the wife was contacted by the Appeals Registrar and informed that the notice of appeal was one day out of time and consequently she would need to apply for leave to appeal.
In explaining the delay the wife states that the reasons for judgment were not received until 31 December 2010 and that consequently formulating grounds of appeal was difficult and contributed to the delay in filing the notice of appeal.
In the affidavit accompanying the other application for leave to appeal in NA 41 of 2011, the wife does not explain the reason for the delay in seeking to file the notice of appeal. Rather she simply states that the 22 December 2010 orders were received attached to the judgment on 31 December 2010. It can be inferred that the wife relies on the same argument for explaining the delay in NA 40 of 2011.
The reason for the delay in filing the notice of appeal in NA 40 of 2011, and consequently in NA 41 of 2011, in our view is satisfactorily explained.
Prejudice
Given the notice of appeal in NA 40 of 2011 was one day out of time, the possible prejudice the delay may have caused to the husband is minimal. The delay in filing the notice of appeal in NA 41 of 2011 is more significant.
The wife communicated with the solicitors for the husband and she explains that she was advised by them that no objection would be taken to the filing of the notice of appeal should the court grant leave.
The solicitor for the husband during oral submissions in the hearing of these applications said that both the appeals in which the wife seeks an extension of time should be subject to the same security for costs application as the appeals currently filed if leave is granted. It was not otherwise asked that leave be refused.
Merits of the appeal
In the proposed notices of appeal there are ten grounds of appeal. The wife asserts the same grounds of appeal in respect of both NA 40 of 2011 and NA 41 of 2011.
In summary the grounds allege that the trial judge made various errors of fact. It is said that his Honour erred in his definition of “incidentals” relating to schooling expenses, in considering the process and procedures of the G School in purchasing the required books and stationery, and in considering the financial situation of both the wife and the husband. It is also said that the trial judge failed to accept that the husband pays child support at an incorrectly calculated rate and that the 21 January 2010 orders have resulted in financial hardship to both the wife and the children.
Should the appeal be successful the wife seeks that the 17 November 2010 and 22 December 2010 orders be set aside, that there be no order as to costs, that the husband pay the wife’s costs of and incidental to the appeal, that the husband pay “the incidentals” of the G School from 2008 and that all future requests for incidentals by the G School be directly forwarded to the husband.
The solicitor for the husband referred to the difficulties the wife will face in appealing a discretionary costs judgment. He submitted that given the substance of the order appealed from in relation to incidental school expenses and the wife’s broad interpretation of the order, it is unlikely the appeal could be successful.
Without considering the merits of the appeal any more than is necessary, it can be said that although the merits of the appeal appear limited and a successful appeal doubtful, the delay has been explained and there is little prejudice to the husband other than the costs occasioned by the appeals.
Conclusion
The impact on the husband of allowing leave can be limited by a direction we intend to make so that the appeals will be heard together.
Further, as will later be explained, the appeals will not be heard unless and until the wife pays security for costs.
Application for security costs
In respect of NA 21 of 2010, NA 29 of 2010 and NA 81 of 2010 the husband has filed applications in an appeal seeking, inter alia:
….
2.That [the wife], provide by way of security for the [husband’s] costs of her appeal, the sum of $27,000 to be deposited by way of cleared funds to the trust account of Wilson Ryan Grose lawyers, pending the completion of the [wife’s] appeal.
3.That until such time as the [wife] deposits the said amount, the [wife] be restrained from proceedings further with her appeal[s].
The husband also seeks his costs of and incidental to his applications for security for costs.
As explained previously the husband also asks that NA 40 of 2011 and NA 41 of 2011 be subject to a security for costs order should leave be granted. In oral submissions it was said that the amount payable as security should be increased to $35,000 to provide for the husband’s costs of the additional two appeals.
The wife opposes the husband’s applications for security for costs.
Relevant law
A decision to order security for costs and the quantum ordered to be paid is an entirely discretionary matter, as are all decisions in relation to costs.
Section 117(1) of the Act is relevant in considering an application for security for costs. Namely, subject to s 117(2) and the considerations prescribed in s 117(2A) each party should bear their own costs.
Part 19.3 of the Family Law Rules 2004 (Cth) (“the Rules”) concern security for costs. Rule 19.05(2) provides:
Application for security for costs
…
(2) In deciding whether to make an order, the court may consider any of the following matters:
(a) the applicant’s financial means;
(b) the prospects of success or merits of the application;
(c) the genuineness of the application;
(d) whether the applicant’s lack of financial means was caused by the respondent’s conduct;
(e) whether an order for security for costs would be oppressive or would stifle the case;
(f) whether the case involves a matter of public importance;
(g) whether a party has an order, in the same or another case (including a case in another court), against the other party for costs that remains unpaid;
(h) whether the applicant ordinarily resides outside Australia;
(i) the likely costs of the case;
(j) whether the applicant is a corporation;
(k) whether a party is receiving legal aid.
