Forster & Forster - [2008] FamCAFC 39

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER

[2008] FamCAFC 39

FAMILY LAW - APPEAL - APPEAL FROM DECISION OF FEDERAL MAGISTRATE - COSTS – application by respondent wife for costs – applicant husband wholly unsuccessful in relation to Amended Notice of Appeal – order for costs

Family Law Act 1975 (Cth) s 117(2A)(e)

APPLICANT:

Mr Forster

RESPONDENT:

Ms Forster

INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen

FILE NUMBER:

ADC

3359

2007

APPEAL NUMBER:

2007

DATE DELIVERED:

29 February 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

29 February 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Mr Berman

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen
Legal Services Commission of SA

Orders

That the Amended Notice of Appeal filed on 8 November 2007 by the husband be dismissed and removed from the active pending cases list.
That the husband pay to the wife’s solicitors on behalf of the wife the sum of THREE THOUSAND AND FOURTEEN DOLLARS [$3,014.00] by way of costs, such sum to be paid within two [2] months of the date hereof.
That the Application in a Case filed on 25 February 2008 by the wife be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Forster and Forster is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: SA 95 of 2007

MR FORSTER

Applicant

And

MS FORSTER

Respondent

EX TEMPORE REASONS

This matter comes before me today consequent upon my orders made on 30 November 2007 and also as a result of an Application in a Case filed by the respondent wife on 25 February 2008.
On 30 November 2007 what was before me on that occasion was an Amended Notice of Appeal filed by the husband on 8 November 2007 together with an Application in a Case filed by the husband on 8 November 2007 in which he sought an extension of time to file an application seeking leave to appeal against orders made by Federal Magistrate Lindsay on 26 September 2007, and in that same application he sought leave to appeal.
In the end result, I dismissed the Amended Notice of appeal insofar as it comprised an appeal against paragraph 1 of the orders made by Federal Magistrate Lindsay on 26 September 2007. I dismissed the Application in a Case filed on 8 November 2007 and removed that from the active pending cases list. I also made an order that the husband pay the sum of $2,000.00 to the wife by way of costs. That order was specifically in relation to the Application in a Case.
I did not finally dispose of the Amended Notice of Appeal because I gave leave to the husband to further amend that Amended Notice of Appeal, such that the husband was able to institute an appeal against paragraph 5 of a subsequent order made by Federal Magistrate Lindsay in this matter on 16 November 2007.
I gave the husband 14 days to file and serve that Amended Notice of Appeal and what I had in mind, which is clear from my reasons delivered on that day, was that on the assumption that the husband would take up that leave and file an Amended Notice of Appeal, there would then need to be a directions hearing about that and on that date or a subsequent date when I was finally able to deal with the Amended Notice of Appeal, I would hear and determine the wife’s application for costs which was also made on that day, 30 November 2007, in relation to the Amended Notice of Appeal filed on 8 November 2007. I adjourned the application for costs to a date to be fixed and noted that that date would be the same date as the Directions Hearing in the event that the husband filed an Amended Notice of Appeal.
What has happened is that the husband did not file an Amended Notice of Appeal. The matter has proceeded in the Federal Magistrates Court in relation to the substantive issues, and I note that the matter was last before that court on 25 February 2008 when orders were made. I also note, importantly for the purposes of proceeding today, that the husband appeared before the Federal Magistrate on that day.
In any event, this matter needs to be finalised and that is the purpose of today and referring specifically to the Application in a Case filed by the respondent wife, she seeks that the husband’s Amended Notice of Appeal filed on 8 November 2007 be dismissed and she pursues her application for costs, seeking the amount of $3,014.00.
The husband has not appeared today. I note that a letter was sent by the court to not only the husband, but the wife’s solicitors and also the Independent Children’s Lawyer, on 20 February 2008 advising of the hearing today. I note that in respect of the husband, that letter was sent to his address for service. There has been no return of that letter and there has been no communication that I am aware of from the husband in relation to today’s hearing, indicating either that he was not going to attend or indeed, advising the Court in any way of his position. To repeat, the husband has not attended today.
I note that I was informed from the bar table by Mr Boehm, who appears for the Independent Children’s Lawyer, and this has been confirmed by Mr Berman who appears for the wife, that the husband apparently advised the Federal Magistrate recently that he was proposing to return to the United States to conduct certain business there and he would be away for a number of weeks.
I note that attempts have been made to serve the husband with the Application in a Case which was filed on 25 February 2008 and I have before me an Affidavit of Service which tells me of two attempts to serve the husband; firstly, in the precincts of the Court on 25 February 2008 when the husband refused to take the documents, and secondly later that day at his home address when no-one appeared to be at home.
I am satisfied though that the husband is aware of today’s hearing, at the very least from the correspondence that this Court has sent advising of that date, and thus I am prepared to proceed in his absence and I propose to dismiss the Amended Notice of Appeal filed on 8 November 2007. Of course, I have already dismissed part of that Notice of Appeal but I will frame my order such that I dismiss the entire Notice of Amended Appeal so there is no confusion about there being anything left of that appeal before this court.
Turning to the question of costs, as I say, an oral application was made on 30 November 2007 in relation to the costs of the Amended Notice of Appeal but I adjourned that application as I have referred to. The supporting affidavit filed by the respondent wife’s solicitor details the costs sought and tells me that the costs sought are in accordance with the Family Law Scale set out in the relevant Schedule to the Family Law Rules.
I recall that I indicated on the last occasion, namely 30 November 2007, that there were circumstances justifying an order for costs but out of an abundance of caution, I refer to Section 117 of the Family Law Act 1975 which governs any application for costs and I am satisfied that there are circumstances that justify an order for costs and I particularly refer to Section 117(2A)(e) where:
In considering what order (if any) should be made for costs, the court shall have regard to whether any party to the proceedings has been wholly unsuccessful in the proceedings.
That is the case here. The husband has been wholly unsuccessful in relation to his Amended Notice of Appeal. I am also required to take into account the financial circumstances of each of the parties to the proceedings. I dealt with that on 30 November 2007; nothing has been put to me as to any change in the parties’ circumstances. Of course, I don’t have the husband here today but obviously he had the opportunity to attend if he wanted to and put any new matters to me in relation to that issue.
I need go no further than Section 117(2A)(e) in finding a justification for the order for costs and in my view the amount sought by the respondent wife is reasonable in the circumstances. I have the option of sending this matter off to taxation but my usual practice is not to do that if I can avoid it because it puts the parties to further expense, time and trouble. To repeat, though, I am satisfied that the amount sought is reasonable.

I certify that the preceding
15 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland
the 29^th day of February 2008.

……………………………………….
Associate