Fire and Fire (No 2) - [2011] FamCAFC 130

FAMILY COURT OF AUSTRALIA

FIRE & FIRE (NO. 2)

[2011] FamCAFC 130

FAMILY LAW - APPLICATION IN AN APPEAL – failure of wife to comply with orders to prepare the appeal for hearing and to show reasonable diligence in proceeding with the appeal – wife chose not to take the appropriate administrative course of filing a notice of withdrawal – amended notice of appeal dismissed.

FAMILY LAW - COSTS – governed by s 117 of the Act – are there circumstances which justify an order for costs being made – failure of wife to comply with orders made in April 2011 and failure to attend hearing – financial circumstances of parties relevant – husband’s financial circumstances put in general terms by his counsel from the bar table – no specific information regarding wife’s financial circumstances as a result of the wife’s failure to attend – at previous hearing wife from bar table without documentary evidence put that she was in dire financial circumstances – no indication from wife as to whether she would attend hearing which meant that the husband had to incur costs of having counsel attend – significant and relevant factor – costs order made as sought by the husband.

Family Law Act 1975 (Cth) s 117(1), (2) and (2A)
Family Law Rules 2004 (Cth) r 22.45

APPELLANT:

Ms Fire

RESPONDENT:

Mr Fire

FILE NUMBER:

MLC

12680

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

7 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

7 June 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 February 2011

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

No Appearance

COUNSEL FOR THE RESPONDENT:

Mr Harrison

Orders

The amended Notice of Appeal filed by the wife on 6 April 2011 be dismissed.
The wife pay to the husband the sum of six hundred and sixty dollars [$660] by way of costs, such sum to be paid within sixty days of the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Fire & Fire (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA23 of 2011
File Number: MLC 12680 of 2007

Ms Fire

Appellant

And

Mr Fire

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This is an amended Notice of Appeal filed by the wife on 6 April 2011 against orders made by Federal Magistrate Turner on 22 February 2011.
The wife, as is required, filed a draft appeal index on 29 March 2011 and the appeal came before me on a directions hearing on 27 April 2011 when the wife appeared in person and the husband was represented. Coincidentally that date was also the date fixed for the hearing of an application in an appeal filed by the wife on 28 March 2011, seeking an extension of time to file an appeal against orders also of Federal Magistrate Turner made on 8 February 2010. I observe that that application was dismissed on that day and the directions hearing in relation to this appeal was then conducted.
In the usual way I made orders for the preparation of this appeal for hearing and I listed the matter today, for hearing. Importantly, I ordered that by

18 May 2011 the wife obtain the transcript of the hearing on 22 February 2011 or file and serve an application in an appeal seeking an order that the Court provide a copy of that transcript. I further provided that the wife was to file and serve any application to lead further evidence by that same date, namely

18 May 2011.
The wife has failed to comply with my order that she either obtain a copy of the transcript or file and serve an application in an appeal seeking an order that the Court provide a copy. She also has not filed any application to lead further evidence. Of course that may have been because she ultimately did not propose to, and thus I do not rely on the wife’s failure to do that as a reason for dismissing the appeal today. I do however rely on her failure to comply with paragraph 2 of my order made on 27 April 2011, and also her failure to show reasonable diligence in proceeding with the appeal.
The wife has chosen not to take the appropriate administrative course of filing a notice of withdrawal of the appeal. She has let the matter proceed to today’s hearing and that has importance and relevance when I come to consider the application for costs.
In terms then of the oral application that is before me today by the Respondent namely, that the appeal be dismissed, I have no hesitation in doing that and rule 22.45 is the relevant rule to which I need have regard for that purpose.
Turning then to the application for costs, rule 22.45 provides for an application for costs to be made in the event that an appeal is dismissed under that rule. The order sought is that the wife pay costs in the sum of $660. I am told that that is the counsel fee for today, and that no costs are sought by the husband’s solicitor.
As with any order for costs this application is governed by s 117 of the Family Law Act 1975 (Cth). Insofar as that section is relevant it provides as follows:
(1) [Party bears own costs] Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) [Costs Orders] If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) 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.
(2A) [Matters relevant to costs order] 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 consider relevant.
There are two questions which need to be addressed. Firstly, whether there are circumstances that justify an order for costs being made and secondly, if there are, what order should be made. In determining that question there are factors set out in s 117(2A) to which regard must be had.
In terms of the first question, given the failure of the wife to comply with the orders made on 27 April 2011, and her failure to attend today, I have no hesitation in finding that there are circumstances here that justify an order for costs.
In terms of what order should be made, as I say, the sum of $660 is sought.
One of the factors to which I must have regard, to the extent that I can, are the financial circumstances of the parties. Mr Harrison from the bar table has told me in general terms what his client’s financial position is namely, that he is working full time, he earns $140,000 gross per year, he pays $24,000 by way of child support and he pays an amount of $6,000 in other support for the children.
In terms of the wife’s financial circumstances, I have no specific information. That is a result of the wife’s failure to attend today. I note though that on

27 April 2011 the wife, from the bar table and without any documentary evidence at all, put to me that she was in dire financial circumstances. I need to take that into account as best I can, given the wife’s absence today.
The failure of the wife to comply with the orders of this Court and the failure of the wife to attend has necessarily resulted in the husband having to incur costs. Those costs in particular include the costs of having counsel attend today given there was absolutely no indication from the wife as to whether she would attend today, whether she would pursue the appeal today or what her position was. That in my view is the most significant and relevant factor in terms of what order for costs is made.
In the circumstances I propose to make an order for costs in the amount sought by the husband.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 June 2011.

Associate:

Date: 16 June 2011