Fortnum and Fortnum (Costs)
[2011] FamCAFC 183
•6 September 2011
FAMILY COURT OF AUSTRALIA
| FORTNUM & FORTNUM (COSTS) | [2011] FamCAFC 183 |
| FAMILY LAW - COSTS |
| Family Law Act 1975 (Cth) |
| Fortnum & Fortnum (No.3) 2008 FamCAFC 133 Harris and Harris (1991) FLC 92-254 Pennisi and Pennisi (1997) FLC 92-774 TAF v MEF 2009 HCASL 93 |
| APPELLANT: | Mr Fortnum |
| RESPONDENT: | Ms Fortnum |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | SYF | 631 | of | 2002 |
| APPEAL NUMBERS: | EA EA | 18 66 | of of | 2007 2006 |
| DATE DELIVERED: | 6 September 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Coleman and Cronin JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 May 2006 |
| LOWER COURT MNC: | [2006] FamCA 524 |
SUBMISSIONS RECEIVED FROM:
| SOLICITOR FOR THE APPELLANT: | Morgan Ardino & Co |
| SOLICITOR FOR THE RESPONDENT: | DGB Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders
That the husband’s appeal against the orders made by Cohen J on 22 January, 2007 be dismissed.
That the husband pay the costs of the wife and the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Fortnum & Fortnum (Costs) 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 SYDNEY |
Appeal Numbers: EA 18 of 2007 & EA66 of 2006
File Number: SYF 631 of 2002
| Mr Fortnum |
Appellant
And
| Ms Fortnum |
Respondent
Independent Children’s Lawyer
REASONS FOR COSTS JUDGMENT
The appellant husband appealed against parenting orders made by Cohen J on 16 June, 2006. He subsequently appealed against orders made by his Honour on 22 January, 2007 that he pay the costs of the wife and the independent children’s lawyer on an indemnity basis arising out of the parenting hearing.
On 4 September, 2008, we dismissed the husband’s appeal against the parenting orders (Fortnum & Fortnum (No.3) [2008] FamCAFC 133).
On 29 April, 2009, the husband’s application for special leave to appeal to the High Court of Australia against the parenting orders was dismissed (TAF v MEF [2009] HCASL 93).
The issues
The outstanding issues dealt with in these reasons relate to the indemnity costs order and the costs of the appeal against the parenting orders.
The background
The substantive issue between the parties was the parenting dispute. The husband represented himself throughout the trial process and the appeal hearing. Cohen J ordered the husband have no contact with the child of the relationship of the parties. In his judgment, his Honour found that the child was in danger of being physically and psychologically harmed if he had contact with the husband. In our reasons for judgment on the appeal, we held that the decision was a discretionary one and there was no material error which vitiated the exercise of that discretion. In addition, allegations of bias and bullying together with complaints about a denial of natural justice were not established.
In the reasons for refusing the husband’s application for special leave to the High Court, Hayne and Crennan JJ said they saw no reason to doubt the correctness of the conclusions reached by the Full Court. Their Honours held that there was no basis to interfere with the factual findings of Cohen J based upon the trial judge’s assessment of the credibility of witnesses that the child would be in great danger if he had contact with the husband. Their Honours said that the interests of justice did not warrant a grant of special leave.
Upon the hearing of the appeal before us, orders were made that each party file written submissions on the indemnity costs dispute because those orders may have been affected by the outcome of the parenting appeal.
The indemnity costs order
On 22 January, 2007 Cohen J ordered as follows :
That the husband pay the wife’s costs and the children’s representative’s costs, who is now the independent children’s lawyer, on an indemnity basis as agreed or taxed within one month, such costs shall include the costs of today’s hearing.
In his reasons, for making the orders, his Honour said having regard to the findings that he ultimately made, the husband should not have defended the application brought by the wife in respect of the children’s orders in the first place. His Honour said that the husband should not have sought orders for what was, in effect, shared care, equally shared care or nearly equally shared care and telephone and other contact with the child. He said that the husband should have known that his application would be bound to fail because of what he had done or should fail because of what he had done.
His Honour dealt with the matters set out in s117 and s 117(2A) of the Family Law Act 1975 (Cth) in some detail.
His Honour then went on to say that it was appropriate that the husband pay the relevant costs and then said :
I think that, even if it would be the case that the wife suffers no financial hardship, that there should be an order for indemnity costs against the husband despite his real impoverishment and the unlikelihood that he will be able to meet those costs in full and a higher level of likelihood, that, if he does pay some of the costs that are ordered against him, he will suffer quite considerable hardship in having to do so, there is a need for the Court to take a stance. There is a need to make the public understand that the Court is interested, and will act to do everything it can, to protect the welfare of children. In my view, in this case, there is a general public interest in the making of an indemnity costs against the husband in view of the findings that I made to discourage others from pursuing a similar course to that of the husband, and I shall do so.
The husband filed a Notice of Appeal on 19 February, 2007 specifically in respect of the costs orders and set out his grounds in a narrative form which when condensed, asserted :
(a)Cohen J punished him with the indemnity costs orders because he refused to plead guilty to the serious assaults which his Honour found had been perpetrated on the husband’s now adult daughter;
(b)Cohen J bullied and degraded the husband in front of the court;
(c)Cohen J refused to allow him to call certain evidence;
(d)Cohen J allowed witnesses to display open contempt for the husband whilst he was cross-examining them; and
(e)Cohen J was biased.
The husband requested an extension of the initial time granted at the hearing of the substantive appeal, to file submissions in relation to the indemnity costs matter because of his application for special leave. That extension of time was granted.
