Feiteiro & Feiteiro

[2019] FamCA 647

FAMILY COURT OF AUSTRALIA

FEITEIRO & FEITEIRO [2019] FamCA 647

FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision – where the husband was seeking a review of a Registrar’s costs orders –decision of Registrar is affirmed – where the husband filed a notice of objection to a subpoena issued by the wife for his medical records – where the objection the husband took to the subpoena was unmeritorious and ultimately defeated – where the conduct of the husband caused delay and unnecessary costs to the wife

Family Law Act 1975 (Cth) ss 37A(9), 37A(10), 117(1), 117(2)
Family Law Rules 2004 (Cth) r 18.10

Baum & Lokare (No 2) [2019] FamCA 292
Henley & Henley (2019) FamCA 101
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Wrenstead v Eades [2016] FLC 93-697

APPLICANT: Mr Feiteiro

RESPONDENT: Ms Feiteiro

FILE NUMBER: DGC 3222 of 2017

DATE DELIVERED: 28 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 20 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Kanarev

SOLICITOR FOR THE RESPONDENT: Alphastream Lawyers

Orders

1. The husband’s Application in a Case filed 18 June 2019 be dismissed.

2. The applicant husband pay the respondent wife’s costs of $4,021.16 for 7 June and 14 June 2019, and these costs be the subject of an adjustment against the husband’s entitlements and be paid to the wife.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3222 of 2017

Mr Feiteiro

Applicant

And

Ms Feiteiro

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 June 2019 the husband filed an Application in a Case seeking review of a decision of a Registrar awarding costs against him in the amount of $4,021.16. The husband’s proceeding against the wife was listed to commence before me on 20 June 2019. At the commencement of the hearing on 20 June 2019 the parties were able to resolve the matters on a final basis and, being satisfied that it was just and equitable to do so, I made orders in the terms to which the parties consented on that day. The only matter left to determine is the husband’s Application in a Case seeking a review of the Registrar’s costs order.

2. On 14 June 2019 the Registrar pronounced the following orders:

   a)The subpoenaed records from Dr B produced on 11 and 12 June 2019 be released to the solicitors only for inspection.

   b)There be liberty to apply in Chambers if the subpoenaed records are found to be incomplete.

   c)The Applicant Husband pay the Respondent Wife’s costs of $4,021.16 for 7 June and 14 June 2019, such payment to be stayed until final orders are made in these proceedings at which time these costs are to be adjusted against the Husband’s entitlements and paid to the Wife.

3. The wife has had legal representation and was assisted by counsel on 20 June 2019. The husband is self-represented and appeared in person.

4. For the reasons which follow I will make orders pursuant to s 117(2) of the Family Law Act 1975 (“the Act”) requiring that the husband pay the wife’s costs in the amount ordered by the Registrar.

Background

1. The parties commenced cohabitation in 1996, having been married that same day. They separated on 29 March 2017 and the wife’s application for divorce was granted in 2018 in the Federal Circuit Court. The husband thereafter appealed the divorce order, however that appeal was dismissed by Strickland J in 2019, and an order for costs was made against the husband. The husband applied for special leave to appeal the decision of Strickland J to the High Court of Australia. On 11 September 2019 Bell and Gageler JJ refused the husband’s application for special leave.

2. On 11 October 2017 the husband filed an Initiating Application in this Court seeking property and parenting orders on a final and interim basis.

3. On 14 May 2019 the solicitors for the wife issued a subpoena to the husband’s treating medical physician, Dr B of C Street Medical Clinic in Suburb D for the production of “copies of any and all medical records, correspondence, notes and reports in the name of and/or concerning the respondent, Mr Feiteiro, date of birth in … 1966, previously of E Street, Suburb D VICTORIA, currently of F Street, Suburb D VIC and postal address PO BOX … Suburb G VICTORIA” (“Medical Records”). Dr B was required to produce the Medical Records to the Family Court of Australia, Melbourne Registry, on or before 4.30 pm on 28 May 2019. It is common ground that Dr B did not comply with the notice to produce and the husband’s Medical Records were not delivered to the Court by this time.

4. In his affidavit filed 18 June 2019 (“the husband’s affidavit”) the husband summarises the timeline in relation to the Medical Records as follows (at paragraphs 5-8):

   5.On the 14^th of May 2019, the respondent’s lawyers made an application to the court for subpoenaing my medical records. Prior to this the applicant was given to understand that his Dr B was contacted for in relation to his medical records, Dr refused communication.

   6.After being served this subpoena, the applicants Dr B advised the respondent’s lawyers that he would advised the applicant first and then prepare the documents for submission.

   7.The applicant as well as his Dr was surprised with the request as the applicant has been unwell since the past 2 years and the respondents lawyers were well aware of the situation but chose to look the other way.

   8.The applicant filed a notice of objection and advised the Dr not to release his medical records to anybody but copies can be sent to court as per his understanding.