...
In a not dissimilar matter, in relation to the factual background, Luadaka & Luadaka (1998) FLC 92-830, the Full Court (Ellis, Finn & O’Ryan JJ) at 85,507 said:
61.In our opinion, when dealing with an application for security for costs the general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s 117(2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. The decision to order security for costs is discretionary, both as to whether to order security, and as to the amount to be secured.
62. The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. In considering whether or not to make an order, apart from those referred to in s.117(2A), matters which may be relevant include the following:
62.1It may be relevant to take into account the means of an applicant to satisfy an order for costs if he or she is unsuccessful. Ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should be no bar to justice. This is reinforced by s.117(1). However, the financial circumstances of the applicant do not prevent an order being made if there are other grounds which justify an order. Financial weakness may be relevant, for example, if the applicant is a company. In relation to the means of the respondent, who is the applicant for security, it was held by Goldstein J in Alexander and Alexander (supra) and Gee J in B and B (supra) that the question is whether or not the respondent is able to pay his or her costs. Section 117(2A)(a) requires consideration of the financial circumstances of both parties. However, we do not accept that it will only be in cases where the applicant for security does not have the means to meet his or her costs that an order would be made. In appropriate circumstances an order may be made even if the applicant for security has the means to pay his or her costs.
62.2 The prospects of success is a relevant matter to take into consideration: Parkinson & Co Ltd v Triplan Pty Ltd (supra). However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant’s success unless it can be demonstrated that there is a high probability of success or failure: Porzelack KG v Porzelack (UK) Ltd [1987] 1 WLR 420; Appleglen Pty Ltd v Mainzeal Corporation Pty Ltd (1988) 79 ALR 634; Equity Access Ltd v Westpac Banking Corporation (1989) ATPR ¶40-972. This is because of the lack of material at the time the application is dealt with. However, such an assessment may be possible in circumstances where, as in this case, affidavits have been filed in which the case sought to be made out is set out.
62.3 It is a relevant consideration whether the applicant’s claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham: Parkinson & Co Ltd v Triplan Pty Ltd (supra); Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133; J & M O'Brien Enterprises Pty Ltd v Shell Company of Australia Ltd (1983) 7 ACLR 790.
62.4 It may be relevant to consider whether or not an order for costs would be oppressive or stifle the litigation. In Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 Byrne J said at 306:
“A factor in deciding whether security should be required is that the order may well mean that the action cannot proceed. That prospect does not require refusal of the application but it is often a significant matter.”
See also Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 and Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 5 ACLC 480 .
62.5 It may be relevant to consider whether or not the litigation may involve a matter of public importance: Equity Access Ltd v Westpac Banking Corporation (supra); Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248. In Quick on Costs at [4.9440] it is said that this will militate against the making of an order.
62.6 It may be relevant to consider whether or not there has been delay in bringing the application. An application may be refused if there is delay in making the application and prejudice is caused to the respondent to the application: Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 and Loreva Pty Ltd v Cefa Associated Agencies Pty Ltd (1982) 7 ACLR 164.
62.7Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.
In Luadaka the Full Court was dealing with an appeal by the wife from a single judge decision ordering security for costs of her s 79A proceedings. The wife said she had no money, the trial judge found her prospects of success were limited to a possible question of how the superannuation had been considered in the first instance. The Full Court dismissed the appeal from the order that the wife pay security.
A particular feature of this case is the wife’s poor financial circumstances. It is contended by her that she would be unable to pay any amount by way of security.
Jones and Jones (2001) FLC 93-080 the Full Court (Ellis, Kay & Mullane JJ) distinguished the principles to be applied when determining an application for security for costs at first instance from those to be applied on appeal. It was said at 88,377:
21.It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 Ch D 34 at 38, J & M O’Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Ltd (unreported, Federal Court of Australia, 1 July 1993).
22.The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.
23.If an appeal appears to have little merit, a court may be more disposed to make an order for security for costs. Whilst we have not had the benefit of submissions on behalf of the wife, the appeal does not appear to raise matters of principle.
Jones was an application to the Full Court that the wife pay $5000 by way of security. There was a long history of litigation. The subject of the appeal was spouse maintenance and costs orders. At the time of the hearing the wife was indebted to the husband for $22,695.87 by way of taxed costs which the wife claimed she was unable to pay. The husband said he had no assets, only debts including $82,244.45 to his solicitors. The wife said she had no assets and was largely dependent on the pension. It can be seen that the circumstances of the matter now before us is not unusual.