As a result of the decision on the special leave application, on 19 May, 2009 we ordered that submissions from each of the parties be filed and served as follows :
(a)by the husband by 8 June, 2009 in response to the submissions of the wife;
(b)by the wife and the independent children’s lawyer in reply by 22 June, 2009; and
(c)by the husband by 6 July, 2009 in reply to any submissions of the wife and the independent children’s lawyer.
The husband filed his initial submissions on 9 June, 2009. The document set out the husband’s views about the various courts that had been involved in his case. If anything could be said to be connected with the appeal against the costs orders, it was set out in the husband’s document as follows :
9. Charging money for an illegal act is extortion.
10. I cannot be a part of an illegal act.
11.I cannot tender my reasonable costs because it is extortion to be paid for taking part in extortion.
12.Any decision made by the court is not legal and is a contempt of the people and our justice system . . . or what is left of it if any.
Subsequent to filing the last mentioned document, the husband notified the court that he intended to obtain legal advice and at his request, we again extended the time for him to file material about the costs issues. What then followed was an attempt by a lawyer on behalf of the husband to file an amended Notice of Appeal. The notice argued that the substantive judgment of Cohen J had been procured by fraud and accordingly the case should be reopened. A long submission drawn by the lawyer accompanied the notice. That material was sent by the Appeals Registrar to each of the members of this Full Court.
After correspondence between the Regional Appeals Registrar and the lawyer, a letter was received at the registry on 6 October 2009 from the lawyer saying that the appellant had instructed him not to file an application to seek to re-open the “substantive proceedings”.
The lawyer did however attach to his correspondence a letter from the appellant which was to be distributed “to those who may be interested”.
The husband’s letter does not address any of the costs issues in the appeal.
We turn then to the appeal against the costs orders and the pursuit by the wife and the independent children’s lawyer for costs on the appeal. Despite a variety of opportunities and significantly having had the assistance of a lawyer, the husband has not advanced any material which could be said to support any of the grounds referred to earlier. More importantly, no ground has otherwise been advanced by the husband to show that this decision was not appropriately within the limits of his Honour’s discretion.
Appeals against costs orders are not often successful because of the discretionary nature of the order. In Harris and Harris (1991) FLC 92-254 the Full Court (Ellis, Strauss and Lindenmayer JJ.) said at 78,711:
…Orders for costs are peculiarly a matter which are within the discretion of the trial judge and it is only in the rarest of cases that the Full court should interfere with a costs order.
In Pennisi and Pennisi (1997) FLC 92-774, the Full Court (Nicholson CJ, Barblett DCJ and Faulks J) said at 84-544:
… this Court should be reluctant to interfere with a trial Judge’s discretion as to costs but that if the result is plainly unjust or if the discretion was exercised on the wrong principles then the Full Court must interfere…
The paucity of material from the husband was the basis of the submission of the wife as to why the husband’s appeal against the costs orders should be dismissed. It was submitted in relation to the indemnity costs order :
3.2As to Order 1(4) of the Orders made on 4 September 2008 the husband has not made any Submissions as to the substance of his appeal against the Order for costs made against him by the trial Judge or that support the terms of his appeal and it is submitted that the Appeal be dismissed.
It was also submitted by the wife in relation to the costs of the appeal as follows:
3.1As to Order 1(3) made on 19 May 2009 the Appellant husband has not made any submissions in response to the submissions made on behalf of the Respondent wife filed 24 September 2008. The submissions that have been made do (not) relate to or answer those submissions. It is submitted that in all of the circumstances an Order should be made for the husband to pay the wife’s costs of the Appeal.
[. . . ]
3.3That the Summary of Argument and List of Authorities filed by the husband on 9 June 2009 being without substance or merit that the Court be justified in granting Orders in favour of the wife in respect of her costs of the Appeal, the trial and all Interim proceedings and Applications engaged in by the husband since the Orders made by His Honour Justice Cohen on 22 January 2007.
The independent children’s lawyer position as set out in the submission drawn by counsel was similar to that of the wife. It was there said :
2.The notice of appeal does not identify any specific grounds of appeal beyond a complaint that the order is punitive in the circumstances. The notice of appeal otherwise largely repeats the appellants grounds for seeking to appeal the substantive orders.
3.The Independent Children’s Lawyer has not been served with any summary of argument from the appellant which might assist in determining the basis of his appeal.
[. . . ]
16.Section 117(2) and the authorities cited above demonstrate that there is a very broad discretion in the trial judge to award costs. In the circumstances of this case, the appellant has not demonstrated that the discretion miscarried.
In our opinion there was no material advanced by the husband which properly addressed the issue of whether his Honour should have made an order for indemnity costs. In addition, there is nothing that we could discern from the various material filed by the husband or on his behalf, to consider the exercise of his Honour’s discretion inappropriate. Further, having carefully read the reasons of his Honour, whilst we might not necessarily have made those orders, that is not the test. There is nothing in the reasons from which we could say that what his Honour did was plainly unjust or that his discretion miscarried having regard to the findings that had been made.
The husband’s appeal must therefore fail.
In respect of the costs of the appeal, the husband has not put forward any material to assist us. There is no application before us for an order for indemnity costs and we would not make such an order. The same considerations of Cohen J as to the basis of making any order for costs apply in respect of the appeal. Nothing has been shown to say that that should not be the case here. Accordingly, the husband is ordered to pay the costs of the wife and the independent children’s lawyer of the appeal.
I certify that the preceding Twenty Eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Faulks DCJ, Coleman and Cronin JJ
Associate:
Date: 6 September 2011
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