5. On 20 May 2019 the husband filed a Notice of Objection - Subpoena. The husband’s objection to the production of his Medical Records was put on the following bases:

   a)My medical records / letters were on purpose destroyed went sent to the marital home by my wife on advice of her solicitors. This is another exmple of shonky solicitors adding on to calumny of the proceddings so as to increased their own commercial billings. These medical record are now irrelevant.

   b)For over 2 years they were not concerned about my health condition and on purpose ignored calls and correspondence when made to them. On court records (copies of transcripts with myself) my wife and her daily paid counsel have clearly stated that they were not concerned to know about my medical condition and had no remorse if I was sick, had died or better died earlier.

   c)Given my health records are my private records and under the acts I object to them being released and my Dr B has been advised and has not been given the approval to have them released.

6. The husband’s objection to the wife’s subpoena was first listed to be heard on 7 June 2019 before a Registrar. However as the Medical Records had not been produced to the Court by the time of this hearing, the Registrar advised the parties that the objection could not proceed. The following orders were made:

   a)The time for compliance with the subpoena issued on 14 May 2019 to Dr B of the C Street Medical Clinic is extended to 4:00pm on 12 June 2019.

   b)The matter is adjourned to the Registrars’ Directions List on 14 June 2019 at 9:30am for determination of the subpoena objection.

   c)The solicitors for the wife forthwith notify Dr B in writing that the time for compliance with the subpoena issued on 14 May 2019 has been extended.

   d)The costs of the wife be reserved to the adjourned date.

7. The objection came back before a different Registrar on 14 June 2019 where the Registrar made the orders set out in paragraph 2 above which are now the subject of the husband’s application to review.

8. At the hearing before me on 20 June 2019 the wife’s counsel outlined the circumstances in which the costs order was made. It was submitted that a costs order was made on the basis that the subpoena objection was entirely unsuccessful and had resulted in unnecessary costs being incurred by the wife.

9. It was further submitted by counsel for the wife that the husband objected to the subpoena for his Medical Records on the grounds of relevance, however after two appearances before a Registrar the husband ultimately consented to the documents being produced, but not that they be photocopied.

10. The husband’s evidence appears to align with these submissions. The husband’s affidavit (at paragraphs 22-23) is to the effect that he consented to the Registrar releasing his documents for viewing purposes only, which resulted in the wife making a costs application against him, which he opposed.

11. The husband deposed as follows in relation to the relevance of his medical records (at paragraphs 11-12):

    11.The respondent’s daily counsel argued that they were seeking the medical records as the applicant has shown himself as disabled to work and was seeking an allowance in the final settlement under Section 75 of the family law Act which was UNTRUE.

    12.The Applicant has never made a request to seek an allowance under s75 in any of his affidavits. The registrar Russell also advised the respondent’s counsel that it would have been in the applicant’s interest to make these records known to the court rather than from the respondent’s dally [sic] paid counsel which the registrar felt was also not warranted for.

Review of the Decision of a Registrar

1. Section 37A of the Act is concerned with delegation of powers to Registrars. Sub-sections 37A(9) and (10) are as follows –

   (9)A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.

   (10)  The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised.

2. Rule 18.10(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: Henley & Henley (2019) FamCA 101 [7], (Tree J).

3. As is well known, the general rule under the Act is that parties to proceedings shall each bear their own costs, unless there are circumstances which justify the court departing from that general rule: s 117(1) of the Act.

4. Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

5. Accordingly, a party seeking that the court make a costs order must establish that the justice of the case requires an order for costs by reference to the non-exhaustive list of statutory considerations set out in s 117(2A) before such an order is made: Baum & Lokare (No 2) [2019] FamCA 292 at [10] (“Baum”). Any one, or any combination, of these matters can be matters on the basis of which the court could make a costs order. Whilst the considerations must be taken into account, there is nothing to prevent any factor being the sole foundation for an order for costs being made: Baum at [11]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) Fam LR 123 at [40].

6. Section 117(2A) of the Act is in the following terms –

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

7. An applicant for costs must establish the circumstances in which a costs order would be justified. However as the Deputy Chief Justice observed in Baum, at [10], citing Penfold v Penfold (1980) 144 CLR 311 at 315, “it is not the case that a costs order can only be made in what has been described as a ‘clear case’”. In Wrenstead v Eades [2016] FLC 93-697 at [15] the Full Court reiterated this position, noting that as long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the applicant needs to be established in order to obtain an order for costs.

8. I am satisfied on the basis of the husband’s affidavit that he took an objection to the wife’s subpoena which was unmeritorious and which was ultimately unsuccessful, and that his conduct caused delay and the wife to incur additional costs.

9. In these circumstances, and having regard in particular to s 117(2A)(c) of the Act, I take the same view as the Registrar. There will be an order that the applicant husband pay the respondent wife’s costs of $4,021.16 for 7 June and 14 June 2019, and that these costs be the subject of an adjustment against the husband’s entitlements and be paid to the wife.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 28 October 2019.

Associate: 

Date:  28 October 2019