The court has on a number of occasions made similar orders. In Ansilda & Hartford [2009] FamCAFC 128 the Full Court (May, O’Ryan & Stevenson JJ) ordered the wife pay the sum of $15,000 as security for costs of her appeal and if not then the appeal be dismissed. The wife had filed an appeal against final parenting orders. After dealing in considerable detail with the reasons for judgment of the trial judge and the affidavits before the Full Court, reference was made to the mother’s financial circumstances. This included that her former husband was assisting her with the moneys to appeal, that the mother’s income comprised of maintenance, child support and social security, that she had property interests in total of $21,263, but liabilities in excess of $200,000, and of that the bulk was owed to her former husband.
The Full Court discussed at length the previous authorities in relation to security for costs including making reference to Luadaka. It was observed that a number of considerations described by the Full Court in Luadaka have now been set out in Rule 19.05(2) to which we have already referred.
Ansilda & Hartford also raised the consideration of the significance of the fact the litigant was impecunious in the context of an application for security of costs in an appeal. Reference was made to Adult Guardian and Mother’s Parents v B and Child’s Representative (2002) FLC 93-116:
71.It is of course a matter of serious concern that an impecunious appellant may be prevented by the making of an order for the provision of security for the costs of the appeal, from pursuing his or her rights of appeal. However, that concern must be balanced against an equally serious concern for the position of a respondent to the appeal who, in the event that the appeal should fail, and because of the impecuniosity of the appellant, will be left to bear the burden of his or her own costs of successfully resisting the appeal.
72.In these circumstances, the difficult issue of the merits (or otherwise) of the appeal must assume particular significance. As Toohey J observed in Webster and Another v Lampard (1993) 112 ALR 174 at 175:
Where there is an appeal as of right … it is more appropriate to consider the merits of the appeal where security for costs is sought. An appeal may appear to have little merit, in which case a court will be more disposed to order security.
Reference was also made to JRS & KM (2005) FLC 93-223 where the mother’s application for security for costs notwithstanding the finding that the father’s appeal had little success and that he would be unable to satisfy an order for security for costs was dismissed. The Full Court said in that case at 79-688 that:
22.… Nevertheless, the right of access to the Court is an important right and any attempt to restrict that right requires careful scrutiny.
23.Notwithstanding the matters which we have identified as supporting making an order for security for costs, we are not persuaded that such outcome would be justified in all the circumstances. On the evidence before us, we are concerned that the making of such order could preclude the father from pursuing his appeal against orders which, inter alia, deprived him of face to face contact with his child, and also restricts his future access to this Court. Not without considerable reservations we thus decline to grant the mother’s application.
In Ansilda & Hartford reference was also made to cases in other courts including as follows:
34.We observe that in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628 Madgwick J in dealing with an application under s 56 of the Federal Court of Australia Act 1976 (Cth) which provides for security for costs on appeal said:
[5] There has long been a rule of practice and justice that poverty is no bar to a litigant. However, the view is taken that there was an exception to this salutary rule in the case of appeals on the basis that the appellant had already had the benefit of a decision of a court. Thus, an insolvent party unsuccessful at the first instance, but seeking to appeal, had not been shut out from the courts on account impecuniosity but, as Ballam LJ put it in Cowell v Taylor (1885) 31 ChD 34 at 38, would be “…only prevented, if he cannot find security, from dragging his opponent from one Court to another”.
[6] The correct, modern approach, I think, was set out in Australian Solar Mesh Sales Pty Ltd v Anderson (1999) 48 IPR 15 at [11] by Sackville J. That is, that the impecuniosity of the appellant enlivens the power of the Court to make an order for security for costs pursuant to s 56 of the Act, but it remains necessary to consider whether, as a matter of discretion, the Court should make an order in favour of the respondents.
35.This case does raise for consideration the balancing exercise of requiring a respondent to defend proceedings against an impecunious applicant where there is little likelihood of any costs order being satisfied with on the other hand the undesirability of impecuniosity in itself denying a right to bring proceedings. Aside from the other matters which the court is required to take into account in that situation, particular importance attaches to an assessment of the likelihood of success and the terms of s 117(1) that, subject to certain matters, each party to proceedings under the Family Law Act shall bear his or her own costs.
As mentioned, the merits of the appeal were considered in some detail Ansilda & Hartford, ultimately their Honours found:
55.We have read the reasons of Brown J and they are very detailed and comprehensive. As well, her Honour dealt with all relevant statutory considerations. With the exception of the second area of complaint which we have identified above, we have some difficulty understanding the precise appealable errors contended for in the grounds of appeal. For example we are of the view that ground one is not a ground of appeal. In the result we are of the view that the appeal does not have strong prospects of success. However notwithstanding our concerns, in a broad way, we understand some complaints by the Mother and thus we cannot in this brief examination conclude that the grounds of appeal are entirely hopeless. We therefore propose to proceed on the basis that there may be some arguable grounds in the appeal.
We are also of the view that the appeals in this case do not have a strong prospect of success.
In this case as in Ansilda & Hartford there are unpaid costs orders. The Full Court found that fact as particularly relevant, a matter which is referred to in 19.05(2)(g) in the Rules.
