FAMILY COURT OF AUSTRALIA
Farrand & Mahdi (No. 3) [2021] FamCA 519
File number(s): BRC 11658 of 2018 Judgment of: CAREW J Date of judgment: 15 July 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where an order was made for costs in the substantive proceedings – Where a Registrar made an order for costs associated with a previous interim application – Where there is a dispute as to whether the order for costs in the substantive proceedings dismissed the application for costs before the Registrar - Whether the order for costs in the substantive proceedings is amenable to variation pursuant to the slip rule – Where it is found that the reasons for judgment make it clear that the application for costs arising out of the interim parenting hearing was not before the Court – Where it is found that the order does not reflect the intention of the Court and can be amended pursuant to the slip rule – Where the decision of the Registrar stands. Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Cases cited: Farrand & Mahdi (No. 2) [2021] FamCA 168
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Kohan and Kohan (1993) FLC 92-340
Penfold v Penfold (1980) 144 CLR 311
Prantage v Prantage (2013) 49 Fam LR 197
Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Number of paragraphs: 54 Date of hearing: 9 July 2021 Place: Brisbane Solicitor for the Applicant: L & S Lawyers Solicitor for the Respondent: Murdoch Lawyers ORDER
BRC 11658 of 2018 BETWEEN: MS FARRAND
ApplicantAND: MR MAHDI
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
15 JULY 2021
THE COURT ORDERS THAT:
1.Paragraph 2 of the order made by the Honourable Justice Carew on 26 March 2021 be amended pursuant to the slip rule to read as follows:
2. All outstanding applications (save for the Application in a Case for costs filed on 21 May 2020) be otherwise dismissed.
2.The time for filing the Application in a Case for review of the decision of Registrar Spink made on 16 April 2021 as amended on 16 June 2021 be extended to 18 May 2021 nunc pro tunc.
3.The Application in a Case filed on 18 May 2021 for review of the decision of Registrar Spink made on 16 April 2021 as amended on 16 June 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Farrand & Mahdi
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Details
- AGLC
- Farrand & Mahdi (No. 3) [2021] FamCA 519
- Case
- [2021] FamCA 519
- Decision Date
CaseChat Overview and Summary
In *Farrand & Mahdi (No. 3)*, Carew J considered an application to amend a costs order made on 26 March 2021 in substantive parenting proceedings between a maternal grandmother (applicant) and the children's father (respondent). The dispute arose from a costs order made by a Registrar on 16 April 2021, which the respondent sought to have reviewed. The core of the issue was whether the earlier costs order of 26 March 2021 had implicitly dismissed the respondent's application for costs related to a previous interim parenting application, or if that application remained outstanding.
The legal issues before the Court were whether the costs order of 26 March 2021 was amenable to variation under the slip rule, and if so, whether it accurately reflected the Court's intention regarding the outstanding costs application from the interim parenting hearing. The applicant argued that the order did not arise from an accidental slip and that amending it would cause prejudice, as she had discontinued her appeal against the 26 March 2021 costs order based on the understanding that it encompassed all costs applications.
Carew J found that the reasons for judgment delivered on 26 March 2021 clearly indicated that the respondent's application for costs arising from the interim parenting hearing was not before the Court at that time. The Court determined that the wording of paragraph 2 of the 26 March 2021 order was infelicitous and did not reflect the Court's intention to dismiss all outstanding applications, save for the specific costs application filed on 21 May 2020. Consequently, the Court held that the order could be amended pursuant to the slip rule, specifically subrule (e) or (h) of Rule 17.02 of the *Family Law Rules 2004* (Cth), as it contained an error arising from an accidental slip or omission.
The Court ordered that paragraph 2 of the order made on 26 March 2021 be amended to read: "All outstanding applications (save for the Application in a Case for costs filed on 21 May 2020) be otherwise dismissed." The Court also extended the time for filing an application for review of the Registrar's decision and subsequently dismissed that review application. The decision of the Registrar regarding costs for the interim parenting application was therefore permitted to stand.
The legal issues before the Court were whether the costs order of 26 March 2021 was amenable to variation under the slip rule, and if so, whether it accurately reflected the Court's intention regarding the outstanding costs application from the interim parenting hearing. The applicant argued that the order did not arise from an accidental slip and that amending it would cause prejudice, as she had discontinued her appeal against the 26 March 2021 costs order based on the understanding that it encompassed all costs applications.
Carew J found that the reasons for judgment delivered on 26 March 2021 clearly indicated that the respondent's application for costs arising from the interim parenting hearing was not before the Court at that time. The Court determined that the wording of paragraph 2 of the 26 March 2021 order was infelicitous and did not reflect the Court's intention to dismiss all outstanding applications, save for the specific costs application filed on 21 May 2020. Consequently, the Court held that the order could be amended pursuant to the slip rule, specifically subrule (e) or (h) of Rule 17.02 of the *Family Law Rules 2004* (Cth), as it contained an error arising from an accidental slip or omission.
The Court ordered that paragraph 2 of the order made on 26 March 2021 be amended to read: "All outstanding applications (save for the Application in a Case for costs filed on 21 May 2020) be otherwise dismissed." The Court also extended the time for filing an application for review of the Registrar's decision and subsequently dismissed that review application. The decision of the Registrar regarding costs for the interim parenting application was therefore permitted to stand.
