Estella and Morena (No 2)
[2014] FamCAFC 133
FAMILY COURT OF AUSTRALIA
| ESTELLA & MORENA (NO. 2) | [2014] FamCAFC 133 |
| FAMILY LAW – APPLICATION IN AN APPEAL - Application to file a notice of appeal out of time – Where leave was granted to file a notice of discontinuance at the commencement of the hearing – Application dismissed. FAMILY LAW – COSTS - Where the respondent made application for costs – Where the respondent had only been informed that the applicant was not pursuing the application the day before the hearing – Where the proposed appeal had no merits and the application would not have been granted – Where the respondent is in receipt of a grant of legal aid – Where the public purse has been put to expense in responding to the application – Application allowed. |
| Family Law Act 1975 (Cth) |
| Clivery & Conway [2007] FamCA 1435 |
| APPLICANT: | Mr Estella |
| RESPONDENT: | Ms Morena |
| FILE NUMBER: | BRC | 10237 | of | 2007 |
| APPEAL NUMBER: | NA | 9 | of | 2014 |
| DATE DELIVERED: | 23 July 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 23 July 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 December 2013 |
| LOWER COURT MNC: | [2013] FamCA 1045 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Ms Smith as town agent for Hannays Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Ms Fairbrother of Legal Aid Queensland |
Orders
The applicant is granted leave to file a notice of discontinuance.
The application in an appeal filed on 28 February 2014 is dismissed.
The applicant to pay the costs of the respondent, including the reserved costs of 23 April 2014, to be fixed in the sum of $2,593.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Estella & Morena has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 9 of 2014
File Number: BRC 10237 of 2007
| Mr Estella |
Appellant
And
| Ms Morena |
Respondent
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
In an application filed 28 February 2014 Mr Estella (“the father”) asked for an extension of time to file a notice of appeal from orders made by Bell J on 11 December 2013. The father was self-represented at this time. His application was opposed by the mother and the Independent Children’s Lawyer.
On 23 April 2014 a solicitor appeared for the father and asked for an adjournment of the application so that the father could apply for a grant of legal aid. The application was adjourned and costs of the respondent and Independent Children’s Lawyer were reserved.
On or about 30 May 2014 the grant of legal aid was not approved. Today, the father has indicated that he wishes to withdraw the application and a notice of discontinuance of today’s date was filed by leave.
The only matter for my determination is the question of costs. There is no appearance for the Independent Children’s Lawyer, but the solicitor for the mother, who is employed by Legal Aid Queensland, has made an application for costs.
A decision about costs should include some assessment of the merits of the original application.
I have written submissions on behalf of the respondent together with an affidavit from the solicitor in relation to the application for an extension of time.
As will be seen, the most significant impediment to the application succeeding would have been the merits of the appeal. The draft notice of appeal contains 11 grounds of appeal none of which could be described as providing a coherent reason for the appeal.
In essence the father complained that the orders in relation to the children, N, born March 2000, E, born April 2001 and M, born January 2006 are:
·Distressing for the children because the effect of the orders are that they are separated – N being with the father and E and M being with the mother;
·The arrangements for handover are unworkable for both parents; and
·The orders reveal an error, because the father should, he asserted, have equal parental responsibility for E and M.
It appears from the reasons of Bell J, the trial judge that, based on expert evidence, the mother agreed that the children should be separated, the child N to live with the father but that the other children should live with the mother.
In his affidavit filed in support of the application, the father complained that on 9 December 2013 his six applications for contravention were dismissed. This is not the order from which the father now appeals although it is noted that those orders were made on the first day of the hearing. There are no reasons given in the judgment of 11 December 2013 for the dismissal of the contravention applications.
The excuse given for failing to file the appeal within time is that a legal aid solicitor who the father expected to see was on holidays. It is also said by the father that he did not receive a copy of the reasons and orders until 25 January 2014. If the position were as simple as this, the father would have been out of time to appeal when he received the orders and reasons. Such a situation may be a valid excuse for the delay in filing the notice of appeal.
It was said by the father that there is merit in the appeal because the orders are unworkable. The affidavit otherwise raises the same issues and allegations against the mother as were dealt with by the trial judge.
From the outset the mother asked that the application be dismissed. It is explained by a solicitor employed at Legal Aid Queensland that the father was present in court on 11 December 2013 when the judgment was delivered and the orders made.
In her affidavit, the solicitor explains that her office received a copy of the sealed orders from the court by email on 13 December 2013. A copy of the judgment was received on 15 December 2013. I am asked to infer that the father received the documents on about the same date.
It is submitted that the reasons for the delay are not adequately explained.
Understandably there also was a criticism of the grounds of appeal. First, that they appear to include a complaint about the dismissal of the contravention applications not the subject of the proposed appeal. Secondly, that the grounds do not disclose any merit and that no errors fall within the well-known principles of House v The King (1936) 55 CLR 499.
I also refer the well-known principles in relation to applications for leave contained in Gallo v Dawson (1990) 93 ALR 479.
conclusion
It can be said that there was some explanation for the delay. It should however be observed that as the father was present on the day the reasons were delivered and the orders made it could hardly be said that he was not aware of them. There is no real explanation as to why he was unable to file a notice of appeal within time. It is not contended by him that he was unaware of the time limitations.
It may be correct that the father was unable to obtain legal advice over the Christmas break although it should be observed that many litigants in this court file notices of appeal without legal advice. A further opportunity was given to the father to obtain legal aid, in which he was unsuccessful. While appreciating that the father was initially a litigant in person and that English is not his first language the real difficulty is the lack of apparent merit in the appeal. Leave would not have been granted to file the notice of appeal out of time. Quite properly, a notice of discontinuance has now been filed by leave.
It may now be seen that the application was without merit, which is a particular consideration I must now turn to in the respondent’s application for costs. The provisions of s 117 of the Family Law Act 1975 (Cth) provide that the court may make an order for costs if there are circumstances that justify it.
In this case, the mother is in receipt of a grant of legal aid. I understand that the mother’s solicitors were only informed yesterday that it was the intention of the father not to proceed with the application. The father knew some time ago that he had not received a grant of legal aid. The solicitor for the mother has provided to me this morning a schedule of costs based on the legal aid scale. These costs include the costs incurred on the last occasion on 23 April 2014 and the costs for the matter generally. In total, the costs are $2,593.
The solicitor for the father asked that no order be made as to costs as the father had no capacity to meet an order for costs. His only income is $465 per fortnight from government assistance and he has no property or other resources. That may well be correct; however the financial circumstances of the parties is not the only factor to be considered and is certainly not determinative. In this case the tax payer has been put to considerable expense in responding to the application. I have gone into some detail to explain that the application was entirely unmeritorious. The father should pay the costs incurred which have been wasted.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered ex tempore on 23 July 2014.
Associate:
Date: 23 July 2014
0
2
0