Ferreday and Layh (No 2)

[2019] FamCA 349

FAMILY COURT OF AUSTRALIA

FERREDAY & LAYH (NO. 2) [2019] FamCA 349

FAMILY LAW – COSTS – Circumstances justifying order – Where the there was no merit in the application – Where the application was wholly unsuccessful – Orders

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Ferreday

RESPONDENT: Ms Layh

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 122 of 2015

DATE DELIVERED: 11 April 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 11 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Southern Community Justice Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of South Australia

Orders

1. That MR FERREDAY pay the costs of MS LAYH fixed in the sum of FIVE THOUSAND ONE HUNDRED AND FOURTEEN DOLLARS ($5,114).

2. That MR FERREDAY pay the costs of the Independent Children’s Lawyer fixed in the sum of THREE HUNDERED AND NINETY TWO DOLLARS ($392).

3. That the costs payable pursuant to this order be paid upon the settlement of the sale of the property situated at M Street, C Town.

4. The Application in the Case filed 6 April 2019 be dismissed.

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 Ferreday & Layh 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 ADELAIDE

FILE NUMBER: ADC 122 of 2015

Mr Ferreday

Applicant

And

Ms Layh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The parties have been in significant conflict in respect of both parenting considerations for X, born in 2008 (“the child”) and the wife’s application for settlement of property.

2. The proceedings were finalised in July 2018. Judgment was delivered on 24 August 2018.

3. The husband was not satisfied with some aspects of the final orders and filed a Notice of Appeal in proceedings SOA69 of 2018. The husband sought to stay the orders. The stay application was heard and determined by me on 20 October 2018. The husband’s application was dismissed. As a result, the wife’s costs of and incidental to the husband’s application were reserved.

4. The issue today in relation to that application is not whether the wife is entitled to costs, but the quantum of those costs. By reference to the judgment, the application was dismissed, principally because the Court determined that there was no merit to any of the stated grounds, because it was difficult, if not impossible, to understand what the grounds were. The further consideration was that in respect of any appeal against orders for settlement of property the Court did not consider there was any merit in the application for stay given the husband refused to engage in the property proceedings. Accordingly, the application for stay was dismissed.

5. I then turn to the Affidavit filed by the wife on 8 April 2019 where she sets out in [5] the costs that she has incurred in relation to the stay. She seeks scale costs in respect of the solicitor’s fees and counsel’s fees in the sum of $3,500 for 10 hours at $350 per hour and an attendance upon the stay application for three hours at $350 per hour. Whilst the rate is not unreasonable, it is difficult to understand how 10 hours of preparation could have been undertaken in respect of a stay application which had limited prospects of success, if for no other reason than part of the application related to property matters that were unlikely to succeed and the balance was incomprehensible. There will be some adjustment made in relation to some of those hours in respect of the counsel fees.

6. A further application was filed by the husband on 11 February 2019, and again for reasons that are not entirely clear, he brought the application but then did not appear upon the hearing. There has been no affidavit filed to set out why it was that he did not appear, or explain his circumstances on that day. The matter was listed for hearing before me on 22 March 2019. The Court did not, simply, dismiss the 11 February 2019 application because of the non-attendance by the husband, but rather, there was some critical consideration by the Court of the nature of the application itself. Again, the overarching consideration was that it was nonsensical, incomprehensible and had no possible prospect of success.

7. To highlight the issue, [1] of the application sought a review of Registrar Paxton’s decision to reject a further application for a stay of the orders in circumstances where I had already rejected the husband’s stay application. It was therefore, an abuse of process by the husband to bring yet again another stay application, and in any event, the hearing on 22 March 2019 was only a day or so prior to the appeal hearing.

8. A similar consideration applied in respect of [2], but the grounds for the stay related to something that the husband describes as “damage to the child” and the second relates to something to do with a split of the husband’s pension as referred to in [293] to [294] of the judgment. The husband concedes that, in any event, the paragraphs are wrong, but it is difficult to understand what it was that he sought in terms of a split of his pension when there was no mention of it in the orders. The same issue was raised in [3] with similar considerations. Paragraph 4 relates to something that occurred by a different judicial officer in the District Court of South Australia and not associated to these proceedings.

9. Paragraph 5 related to an adjustment or variation of the final orders and subsequent orders on 22 January 2019 by a connection with s 60CC of the Family Law Act 1975 (Cth) (“the Act”). This is an issue that seems to resonate with husband. He contends that because he holds the property on trust for his daughter, it becomes a s 60CC factor. That was a matter that he raised during the course of the proceedings. It was considered and was found to have no basis.

10. Accordingly, the application in a case was dismissed and again by reference to the wife’s affidavit, she seeks costs of $350, being the cost of the attendance by her counsel for today’s hearing. The total costs are in the sum of $6,119, and subject to the further matters that I will raise, it is my view, that the quantum of costs should be reduced by $1,000 to $5,113.

11. In terms of whether an order for costs should be made I am obliged to consider provisions of s 117 of the Act, in particular, sub-s (1), which suggests that parties to proceedings should bear their own costs, subject to s 117(2) that if there are circumstances that would justify an order for costs being made, then in considering what order for costs, the Court must have regard to s 117(2A)(a) to (g).

12. Principally the issues that are of importance in respect of s 117(2A) relate to the financial circumstances of the parties and whether a party has been wholly unsuccessful in the proceedings or part of the proceedings. I am satisfied that the financial circumstances of the parties would make it such that the wife is entitled to her costs and that the husband is in a position to be able to pay those costs, understanding as I do the financial position of the parties and also the confirmation today that at least one of the properties was brought to account in the proceedings at a significantly lower value than it has now been sold for.

13. There are no countervailing factors, and there is no suggestion by the husband that there are other factors that I should bring to account. The next consideration is the extent of time for the costs order to be paid, it being a figure of $5,113. It is reasonable and of benefit to the husband that payment occur from the sale proceeds of the property at M Street, C Town.

14. Earlier in the course of the proceedings today, counsel appeared for the Independent Children's Lawyer (“ICL”). The ICL does not generally, seek costs in respect of the proceedings, but on this occasion, he seeks $392 for costs thrown away for the attendance on 22 March 2019, and I propose to make that order without alteration.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 April 2019.

Associate:

Date: 31 May 2019