Orders
Orders of the court
1. Paragraph 2 of the order made by the Honourable Justice Carew on 26 March 2021 be amended pursuant to the slip rule to read as follows:
2. All outstanding applications (save for the Application in a Case for costs filed on 21 May 2020) be otherwise dismissed.
2. The time for filing the Application in a Case for review of the decision of Registrar Spink made on 16 April 2021 as amended on 16 June 2021 be extended to 18 May 2021 nunc pro tunc.
3. The Application in a Case filed on 18 May 2021 for review of the decision of Registrar Spink made on 16 April 2021 as amended on 16 June 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Before considering the submissions of each party it may be helpful to set out some brief background. BACKGROUND The substantive proceedings were parenting proceedings. The applicant is the maternal grandmother of two children and the respondent is the children’s father. Sadly, the children’s mother passed away on … 2018. A final parenting order was made on 16 October 2020. The final parenting order restrains the applicant from having any contact with the children other than sending a gift and card on special occasions. The applicant has appealed against that decision. The appeal was heard on 11 May 2021 and the decision is reserved. On 26 November 2019 the applicant filed an interim application seeking an order that she spend time with the children pending the final hearing. The application was opposed by the respondent and the Independent Children’s Lawyer (“ICL”). The applicant’s interim application was dismissed by a Registrar on 14 May 2020. The respondent’s submissions and the ICL’s submissions were accepted by the Registrar, namely, that “the application of the grandmother was not one that could be determined on an interim basis” and was “misconceived”. On 21 May 2020 the respondent filed an Application in a Case for costs against the applicant in relation to her failed interim application to spend time with the children pending the final hearing. The respondent sought costs on an indemnity basis fixed in the sum of $30,085.55 or alternatively in a fixed sum of $26,582.46. On 18 August 2020 an order was made for the applicant to file her response to the respondent’s application filed 21 May 2020, and both parties were ordered to file written submissions. The last submission was made on 12 March 2021. With the consent of the parties the matter was determined in the absence of the parties. On 16 April 2021 the Registrar ordered costs against the applicant in relation to the failed interim parenting application in the sum of $15,000. I note that at paragraphs [4]–[6] of the Reasons delivered by the Registrar he said as follows:4. The grandmother as a preliminary submission sought that I stay the father’s application pending the hearing of the grandmother’s appeal against the final parenting orders made by the Honourable Justice Carew. 5. In my view the interim orders that I made were discrete from the final hearing before her Honour and my orders were not reviewed. 6. It is my view that that the findings by the Full Court on appeal will not have any bearing on the father’s application for costs before me. It is my view that there is no basis for me to stay the father’s application for costs pending the appeal. On 26 March 2021 i.e. prior to the delivery of the interim costs decision by the Registrar, a costs order was made against the applicant in a fixed sum of $50,000 in relation to the substantive proceedings. Paragraph 3 of the Reasons delivered on that day provides as follows:[2]3. The father has now applied for the maternal grandmother to pay his costs of those proceedings on an indemnity basis in the sum of $178,993.25 and the costs of his application for costs. In the alternative, the father seeks an order for the payment of his costs to be assessed or as agreed. The costs sought do not include the costs associated with an interim application; the subject of a separate application before a Deputy Registrar. (Emphasis added)[2] Farrand & Mahdi (No. 2) [2021] FamCA 168 at [3].
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The applicant opposes amendment of the order pursuant to the slip rule, submitting that the error does not arise out of an accidental slip or omission. I also infer that the applicant argues that the order does reflect the intention of the court. Further, the applicant submits that amendment of the order would cause her prejudice because she discontinued her appeal against the costs order made on 26 March 2021 on the understanding that it dealt with all costs applications and if that were not so, she would have to seek to reinstate her appeal. Although this submission was made, I note that there was no evidence as to the applicant’s state of mind at the time her appeal against the costs order was deemed abandoned.Conclusion – slip rule In my view, the Reasons dated 26 March 2021 make it clear that the respondent’s application for costs arising out of the interim parenting hearing was not before the Court. There were numerous applications before the Court at that time, as earlier outlined, and in my view the intention of the Court was to dismiss those applications. It is accepted that the wording in paragraph 2 of the order is infelicitous but in my view it may be amended pursuant to the slip rule and in particular pursuant to subrule (e) or subrule (h). The order does not reflect the intention of the Court and there is an error arising in the order from an accidental slip or omission. Accordingly I propose to amend the order as follows:2. All outstanding applications (save for the Application in a Case for costs filed on 21 May 2020) be otherwise dismissed.REVIEW I turn now to consider, as an original hearing, the respondent’s application for costs relating to the applicant’s failed attempt to obtain an interim order to spend time with the children pending the final hearing.PRINCIPLES APPLICABLE TO AN APPLICATION FOR COSTS Although each party generally bears their own costs in this jurisdiction (s 117(1) of the Act), the Court has a broad discretion[5] to make such order as to costs as the Court considers just where there are circumstances that justify it in doing so (s 117(2)). [5] Collins & Collins (1985) FLC 91-603 at 79, 877. An applicant for costs bears no “additional or special onus” other than the establishment of “justifying circumstances”.[6][6] Penfold v Penfold (1980) 144 CLR 311 at 315. In the exercise of the discretion to award costs, regard must be had to the factors set out in s 117(2A) of the Act, so far as they are relevant. Those factors are as follows: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; andg)such other matters as the Court considers relevant.
Ratio Decidendi
Legal Principle Established
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