Forster & Forster & Anor

[2013] FamCA 130

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER AND ANOR [2013] FamCA 130

FAMILY LAW - JURISDICTION – application for damages by the husband against the litigation guardian appointed to him – where it was held that the Court had no jurisdiction to consider the matter – husband’s application dismissed.

FAMILY LAW - COSTS – application for costs by the wife – whether the circumstances justify the making of a costs order – consideration of section 117(2A) factors – where the husband was wholly unsuccessful in his application – where the Court took into consideration the husband’s concession that his application was “moot” – order that the husband pay the wife’s costs of an incidental to his application.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Forster

RESPONDENT: Ms Forster

INTERVENOR: Public Trustee (SA)

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 22 February 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mrs West

SOLICITOR FOR THE RESPONDENT: Catherine Hicks & Co

COUNSEL FOR THE INTERVENER Mrs Watson

SOLICITOR FOR THE INTERVENER Public Trustee Legal Unit

Orders

BY CONSENT IT IS ORDERED THAT

1. The Application in a Case filed on 21 January 2013 is dismissed.

IT IS FURTHER ORDERED THAT

1. Leave is given to the Public Trustee to intervene (and not being opposed) paragraph 2 of the order of 6 December 2011 is set aside and the Public Trustee is excused from any further attendance in relation to that matter.

2. The husband’s Response filed on 19 February 2013 is dismissed.

3. The husband to pay the wife’s costs of and incidental to the Application in a Case filed on 21 January 2013 to be fixed in the sum of THREE HUNDRED AND FIFTY DOLLARS [$350.00].

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3359 of 2007 (also SOA 44 of 2012)

Mr Forster

Applicant

And

Ms Forster

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. By consent the Application in a Case filed on 21 January 2013 is dismissed. 

2. The other matters that have been listed before me this morning are the Application in a Case filed on 29 January 2013 by the Public Trustee, Mrs Watson for the Public Trustee is seeking leave to intervene but only for the purpose of the discharge in paragraph 2 of the orders made on 6 December 2011 which is an order in relation to costs.

3. For the purpose only of the Application in a Case in relation to the order for costs, I give the Public Trustee leave to intervene and it not being opposed, I set aside paragraph 2 of the order of 6 December 2011.  The Public Trustee is excused from any further attendance in relation to that matter.

4. I am now dealing with the Response to an Application in a Case filed by the husband on 19 February 2013.  The first paragraph of that order seeks the discharge of paragraph 2 of the order of 6 December 2011.  I have made that order this morning.  The other orders sought in paragraph 1 are:

   The Publice [sic] Trustee/Crown solicitor’s office provide all documents for inspection and copying all documents that pertains to her representation as litigation guardian and other documents in regard to the respondent in control of Crown solicitor’s office.

5. It has been put to me that the Freedom of Information actions have been undertaken and submissions by the husband appear to indicate that he is taking issue with the findings that are made in relation to the Freedom of Information in another jurisdiction. 

6. In relation to the question of disclosure of all documents I have been told that all of the documents served on behalf of the wife during these proceedings have been provided to the husband.  It would appear that there is no basis upon which any further order would be made in relation to the Public Trustee providing documents, as it is confirmed that all documents received by the Public Trustee from the wife’s solicitors during the time which the Public Trustee was litigation guardian for the husband have been received. 

7. In the context of the current proceedings, therefore, there would appear to be no basis upon which to make the order in paragraph 1. 

8. Paragraph 2 is:

   That the litigation guardian be accountable for all cost associated with this litigation, value of property seized from the house at [… P Street, Suburb N] by opposition solicitor, between 24 Feb 2012, and for all cost thereafter for appeals, sale of the home and living cost (to be determined) occurred in Australia during her alleged appointment.

9. The phrasing of that application for an order is most difficult to understand and would not be the sort of order, in any event, that this Court would make.  However, taking into account the fact that the husband is unrepresented, I understand what he is seeking is that he wants to recover all sorts of losses which he claims have arisen as a result of the actions of the litigation guardian.

10. It is clear on the Court file that there are no costs associated with previous litigation in this Court which are still standing.  Those orders have been discharged.  It is not, therefore, an application for compensation for the costs of these proceedings, but rather an application seeking what could be described as damages as a result of actions the husband claims the litigation guardian took. 

11. The husband has been asked to give a basis upon which this Court has jurisdiction to deal with that matter.  The Family Law Act1975 (“the Act”) provides that this Court only has that jurisdiction which is given to it by the Act and a limited amount of ancillary or what could be described as accrued jurisdiction. Any proceedings between the husband and the Public Trustee or Crown solicitor’s office seeking damages for what is claimed to be their wrongful behaviour would be proceedings which should be taken in a Court which has jurisdiction to consider those matters.

12. I am satisfied that this is not a matter which is within the jurisdiction of this Court.  For those reasons, therefore, I dismiss the Response to the Application in a Case. 

13. I am being asked to make an order for costs of the wife’s counsel’s attendance today and in relation to the Application in a Case generally. 

14. The Application in a Case was filed on 21 January 2013 and was listed as its first return date before me today. 

15. When the matter came on before me this morning, Mr Forster, (“the husband”), the applicant in this Application in a Case conceded very promptly that the application was, as he described it “moot”.  He agreed to the dismissal of the Application in a Case which was filed on 21 January 2013. 

16. Therefore, it is clear that the husband has been wholly unsuccessful in the Application in a Case, which is one of the significant matters which have to be taken into account when considering orders in relation to costs. 

17. Section 117 provides that unless the Court is satisfied that it is otherwise just and equitable to make an order for costs, each party should bear their own costs.  The matters which have to be considered are those set out in subsection (2A) of section 117 dealing with the various factors including the financial circumstances of the parties. 

18. However, in this matter the clear indication is that the matter, as the husband said, has become “moot”.  It should have been withdrawn, which would not have necessitated the attendance of counsel before this Court today in relation to that application.

19. That is the most significant factor in this case.  Bearing in mind the background to the matter and the financial circumstances as disclosed in the past proceedings, I am satisfied that it is just and equitable to make an order for costs of the wife in relation to the Application in a Case filed on 21 January 2013, which has been dismissed.

20. I fix the amount on the basis that the consideration of the application itself and the supporting affidavit material would in any event probably exceed that amount on the scale and that it takes into account a modest amount in relation to counsel’s attendance on the matter this morning.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 February 2013.

Associate: 

Date:  4 March 2013