Feranti and Connor (Costs Certificate) - [2010] FamCAFC 23

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (COSTS CERTIFICATE)

[2010] FamCAFC 23

FAMILY LAW - APPLICATION IN AN APPEAL – Application for costs certificate – Application dismissed.

Federal Proceedings (Costs) Act 1981 (Cth) – s 9

Langmeil & Grange [2010] FamCAFC 12

APPLICANT:

Mr Feranti

RESPONDENT:

Ms Connor

FILE NUMBER:

MLF

10368

1994

APPEAL NUMBER:

106

2007

DATE DELIVERED:

1 March 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland, Thackray & Benjamin JJ

HEARING DATE:

18 February 2010 and by way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 October 2007 12 November 2007 13 November 2007

LOWER COURT MNC:

[2007] FamCA 1446
[2007] FamCA 1447
[2007] FamCA 1708

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Mr Feranti in person

SOLICITOR FOR THE RESPONDENT:

No appearance by the respondent.

Orders

That the father’s application in an appeal filed 26 October 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Feranti & Connor (Costs Certificate) 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 ADELAIDE

Appeal Number: SA 106 of 2007
File Number: MLF 10368 of 1994

Mr Feranti

Applicant

And

Ms Connor

Respondent

REASONS FOR JUDGMENT

On 30 September 2009 we delivered reasons in an appeal by Mr Feranti (“the father”) against orders made by Watt J in contravention proceedings between the father and Ms Connor (“the mother”). The orders made by the trial Judge were made in November 2007. The orders made by us at the conclusion of the appeal were as follows:
(1)That the appeal be allowed in part.
(2)That Order 1(b) of the orders made 13 November 2007 be varied by deleting “on an indemnity basis” and substituting in lieu “on a lawyer and client basis”.
On 26 October 2009 the father filed an application in an appeal. In that application the father seeks the following orders:
1.The applicant be granted a Costs Certificate for the costs and expenses incurred in relation to Appeal SA106 of 2007 from MLF10368 of 1994.
2.Such certificate to be in the sum of $4,958.06.
A directions hearing was conducted before Boland J on 18 February 2010. Boland J noted that the mother had died on 27 December 2009. The independent children’s lawyer advised her Honour that she did not wish to make any submissions on the father’s application for a costs certificate. Boland J ordered the father file any submission on which he sought to rely in support of his application within 7 days. On 24 February 2010 the father filed written submissions in support of his application. We have read those submissions. The content of the submissions largely repeats matters set out in the father’s affidavit in support of his application.
The father filed an affidavit in support of his application. In that affidavit he referred to procedural orders made by the Appeal Registrar for preparation of the appeal books, and in the balance of his affidavit sets out the costs incurred by him for photocopying and obtaining the transcript of the proceedings. He also sets out expenses incurred by him attending the appeal in Adelaide. He deposes that none of the costs claimed relate to his applications to adduce further evidence, which applications were rejected by us.
At paragraph 6 of his affidavit the father deposes:
The appeal was allowed in part, as the Full Court found that his Honour had erred in relation to making an order for costs on an indemnity basis for part of the Contravention application that was before him. The Full Court corrected this error in their decision, and therefore the appeal was successful in that regard. All costs claimed in the above paragraphs were costs incurred directly in relation to the prosecution of the appeal.
The Federal Proceedings (Costs) Act1981 (Cth) provides in s 9 that a certificate may be granted by the Court to an appellant when an appeal is allowed on the basis of an error of law and the Court concludes that s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) should apply. Section 9 is in the following terms:
(1) Subject to this Act, and in particular without limiting section 6, where:
(a) a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of Federal appeal in subsection 3(1) succeeds on a question of law; and
(b) in accordance with section 117 of the Family Law Act 1975, each party to the appeal bears his or her own costs;
the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.
(2) The certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The granting of a certificate is not automatic but within the discretion of the Court.
The father’s Notice of Appeal set out 11 grounds of appeal. A careful examination of our reasons discloses that we found none of those grounds established.
Although one of the father’s grounds of appeal (ground 7) was directed to costs orders made by the trial Judge, that ground was agitated on the basis that the trial Judge had made a costs order against the father without evaluating his capacity to meet such an order. However, as we noted in paragraph 181 of our reasons, the father’s Summary of Argument was framed in quite different terms to the ground of appeal as pleaded. At paragraph 183 of our reasons we noted:
While these asserted errors are not identified in the single ground relating to costs, as we permitted the father to argue the claims before us, and because the mother was on notice (from the father’s submissions) we have dealt with them.
We determined that although an order for costs was properly made against the father, his Honour was in error in ordering costs be paid on an indemnity basis.
While technically the father is correct in asserting the appeal was allowed in part, the variation of the costs order from indemnity costs to lawyer and client costs formed a very minor aspect of our reasoning and was certainly not the focal point of the father’s appeal where he agitated a very substantial number of contraventions by the mother of earlier orders made in the proceedings and challenged the trial Judge’s determination in respect of the majority of those contraventions.
In his written submissions the father referred to a number of cases where at the conclusion of an appeal a Full Court has granted a certificate to a successful appellant pursuant to the provisions of the Federal Proceedings (Costs) Act 1981. We have considered the authorities to which we were referred. We are satisfied those authorities are readily distinguishable from the circumstances in this case. We observe that in Langmeil & Grange [2010] FamCAFC 12, although an appeal was only allowed in part, the Full Court granted a costs certificate on the basis that the issues raised by the appellant and in respect of which she had some success were matters of importance concerning the making of an order for sole parental responsibility.
In the context of the very limited success of the father in this appeal, we do not propose to exercise our discretion to grant a costs certificate to the father for the costs incurred in the preparation of the appeal books, which books largely went to the issue of asserted error by the trial Judge in his determination of the contravention applications.
Accordingly, we propose to dismiss the father’s application in an appeal filed on 26 October 2009.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 1 March 2010