There is always more than one party to litigation. It is clear from the authorities to which we have referred that on occasion, the interests of a party seeking to defend an appeal of doubtful merit must be afforded some protection by the court.
Submissions of the husband
It is said in the husband’s affidavit filed in support of the application for security in respect of NA 29 of 2010 on 9 August 2010 that:
6.Although I understand the reasons for judgement, I was disappointed with the relatively low amount of costs which were ordered in my favour, given the substantial financial burden that these proceedings have been for me over many years.
7.I wanted to speak to my lawyer about an application that my costs be secured if this was possible, for [the wife’s] appeal. …
8.I understand that it will be many months before [the wife’s] appeal is likely to be heard. I am very concerned about my ability to support myself and pay child support as has been ordered, with the ongoing legal costs I will incur.
The husband further explains:
24.I filed an Application in a Case on 18 February 2010 seeking that [the wife] pay my costs arising out of the proceedings related to her application filed 30 July 2008 and which were the subject of the 21 January 2010 orders.
25.By the order dated 17 June 2010 [the wife] was ordered to pay my costs by way of 156 payments of $50 per week for a total of 3 years. This equals a total costs order of $7,800.
26.In paragraphs 56 of the 17 June 2010 order, Justice Watts states that ‘…a just order would be for the wife to pay the full $55,000…’ Justice Watts, however, found that [the wife] would not have the capacity to meet a costs order of that amount.
27.On 22 June 2010 my lawyers wrote to [the wife] seeking that [the wife] commence the weekly payments of $50 to me on 24 June 2010, 1 week after the date of the order… I am yet to receive any payment from [the wife].
We understand that the wife has made no attempt to pay the costs.
The husband also explains that he has not entered into a costs agreement with his solicitor given the substantial costs that he has “paid in this litigation over the last nine years”. The husband is billed at a reduced rate by his solicitor and also by senior counsel who has previously represented him. Senior counsel has since retired from the Bar and it is said that it is not anticipated nor expected that other senior counsel could be retained at the same rate.
The husband details numerous costs from the most recent proceedings, most of which remain outstanding to his solicitors.
Under the section characterised as “Rule 19.05(2) matters” it is said:
37.My solicitors have advised of the matters set out in Rule 19.05(2) … I say as follows:
(a)I have set out my financial means in my financial statement filed with this application.
(b)From my reading of the reasons for judgment the findings of Justice Watts are clear and unequivocal.
(c)I am very concerned about my current precarious financial position which is ostensibly a result of a decade of litigation initiated by [the wife]. I have had my home in … Townville on the market for some time. I plan to use the sale proceeds to pay the existing debts I owe to my legal representatives. I do not expect that the amount I could receive by way of net proceeds would cover these existing debts, the fees I will incur as a result of [the wife’s] appeal and the debt I still owe to my parents.
(d)[The wife] and I separated in 2000 and we entered into consent orders in 2001. Since that time [the wife] has consistently initiated litigation based on false allegations in an attempt to obtain a greater property settlement. The result of the consent orders of 11 September 2001 was that our 3 children lived with me. As part of those orders I received $15,000 from the sale of the former matrimonial home. This was by way of child support for the following 2 years at a rate of $150 per week ($50 per child). The boys lived with me full-time for nearly 6 years without any other financial support from [the wife]. Since the children returned to live with [the wife] I have consistently paid child support, their school fees, their private medical insurance and a multitude of other incidental expenses.
(e)[The wife] is not legally represented and so is not spending money pursuing her appeal. The evidence at the trial in 2009 showed that apart from [the wife] refusing a greater amount of work at the [Hotel] because of Centrelink issues, there was no restriction on her ability to work there. The evidence at the trial in 2009 also showed that [the wife] continued to gamble regularly at the Townsville Casino.
(f)I am not of the view that this matter involves a matter of public importance.
(g)By the order of the Family Court dated 17 June 2010, [the wife] was directed to pay me $50 per week for 3 years. My lawyers have formally requested that [the wife] commence making these payments. I have not yet received any payments from [the wife]. I do not believe that [the wife] would have the capacity to meet a large costs order in my favour in the event that she was unsuccessful in her appeal.
(h)I am ordinarily resident in Australia. I have never lived outside Australia.
(i)My solicitor has advised me that the likely costs of responding to [the wife’s] appeal are not less than $29,000. My solicitor’s estimate (and I accept that it is only an estimate) of those costs are as follows:
· Taking my instructions with respect to [the wife’s] application, for necessary response: $2,000 - $3,000.
· Review of transcript of 7 hearing days to consider [the wife’s] appeal points, not less than 25 hours on scale fee: $4,000 - $4,825.
· Preparation of brief to counsel:
- solicitor 3 hours: $479;
- clerk including copying 3 hours: $375.
· Counsel’s fee for preparation for appeal hearing (taking into account 7 days trial) 2 days: $7,500.
· Counsel for conferences: $1,000.
· Solicitor for conferences: $1,000.
· Preparation and reviews of appeal case outline, solicitor and counsel: $2,000.
· Counsel’s fee for appeal hearing: $3,500.
· Solicitor’s fee, day of appeal hearing: $1,600.
· Solicitor’s airfare and accommodation: $1,000.
The above costs do not include GST or any other out of pocket expenses including Brisbane agent’s fees.
This is separate to the amount that I already owe my lawyers for the proceedings thus far which as yet I have been unable to repay.
(j)I am not a corporation.
(k)I was not in receipt of legal aid for these proceedings. I have never received legal aid.
The husband relies on the contents of the affidavit filed 9 August 2010 in support of his application for security for costs in NA 29 of 2010, NA 21 of 2010 and NA 81 of 2010.
In the written submissions prepared on behalf of the husband the s 117(2A) factors are addressed. The oral submissions of the husband’s solicitor added to these submissions. In particular, reference was made to parts of the substantive judgment about several matters including the trial judges findings about:
· the wife’s credit and her gambling (paragraphs 46, 47, 48 and 51); and
· the wife’s ability to earn income and her choice to limit her income (paragraphs 309 to 312).
It is said that although the husband is overall in a superior financial position to the wife, his position is compromised due to his support of the children and ongoing legal expenses. It is submitted that the wife “has a capacity to increase her financial position through work which she simply refuses to meet”. This submission is consistent with a finding made by the trial judge.
The solicitor for the husband explains that the parties have been litigating for ten years as a result of the wife’s “obsession with litigation”. The wife’s conduct is said to have had “a significant financial and emotional impact” on the husband.
In the written submissions filed on behalf of the husband it was said:
The basis of this litigation is to set aside final property orders made by consent in 2001. The [wife] has made a number of claims as to her consent in 2001 not being true consent. All of these claims were thoroughly considered and were rejected, by the trial judge. The [wife] simply refuses to accept this determination.
The two costs orders made against the wife require her to pay the husband $60 per week. The wife has not paid nor attempted to pay the husband any of the modest amount as ordered by Watts J. The wife has only appealed one of the costs orders made against her and has not sought a stay of the orders.
Consequently, the husband submits that:
The Court can have no confidence that the [wife] will comply with any potential costs order from the appeal when she has not compiled to date with costs orders tailored specifically to her stated financial circumstances. Further, the [wife] has no real property or other similar asset against which any enforcement of a costs order following the appeal, could be brought.
Further, should the appeals be unsuccessful the husband could not otherwise be compensated for the wife’s unmeritorious appeals. By her own concession the wife is impecunious and says she faces bankruptcy.
It is asked that the court take into account that the wife was wholly unsuccessful in her application for property settlement before Watts J. It is said:
His Honour found the appellant had been either untruthful as to the events of 11 September 2001 when the consent orders were signed or had “so reconstructed what had happened that her memory of those events was totally unreliable”. His Honour stated that he preferred the evidence of the [husband] and his witnesses to those of the [wife] where they were in conflict. (footnotes omitted).
As to the prospects of success or merits of the appeal the husband submits that the wife’s prospects are poor. It is explained that the wife’s grounds of appeal “are not clearly set out or particularised and many of them do not form proper grounds of appeal”, with many of the grounds seeking that the court re-exercise their discretion.
The solicitor for the husband explains that what the wife is seeking in her application is greater than the property pool available for distribution. The husband’s sole asset is his superannuation. The solicitor submits that it would be unfair for the husband to have to make a capital payment to the wife, given the wife received all the proceeds from the sale of the former matrimonial home with the exception of $15,000 which the husband received for child maintenance. At the time of the sale all three children were living with the husband.
This it is submitted is not a matter where it can properly be claimed that the trial judge failed to consider matters raised by the wife, nor is it a case where no adequate reasons were provided. It is submitted:
… Watts J has now delivered four Reasons for Judgment relating to this litigation, three of which are the subject of appeal. The first two Reasons for Judgment were delivered on 21 January 2010 and they comprise 74 pages and 19 pages. The third Reasons for Judgment delivered on 17 June 2010 (relating to the costs order for the trial) is 9 pages.
It is also submitted that the wife is unable to properly agitate a complaint that the trial judge failed to discharge his duty to her as a litigant in person. The husband submits that his Honour “conducted the trial carefully and with due regard to the [wife’s] position” and “took considerable time and care addressing the [wife] during her case”.
Further it is said that no suggestions could properly be made that the trial judge was biased against the wife. The wife, despite there being opportunity, did not make a complaint to the trial judge of bias during the hearing.
The husband submits that he is not the cause of the wife’s financial problems. Rather, it can correctly be said that the evidence in the trial revealed that the wife’s financial situation is related to her gambling and her refusal to work longer hours.
The husband acknowledges that a security for costs order, together with a stay until such security is provided “may well create difficulties for the [wife] to continue her appeal at this time”. He submits:
… that the Court is required to do justice to both parties, not just to the [wife]. The Court must weigh up the injustice which might be caused to the [husband] in successfully defending the appeal without any prospect of being paid any costs awarded, against the right of the [wife] to continue the appeal.
Submissions of the wife
The wife opposes the husband’s application for security for costs. We received very lengthy written submissions from the wife together with an affidavit. The wife regards the husband’s application as “a frivolous and vexatious application to the Court”, as both the husband and the husband’s solicitor are said to be aware that the wife’s position is that she is impecunious.
The wife explains that should the husband’s application be successful and should the five appeals not be heard without security then she will have “no option but to file for Bankruptcy”.
The wife states in her written submissions:
… [the husband] is well aware of my financial situation as it is the direct fault of [the husband] and his constant games and ongoing litigation in the Family Court that has put me in this position. It is also the result of the incompetence of the Legal Representatives involved on the 11th September 2001 who allowed the Consent Orders to be signed and sealed by the Court without reading them, disallowing me to read them and allowing Mrs Pack, Counsel for [the husband] to write whatever her client wanted in the Orders and then allowing Mr [F] who represented me to put me under extreme duress until I signed them. There has been shown gross negligence by the Separate Representative and Counsel for the children who has been categorical in telling the Court that they never spoke to me until 6pm on the 11th of September 2001 after the Orders had been sealed by Justice Monteith to explain what was in the Orders.
The allegations made in this paragraph were those made in the trial before Watts J. His Honour carefully considered those serious matters and rejected the wife’s evidence in a lengthy and reasoned judgment.
For the wife the husband’s security for costs application “is a deliberate attempt to delay the five Appeals being heard”. She explains “[t]he reason for the attempted delay is obvious relating directly to the residency of the children and the fact that two children have moved to Brisbane to study and work leaving only [A] at home”.
At paragraph 20 of her written submissions the wife states:
In the five Appeals filed in the Full Court I have provided sound grounds for each. I have not attempted to bring these Appeals to the Full Court as to waste time or as a vexatious application but have brought these Appeals due to the serious error of fact and in some cases law that is obvious in the judgements. I believe that as well as this error there is a gross perception of actual or perceived bias against me as a Litigant in Person. As well as the previous Appeals in this matter … I have shown that the current Appeals have merit and need to be heard without any Security of Costs.
The wife explains:
23.If [the husband’s] Security for Costs application is allowed it will be of far greater prejudice to myself and the children than to [the husband] if he does not secure the costs. [The husband] has insisted on the sale of the family home for less than half the value, created legal debts to more than half a million dollars, created legal debts and further expenses to at least $100,000.00 which I have had to continue to pay for and insisted that I withdraw my full superannuation from the Commonwealth Public Service Scheme and give it to him to pay off the mortgage on our home. All of the above mentioned have been ignored in the nine day hearing before Watts J and dismissed in his Judgement.
24.It is in the interest of justice that the five Appeals before the Full Court are heard. If the Appeals are halted by a Security of Costs Application being allowed then my children and I will suffer a greater travesty of justice then we suffered in 2001 when they were placed in a highly abusive father and I was removed from their lives and made homeless by the error of the Family Court in Townsville.
The wife is of the view that:
The prospects of success are enormous in particular due to the apprehension of bias of the Trial Judge, the limited disclosure by the Respondent, the refusal by the Trial Judge to tender relevant evidence and the refusal to accept supbonea (sic) material that had not been released by the Judge prior to cross examination of the Respondent. Also the error of the Trial Judge to allow a new witness to be called after the Appellant had finalized cross examination of her witness.
The wife submits that the husband should “dismiss his legal team” and represent himself. Alternatively, the wife asks that the husband settle the matter.
In concluding her written submission the wife states:
a.The Appellant has been forced into over ten years of litigation by the Respondent that has seen three Appeals at the Full Court allowed and the Residency Orders relating to three children overturned.
b.The costs, in particular of attaining safety for the children and the effort of regaining our home, superannuation, inheritance etc has now left the [wife] impecunious.
c.The Judgements of Watts J do not mirror the evidence given in the Court at Trial
d.The apprehension of actual or perceived bias throughout the Judgement is paramount and continues throughout the subsequent judgments.
e.The [wife] has sound grounds of appeal and enormous prospects of success.
f.The [wife] is now facing Bankruptcy due to the [husband’s] continual litigation and the errors contained in the Judgements of Watts J. Also due to the Family Court returning three children to my care without adequate, stable income after allowing Consent Orders that removes all of my property and money in 2001.
g.If the Security of Costs Application is allowed then the Appeals will be stifled and a fair and equitable property settlement will never be achieved.
h.The Family Court of Australia has a responsibility to the Commonwealth Government to ensure that the [wife] is able to support herself in her old age. If the appeals are not heard then the [husband] remains in receipt of my Superannuation and Inheritance.
i.The [wife] at no stage accepted the Consent Orders of 11/09/01 which is obvious from the document itself which does not have every page signed or initialled and in fact only the cover sheet is signed.
j.Since the return of the children to my care I now have debt of $22,600.00 with little capacity to repay. This debt is as follows: $9,000.00 costs, $8000.00 due to arrears of unpaid child support and $5600.00 credit card debt.
Conclusion
We are of the view that an order for security for costs should be made in this matter. Acknowledging the difficulty the wife may encounter in amassing such a sum, it is plain that without security the husband has no prospect of recovering his costs should the appeals fail.
To the extent necessary for us to comment, we are also of the view that the appeals have little merit, especially those appeals from interlocutory orders, costs and related to school incidentals. We have considered the reasons of the trial judge in the substantive matters and the other judgments. It is difficult to envisage how the grounds of appeal as presently drafted could reveal error such that would lead to the appeal being allowed.
By reference to Rule 19.05(2) the following matters are considered in concluding that the discretion should be exercised in this case:
· The financial means of the wife reveal that should a costs order be made consequent on the appeals being dismissed it is unlikely that those costs will be paid. The financial means of the husband are also poor.
· The prospects of success of the appeal from the decision of Watts J in relation to the substantive appeal, that is the s 79A application, are poor. We have had regard to the careful and reasoned judgment of his Honour and in particular his findings adverse to the wife. As to the other appeals they are relatively trivial in nature.
· The wife is no doubt genuine in bring these appeals, however the submissions and grounds of appeal as proposed reveal a lack of understanding of the appeal process.
· The wife’s lack of financial means is not a result of the husband’s conduct.
· The question of whether this order will stifle the appeal is of considerable importance. We note that the trial judge found that the wife had the capacity to earn an income. In any event, it is clear from the authorities to which we referred that this factor is not decisive.
· The appeal does not involve a matter of public importance.
· Costs orders have been made that the wife has not paid despite their modest impost.
· The solicitors for the husband have carefully provided information in relation to the likely costs of the appeals.
· Neither party is in receipt of legal aid.
The quantum sought for security was increased to $34,000 should all appeals be heard together. While not wishing to convey that this sum is excessive and accepting that the husband is entitled to be represented by counsel on appeal we are of the view that the sum of $27,000 would make a sufficient contribution to the husband’s costs should such an order be made consequent upon the appeals or the majority of them being dismissed.
Application for transcript
On 2 December 2010 the wife filed an application in an appeal seeking an order that the court obtain, and provide to the parties the transcript of the proceedings for NA 21 of 2010, NA 29 of 2010 and NA 81 of 2010.
Relevant law
In considering the wife’s application to be provided with the transcripts for the appeals, the hearing dates being 16 to 20 March 2009, 14 to 16 April 2009, 12 August 2009 and 30 April 2010 at the expense of the court it is necessary that we refer to the relevant principles and the Rules.
Rule 22.18 of the Rules provides the requirements for the preparation of appeal books:
(1) The appellant or, if so ordered, the cross-appellant is responsible for preparing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
(2) If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare the appeal books:
(a) a respondent;
(b) the Regional Appeal Registrar.
Note If the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).
(3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.
Note 1 The party filing the appeal books must file and serve the number of copies ordered to be filed (see paragraph 22.17 (2) (c)). The number to be filed will include enough copies for each member of the Full Court. In addition, the number required to be served will be 2 copies for each other party.
Note 2 A party may apply for an extension of time (see rule 1.14).
Note 3 If a party fails to comply with the requirements for filing and serving the appeal books, the appeal is taken to be abandoned (see rule 22.21).
Registrar Spink made directions on 1 October 2010 requiring the appeal books to include the full transcripts of the proceedings before the trial judge.
As said by the Full Court (Bryant CJ, Boland and Stevenson JJ) in Forbes & Bream (2008) 222 FLR 96 there is no legislative basis within the Act or the Rules providing that a transcript, or parts thereof, be provided by the Court:
28.From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.
…
35.If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.
36.We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.
Submissions of the wife
In her accompanying affidavit the wife explains that she has made enquires with Auscript and that the cost of the required transcripts is approximately $8000.00. She submits that due to her current financial circumstances she cannot afford to purchase the transcripts.
It is said by her at paragraph 2 of the wife’s affidavit:
It is paramount to the hearing of the above Appeals that these transcripts are available to the Full Court. It is clear that what is in the Judgement of Justice Watts for all of the above listed Appeals does not correlate to what was given in evidence during the hearings.
Further it is said “[t]his is a complex matter and I believe that the transcripts for all of the Appeals need to be available to the Full Court when the matter is heard so that this matter receives a fair hearing”.
In regard to the importance of the transcripts it is said:
…the Transcripts or at least some of the Transcripts will confirm the bias in the Judgements and also totally refute statements made by His Honour regarding the highly professional behaviour of the Legal Representatives on 11 September 2001 when the Consent Orders were signed.
For the wife “[i]t appears that what is written in the Judgment of Justice Watts is certainly not a true encounter of actually what happened in the Court room”.
In her written submissions the wife refers to the decision of the Full Court (Bryant CJ, Finn & Ryan JJ) in Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220 where a non-exhaustive list of factors relevant to a consideration of whether the court should purchase a transcript. It is appropriate to set out portions of the wife’s submissions in this regard to appreciate her argument:
a. Whether the case is a financial or parenting case.
…The [case] is now in its eleventh year on foot in the Family Court along with three Appeal allowed in the Full Court. The [case] could never be seen as anything but an exceptional case.
b.Whether the whole transcript or part thereof is necessary for the determination of the Appeal or part of the appeal.
…the Transcript should be purchased to give a clear indication of exactly what happened at Trial.
c.The likely cost of the relevant transcript and whether the applicant can afford all or part of the costs of the transcript.
…[The Husband] would also be easily able to pay for the incidentals at the [G] School for his youngest child and also pay for the transcripts necessary to progress the Appeals…
I am not currently employed as a direct result of the economic recession when the Hotel … downsized its personnel and has now gone into receivership. I have been unable to find other employment and simply have been preoccupied managing the work load in preparing legal material to file in the Court.
d.The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the pepration (sic) of the appeal book (s).
I have had no choice over the past ten years but to represent myself in the Court. My costs have not been minimal…the time and effort along with ongoing costs of trying to disprove the lies that [the husband] so readily puts in Affidavits or Financial Statements is a costly exercise. Along with these costs are the cost of advice from legal practitioners and the general costs of telephone, internet and travel. Also the emotional and psychological cost of representing myself in a field that I knew and still know very little about has been seriously damaging to my health…
e. The prima facie merits of the appeal.
f.Whether the questions of providing a transcript can be left to the Full Court hearing the Appeal.
g.…the history of the matter.
…The ongoing litigation initiated by [the husband] in 2000 has placed an enormous financial and emotional burden on the [wife] and has had severe detrimental effects in every aspect of our children’s lives. [The husband] along with his Counsel knew on the day that the Consent Orders were signed that they contained lies regarding my superannuation, that he was prepared to sell the former matrimonial home for a valuation price that would not even paid the mortgage and the legal costs that he had merrily accumulated and would seriously jeopardize myself and our children for the rest of our lives. The result that I desire is a fair and equitable property settlement taking into account the contribution of myself and my parents in the total restoration of our home, the contribution of my full inheritance and the return of my superannuation as agreed.
In addressing the fact that the wife has unpaid costs orders against her, she explains that she and the children are unable to live on $300.00 per fortnight, which is said to be the amount remaining after the payment of rent, credit card debts and household bills. She states that she “offered to tender a financial statement to Justice Watts and he refused at the last hearing”.
In concluding her written submissions the wife states “[i]n the interest of justice the transcripts in these proceedings must be purchased” and “[t]o substantiate my claim and argue my case the transcripts of these proceedings are of paramount importance”.
Submissions of the husband
It is submitted that there is nothing exceptional about this case. Rather it is said “the wife’s conduct is exceptional”.
It is submitted that given the wife’s “wide ranging and vague” grounds of appeal it would be necessary for the whole of the transcripts to be available so as to enable the grounds to be properly addressed.
Given the appeals concern property proceedings and it is submitted given the wife’s prospects of success are poor, it is said that the court’s limited resources should not be expended on the purchase of the transcripts and that the cost “places too great a burden on the Court’s budget”.
The husband explains that he is unable to afford to contribute to the costs of the transcript. The husband is employed full time and is not able to represent himself. He states that the wife does have the capacity to earn additional income and therefore an ability to pay for the transcript. Given that the wife continues to be self represented it is said that her costs are minimal.
In the circumstances of this case the solicitor for the husband submits that any decision concerning the purchase of the transcripts should be postponed pending the wife’s payment of security costs. We think that this is an eminently sensible approach.
Conclusion
As an order will be made requiring the wife to provide security it is appropriate to reserve judgment about the wife’s application for the transcript.
It would not be appropriate for the court to incur the substantial cost of the preparation of transcript should the appeal not be heard. For that reason, we will reserve our judgment in this matter until it becomes apparent that the appeals will be heard.
Costs
At the conclusion of the hearing submissions as to costs were heard.
As we have decided that the wife must pay security for costs we do not see that a further order for costs of the hearing of these applications can be justified.
We would make no order as to costs.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Young JJ) delivered on 29 July 2011.
Associate:
Date: 29 July 2011
3
18
2